June 14, 2016

In July 2015, i.e. before its demise, ATVOD determined that the service “Dreams of Spanking” at dreamsofspanking.com was at the relevant time an ODPS as defined by Part 4A of the Communications Act 2003.

The Appellant, Pandora Blake, appealed the decision to Ofcom, contending that the service did not constitute an ODPS and that she was therefore not required to notify the service to ATVOD or pay a fee. Ms Blake argued that s 368A(1)(a) of the 2003 Act was not satisfied as the “principal purpose” of the service was not the provision of video, the form and content of which was “TV-like”.  Further, she said, the service was “primarily non-economic” in nature.  It was a niche outlet aimed at the distribution of audiovisual content generated by private users for the purposes of sharing and exchanging with a community of interest and was not mass media within the meaning of Recital 21 of the Audiovisual Media Services Directive (2010/13/EU). In addition, Ms Blake argued, the service was not in competition with linear television within the meaning of Recital 24 of the Directive.  In 2014, it had a limited subscriber base and generated limited revenue, which meant that it could not be considered to compete for the same audience as TV broadcasts.

Assessing the “principal purpose” of the service, Ofcom found that whilst the service offered a significant number of videos of a substantial duration that could be understood and watched fully on their own, it did not consider this audiovisual content to be a distinct service from other, similarly prominent aspects of the site.  The evidence showed that the audiovisual material was integrated together with other types of content, such as photographic material, such that it was indissociable from that material and complementary to the overall offering of the service, which was a fetish interest website.

In light of that assessment, Ofcom did not need to consider in further detail whether the nature of the video content on the service was “TV-like”.

As for Recital 21 and whether the service was “primarily non-economic”, Ofcom said that the fact that a service is viewed only by a limited number of people does not necessarily mean that it cannot be in competition with linear TV.  In Ofcom’s view, the service was capable of being accessed by a larger audience, and as such, the limited audience of the service did not of itself mean that the service was “primarily non-economic” in nature.  However, given that it had already found that provision of the video content was not in itself a principal purpose of the service, Ofcom did not consider it necessary to come to a conclusion on this point.

As for Recital 24, Ofcom had already found that the video content on the service was not a standalone service but an integrated element of the overall offering.  Therefore, assessing the service as a whole, it was not likely to directly compete with adult television broadcasting services for the same audience.

Ofcom concluded that the service was not an ODPS within the meaning of s 368A(1) of the 2003 Act as at the time of ATVOD’s Determination. Consequently, Ms Blake was not in breach of the advance notification requirement under s 368BA of the 2003 Act and the requirement to pay a fee under s 368D(3)(za).  To read Ofcom’s decision in Ofcom Broadcast and On Demand Bulletin, Issue 306, 6 June 2016, click here.