ATVOD - make porn? read this.

The Authority for Television On Demand

UPDATE JAN 2016. ATVOD is dead, long live OFCOM. Yes, OFCOM is now directly regulating online video. However all the practical stuff re what's allowed, not allowed, protecting children etc seems unchanged, so read on. :-

These are the quick and dirty notes for girls selling via Adultwork and Clips4sale and other similar sites/networks

1) They do not seem to be properly compliant with ATVOD's rules re preventing people under 18 from buying porn. Which is a problem because as the producer, your job includes ensuring that the way you sell complies with ATVOD.
2) From what I hear, ATVOD is more focused on people who break the new R18 limit on content - which places limits on certain fetish, BDSM and CP material. If you make that, you really are waving a "come get me" flag if you sell stuff that wouldn't get an R18 rating. ATVOD has only so much time, money and people, and has to prioritise.


What to do? Don't panic - if a you're a girl selling a few R18 clips and scenes to fans you're probably not important enough for ATVOD to worry about yet, and even when they do, all they do at first is tell you to sort yourself out or stop selling, so you can decide then.


Besides, they might become fully compliant over the next few months - (it's certainly in their interests to do so) - and thus resolve the problem.


There are of course other ATVOD and VAT compliant options - though IMO they are better suited to girls who have built a decent fan base and understand how to market and promote themselves - e.g. TubsTV ATVOD and VAT compliant sites for girls.

Main Text

UPDATE MAY 2015 ATVOD meeting with various people explored issues, but summary is "guys, there are rules, time is up for messing around", but also indications that if the industry speaks with one voice then PROVIDED that they are following the Age Rules (the Gvts main concern) then sensible discussions may had with BBFC etc about Content. Also seems that the global porn co's are talking about Age Verification because they see the UK as leading the way and that political reality means they expect similar rules in other countries in due course. Even the Yanks seem to accept that their constitutional right to freedom of speech can be contextualised to "freedom to speak to adults if the speech is unsuitable for children"

UPDATE NOV 2014 New laws that tidy up various issues - esp that all content must meet R18 rules. and also, for good detailed guidance re what is, and is not, R18 - this excellent article

UPDATE FEB 2014 - ATVODS formal guideance. Read it AFTER you read the article below.

UPDATE AUG 2014 - ATVOD vs Urban Chick. Urban Chick - http://uc-sc-femdom.com - won their case (do read their hilarious repost to ATVOD's attack http://obscenitylawyer.blogspot.co.uk/2014/08/dominatrix-beats-regulator...) , but don't assume that this victory is your get out ATVOD free card re your normal commercial porn site. Not without talking to your lawyer anyway.

DATELINE - MARCH 2013

The following article represents my views having spoken with various people, including Peter Johnson, who happens to be the Chief Executive of ATVOD. The emails with him were this week and the conversation was today.

You will also find this video useful - it was filmed at Xbiz in September 2013 - http://www.youtube.com/watch?v=K3h6fib7mXo&feature=youtu.be

You don't have to agree with what I say, hell, I don't like writing a lot of what I have had to write, and so I'm happy to let carefully thought out comments stand. But ranting is no good.

It's worth wading through. For SPECIFIC information regarding your specific situation, talk to ATVOD, and if you don't like what they tell you, maybe talk to a lawyer. I am not a lawyer.

To hear some people talk you'd think that the whole ATVOD thing is an illegal set up that will come crashing down like a house of cards, given one decent legal push, one man to stand his ground and call their bluff. Those people may be right, but until one them decides to be that test case, (and I'm not seeing many volunteers), this article outlines what the rules seem to be.[UPDATE Jan 2014 - it looks like a legal case may be in the offing - http://bgafd.co.uk/forum/read.php?f=5&i=215757&t=215757]

I've also tried to keep it jargon free. You can catch up with all the jargon on ATVOD's site, but basically, the key jargon is that if you are "a provider of an On Demand Programme Service" then this all matters to you.

There are criteria that determine whether or not you are an ODPS - AIR isn't, no video - but in general if you think you fall into one of the "Who is affected?", then you probably are and you DEFINATELY need to find out.

