Out-Law News 3 min. read
12 Aug 2011, 2:35 pm
Video content is defined as being on-demand if the video content can be viewed any time by internet users; if a company has editorial control over it; if it is publicly available over the internet, and if it is being provided from the UK, according to the EU's Audio Visual Media Services Directive (AVMS Directive).
The UK Communications Act makes Ofcom, the UK's communications regulator, responsible for considering the vulnerability of children when conducting its regulatory duties.
Ofcom said that material that would be rated as suitable for adults aged 18 years or over by the British Board of Film Classification (BBFC) should only be available through VOD services with "appropriate mandatory restrictions".
The BBFC is an independent regulator of films, DVDs and video games and classifies 'video works' for viewing in the home in accordance with UK law.
Material that the BBFC would rate stronger than suitable for adults 18 years of age or over should be completely banned from UK VOD services, Ofcom said.
"We recommend the Government introduce new legislation which would specifically: prohibit R18 material from being included in UK-based VOD services unless appropriate mandatory restrictions are in place; and prohibit altogether from UK-based VOD services material whose content the BBFC would refuse to classify i.e. material stronger than R18," Ofcom said in a report (146-page / 1.34MB PDF) on Sexually Explicit Material and Video on Demand Services.
The BBFC does not rate TV content or programmes for VOD services but its ratings system should act as a guide for those purposes, Ofcom said.
The EU's AVMS Directive states that "if an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it”.
The exact wording of that section is included in the UK's Audiovisual Media Services Regulations (AVMS Regulations), which were introduced in 2009 to implement the EU Directive.
The wording means that currently UK-based VOD services must include control mechanisms to prevent children accessing R18 content freely. The most popular restrictions include the use of four-digit PINs and/or 'paywalls' that only allow credit card holders over 18 years of age to access content, Ofcom said.
The AVMS Directive sets out slightly different rules covering traditional television broadcasts. Content that could "seriously impair the physical, mental or moral development of minors" is prohibited entirely whereas content that is "likely to impair" can be shown at times, or by using "any technical measure", when children "will not normally hear or see such broadcasts".
These rules are set out in Ofcom's Broadcasting Code. The Code sets out what broadcasters can and cannot do when producing content.
Ofcom proposed new laws governing sexual content on VOD services after analysing research it commissioned on the harm or risk of harm children face from viewing material that the BBFC would rate as R18. The research did not conclusively prove that access to R18 content "might seriously impair" children, but it "cannot be confidently concluded that sexually explicit material carries no risk to minors," Ofcom's report said.
Ofcom said it considered the views of parents before proposing new laws and said that there was an "absence in the current regulations of a clear standard requiring sexually explicit material of R18 standard (or its equivalent) to be prohibited, in VOD services, unless it is made subject to restrictions". It said the public would support a "precautionary approach" to protecting children.
The Government said it would "secure" changes to the way VOD service content is regulated as part of its review of communications laws.
"The Government is clear that children must be protected from harmful content, on television or online," Culture Minister Ed Vaizey said in a DCMS statement.
"We have made it a priority to address the concerns of parents that their kids are being exposed to material that’s not appropriate for them to see. Without a doubt we want to make sure that video-on-demand services carrying adult material cannot be seen by children and it’s already a legal requirement that any such content has access controls," Vaizey said.
The Authority for Television on Demand (ATVOD), which shares regulatory duties with Ofcom for monitoring VOD services, said that the risk of harm children face from being exposed to explicit sexual videos is "sufficiently great" to force VOD services to prevent children accessing it.
"This support for light touch but effective regulation is welcome, helping answer the concerns of many parents about effective protection of their children," Pete Johnson, ATVOD chief executive, said in a statement.
"While we believe the current law provides sound foundation for the enforcement of our rules, the clarification provided by the Minister should remove any uncertainties. As a co-regulator working with industry, we will be re-emphasising the need for access controls and will work with the adult industry to ensure effective controls are in place. We also look forward to working with government during the review of communications policy," Johnson said.
The Government signalled its intention to update UK communications laws in line with the digital age earlier this year. Changes could come into effect by 2015.
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