ATVOD is our very own regulator.

Who is affected?

Lots people, including many small producers, models with AW accounts and the like.

  • Do you sell porn video though an online service that you have editorial control over? Then you are affected.
  • Do you make porn but not get involved in the sales process? (No, really, you don't). Then you probably don't need to join ATVOD. E.g.
    • If you make film and sell it to TVX or suchlike and they distribute it on their website, they need to be in ATVOD. But you don't. You made the content but had no involvement in distributing it. So selling stuff to YourChoice or HomeGrown seems to be fine. There is clear blue water between your role as the creator of the material, and theirs as the distributor. But talk to ATVOD, be sure.
  • You make the porn and somehow work with a partner on distribution. Whether or not you need to be in ATVOD will depend on the detailed facts of your business. Talk to ATVOD.
  • Putting it on your own website. You have editorial control of your site so you would need to be in ATVOD.
  • Putting it on Clips4Sale or AdultWork or other such third party sales platform. You have editorial control over your account, that means it's a service that comes under the ATVOD rules. You need to join ATVOD. Note - Your platform must allow you to comply with the rules regarding not selling to minors.
  • Some level of partnership arrangement with overseas partners. In order NOT to be covered by ATVOD you have to be confident that a normal person in full possession of all the facts would agree that you do not have editorial control over the service. Talk to ATVOD, and/or a lawyer.

Note that it doesn't cover stills only (unless used to market video) and it doesn't include live camming, (but if you record your shows for people to download, it does).

What does it mean for me?

It means that if you are running a service over which ATVOD has a remit, you need to join ATVOD and abide by it's rules. The good news is that it's not very expensive - most small businesses will pay just about the same as a TV licence.

The critical rule being, "Don't let children have access to your porn".

It's what that rule implies for your business that annoys everyone. It makes it harder to compete for sales against unfettered foreign competition. But we're stuck with it.

Marketing material

This is all the stuff that is front of house on your site/channel/account, and out there with affiliates, forums, on twitter, facebook etc and serves to bring people to your service.

I have been told there is a difference between the material on your site/channel, and that which you might have given to affiliates to use elsewhere in order to bring you traffic. The former has to be soft, the latter, not so.

So one of the questions I asked Peter Johnson today was about this and his response was that although they haven't yet made any formal decisions re marketing material that is away from the registered service they note :-

  • That material placed on a service such as a Tube might in fact be a whole new Service in it's own right.
  • That material in the path to AVS might include material that is away from the service. (Basically they haven't formally defined how far the "path" might stretch from the registered service domain/site).

He is clearly very focussed on the simple principle that, and I'm paraphrasing but you get the gist, "if it should be behind the paywall, no cunning constructions are going to be used as loopholes". Now he might be wrong, but if you want to play that game keep your eyes on ATVOD because when they get around to making a formal decison, if you are on the wrong side of it, you'll need to jump quickly or lawyer up, according to temperment and budget.

So, must your marketing material be soft? Onsite, yes. Offsite, maybe, maybe not, but make your choice with your eyes open. My take - it's on ATVODs ToDo list.

What is hard and what is soft?

The rules focus on certification levels, but of course that is for video. R18 type material is hard and must be behind the paywall. The implication is that if it isn't R18, it's OK out front, but I have not explored the exact details of that. Feel free to start threads, contact AITA etc. That said, big stickers, careful angles and viewers imaginations can work wonders.

Note that to have material that is too extreme to get an R18 would be a breach of ATVOD rules no matter where located.

  • What is R18?

ATVOD is normally happy to follow the BBFC's lead on what is, or is not, R18.

It's probably fair to say that :-

  • If your stuff is vanilla, i.e. R18 without a shadow of a doubt, you don't need to get a certificate from the BBFC and shouldn't have any trouble with ATVOD.
  • If your stuff is at all borderline, then putting it through the BBFC gets you a safe harbour.

Payments

Your payment system must ensure that only adults of 18+ can buy your porn.

You can do this by means of AVS systems to ensure that your buyer is 18+, but such sophistication is beyond the scope of most small businesses, (though that is changing as of late 2014 - do some googling for sate of play), so they default to payments that can only have come from someone 18+.

  • At the moment that seems to be Credit Cards only. (Not debit cards or alternative payment systems, just Credit Cards).
  • Be aware that for many payment providers the Credit Card option actually includes these other card types, but they are starting to understand the specific needs of their UK clients, so make sure you emphasize Credit Cards only. Once up, check it by trying to buy with a debit card.

Mobile Payments

Important for business as mobile is a growing area. So I asked ATVOD.

"Do you accept that a site can trust that a phone that has been age verified by the mobile company is good enough age verification to make sales to/via that phone?"

Answer :-

"We are currently reviewing how the age verification process for mobile phone account holders operates with respect to different payment mechanisms."

Hmmm - I would strongly suggest that before adding a mobile payment option you check with ATVOD to see if they have approved it. (If you are reading this and know of an approved mobile billing solution, do post a comment).

Global Responsibility - your obligation NOT to sell to under 18's applies no matter where in the world the buyer lives. You can't just age control for UK buyers.

Platforms - AdultWork, Clips4Sale, MyDirtyHobby etc

  • If you use these to sell your videos that's fine PROVIDED that you ensure that only soft material is available in front of the paywall, and that the platform ensures that they only sell your content to adults.
  • As far as ATVOD are concerned, if you choose to place your material for sale on a platform that doesn't protect children to the required standard, you will be in breach of the rules.
  • So, if UK people and foriegners share the same platform, the Uk person needs to ensure that their "front of house" material follows the rules, but what the others do is up to them and does not impinge on your status.

Platform owners

If you are a platform owner, and wish to be able to tell UK sellers that they can use you safely in compliance with ATVOD :-

  • You basically need a way to tell if any ATVOD members material is in the buyers shopping basket, and if it is, limit payment methods to an ATVOD approved one, e.g. credit card, or have a more sophisticated AVS in place to allow additional methods whilst knowing that only those aged 18+ can purchase.
  • You need to ensure that the seller controls what marketing stills are used, (i.e automated thumbnail extractors are dangerous).

Do talk to ATVOD for more details.

Enforcement

It's coming.

  • ATVOD have fined people BIG money. See below.
  • I originally had lots of detail in here, but basically, ATVOD have powers to get information about you and your sites so if you are doing trivial things like domain cloaking, or having a mate in another country pretend to run your site, think carefully. Domain cloaks can be broken by legally authorised bodies, and if you're out on Facebook and Twitter pushing your wares, and are clearly UK based, just how hard do you think it will be for ATVOD to come knocking?
  • The one thing a regulator really doesn't like is someone who doesn't take them seriously. To quote the great Clint, if you go down that road you have to ask yourself, "Do I feel lucky? Well, do ya?"

That said, it does seem to be that current practice is that when ATVOD become aware of a service in breach, the service is given time to either come into compliance or stop. I don't know what you need to do for them to decide to refer you to OFCOM for sanctions, but clearly they only do that in a minority of cases.

BUT I'M ONLY A SELLING A LITTLE BIT!

And this all seems a bit draconian. And I have been accused of scarmongering for making them clear. I've also been accused of having a hidden agenda. I don't, but I have long wanted to open a clip selling site and in order to ensure it was compliant I decided to look into the details of the rules. If I had wanted to be a bastard I'd have kept the answers quiet until I was ready to launch.

So, draconian or not, but those are the rules. If you choose to break them, do so with your eyes open.

Questions to ATVOD and their responses (slightly edited for clarity).

Q1) Mobiles, see main article.

Q2) How many fines have you imposed (advised ofcom to impose), and how many of those were on adult. How many fines have you advised Ofcom to impose that they have then NOT imposed, (all sectors, not just adult).

Answer :-

We do not impose fines, that power rests with Ofcom. In relation to breaches of the content rules we have to date referred 4 services to Ofcom for consideration of a sanction for breaches of ATVOD Rule 11. All four services offered hardcore adult content. To date Ofcom have published decisions in relation to three of those services, imposing fines of £35,000, £60,000 and £65,000. Ofcom have not yet published their decision in relation to the fourth service.

My notes - I wouldn't want to bet my business on an ATVOD referral for sanction being chucked out by ofcom. Note that ATVOD haven't referred for sanctions ANY non adult business. Which shows you where their enforcement effort is focussed. (Or maybe non adult are all angels, practical effect is the same for us).

Q3 ) Platform sales, covered in main body.

Q4) Does Age Verification only apply to Uk buyers, or globally? E.g. if a site restricted Uk buyers to CC only but sold via debit cards across Japan and the USA, would they be in breach of ATVOD rule 11?

Answer:-

A provider of an On Demand Programme Service has a statutory obligation to ensure that material which might seriously impair the development of under-18s is not normally seen by under 18s. ATVOD interprets this to mean that services which provide access to hardcore porn material must have in place age verification measures and content access control mechanisms which ensure that under 18s cannot access it. ATVOD considers that this applies to all children, not just those accessing the service from within the UK. ATVOD is committed to dealing effectively with any breaches of this rule (Rule 11).

My notes - i.e. yes, your responsibility is to children everywhere.

Q5) If content has an R18 Digital Certificate from the BBFC, do you have to accept that rating? Basically, for fetish and BDSM, is a BBFC R18 an effective safe harbour?

Answer :-

ATVOD's published guidance makes clear that material which might seriously impair under 18s (and which must therefore be kept out of their reach) includes material classified R18 by the BBFC or any material equivalent to that classified R18. Material classified 18 by the BBFC would not normally be considered to be material which might seriously impair under 18, but we will consider each case on it's merits and are not bound by the classification decisions of the BBFC.

Additional Notes

Other stuff that has cropped up, in no particular order

User Generated Content Exemption

Yes, there is this exemption in the ATVOD rules. Rule 2.19 to be exact. BUT this is modified by 2.20 to exclude users who are commercially motivated, which is backed up in 3.3 , which both confirms the exemption for UGC and the fact that it isn't a loophole for commerce.

So, if you are in this for money, as a content maker, putting your stuff on a UGC platform type site, you are NOT exempt. Putting the local parish news on YouTube, that's what the UGC exemption is for.

Domain Privacy Services

Protect your data from casual browsers of the Whois. But will NOT defend you from ATVOD. You haven't paid anywhere near enough for that.

Read your Privacy service T&C. You'll probably find something like the clauses below, which basically allow then to hand your information over to ATVOD. ATVOD is a regulator, it has authority. It could also argue that they are investigating activities that could harm minors - last para section vii. The letter ATVOD sends will give your privacy provider all the excuses they need to breach your privacy under their T&C. The same applies to privacy services outside the UK - even if they ignore an initial ATVOD letter, if ATVOD get a UK court order, that is enforceable in many countries. And if all else fails, ATVOD can go to ICANN direct.

SERVICE PROVIDER'S SUSPENSION OR TERMINATION OF SERVICE AND DISCLOSURE OF YOUR PERSONAL INFORMATION

If necessary to comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
If Backend Service provider is named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of Your use of the Domain Privacy Protection Services or an Privacy Protected Domain;
If necessary to comply with ICANN's Dispute Resolution Policy or other policies promulgated by ICANN (including policies which may preclude use a service such as Domain Privacy protection);
If it comes to Backend Service Provider's attention that You are alleged to be using the Domain Privacy Protection Services for purposes of engaging in, participating in, sponsoring or hiding Your involvement in illegal or morally objectionable activities, including but not limited to, activities which are designed, intended to or otherwise: (i) appeal primarily to prurient interests; (ii) defame, embarrass, harm, abuse, threaten, or harass; (iii) violate state or federal laws of the United States and/or foreign territories; (iv) involve hate crimes, terrorism or child pornography; (v) are tortious, vulgar, obscene, invasive of a third party's privacy, race, ethnicity, or are otherwise objectionable; (vi) impersonate the identity of a third party; (vii) harm minors in any way; or (viii) relate to or transmit viruses, Trojan Horses, access codes, backdoors, worms, timebombs or any other code, routine, mechanism, device or item that corrupts, damages, impairs, interferes with, intercepts or misappropriates any software, hardware, firmware, network, system, data or personally identifiable information