paul smith's Snaps & Bytes e-home
September 2007: PAUL'S PIECE - Adult Broadcasting - Issue 50.
There are a few topics that split opinion in the UK's adult entertainment industry. One of them is the long running mail-order issue, which is currently good for foreign-based distributors but bad for British shops. Should the law change, it could end up good for British distributors and bad for our shops instead - which is preferable, I suppose? Another opinion-splitter is adult broadcasting. Theoretically, the power to be in almost every sitting room, lounge and living room in the country should be a good thing for the porn industry, but again, DVD sellers would be adversely affected. The attraction of adult broadcasting is convenience for the consumer. Televisions are likely to be everywhere they like to watch porn at home (in the bedroom and in front of a sofa) and there's no need to make a special trip to a specialist shop to suffer the embarrassment of purchasing Hot Trannies only to discover it's a 34 minute documentary on overheating radios of the 1960s. Yet the reason why TVX and PlayboyTV etc. haven't yet conquered the porn world is the very reason why television is an attractive platform in the first place; ease of access.
What we watch on television is closely monitored by the Office of Communications; Ofcom. Their duties are set down in the 2003 Telecommunications Act, which they took over from the Independent Television Commission ("We're here to ITC some common sense", the patronising adverts used to go) on the 29th of December 2003. It also took on the regulatory responsibilities of the Broadcasting Standards Commission (BSC), Oftel, the Radio Authority and the Radiocommunications Agency. Clearly an organisation with a lot of power, I sent them some questions and got replies astonishingly quickly for a publicly-funded body (which sounds like that 'sponsor my boob job' web site, myfreeimplants.com).
More seriously, I asked what are Ofcom's criteria for deciding what is acceptable and what is not for broadcast in/to the UK. While I imagined complaints are looked at on a case-by-case basis, were there clear lines which specifically adult broadcasters shouldn't cross, and if so, what were they? With the BBFC now passing erect penises and even visible penetration in 18-rated films, had Ofcom's guidelines (or interpretation of them) also moved with the times? An official Spokesperson responded. I asked for their name, and was told, darkly, "we don't use individual names"…
Ofcom's criteria is quite simple and hasn't changed. No films that have an R18 certificate may be broadcast. Unclassified adult material (e.g. video that has not been submitted to BBFC; or live 'performance' etc.) may not be shown if it is equivalent in strength to R18 standard. No material refused a BBFC certificate may be shown.
As you say, issues are looked at on a case by case basis. But the broadcasters are well aware of the limits and don't generally cross them.
Ofcom, of course, is NOT a film classification body, and doesn't seek to imitate the role of the BBFC. For example, we don't necessarily judge material frame by frame, as the BBFC would do. However, our judgements about what "adult sex material" may be transmitted under encryption are rooted firmly in the broad BBFC guidelines on what is acceptable in "sex works at 18" (i.e. those films whose sole or primary purpose is sexual stimulation). There are no other "guidelines", except those published on our website.
Finally, the BBFC has indeed classified a few general films with erections and penetration as "18", but only in a very rare number of instances - and not "sex works at 18". There has been no fundamental change to Ofcom's position. We remain entirely consistent with BBFC standards in this regard.
I found the inclusion of 'generally' when talking about limits not being crossed interesting. It seems to happen more than you'd expect; according to a report on Ofcom's site, one broadcaster broke the rules on no less than six occasions in December 2003 to January 2004. XplicitXXX got away with a warning at the time, but you'll read more about them later…
Having seen the size of my neighbour's steerable dish, I wondered if there'd been situations where programmes intended for continental Europe have been received in the UK, and complained about. If so, what powers, if any, did Ofcom have to stop or fine the foreign broadcasters.
There have been three cases in recent years where a broadcaster has been fined for the transmission of R18 type videos (Playboy TV; XPlicitXXX and You TV2). In all cases, the broadcaster indicated the transmission was a mistake, caused by incorrect identification of explicit material or by technical error. We are not aware whether the tapes themselves were intended for continental Europe via other platforms - they may have been uncut versions awaiting editing. In any event, such material should not have been broadcast in the UK, and the transmissions raised issues about internal compliance procedures at those broadcasters.
Ofcom has powers under the Communications Act to recommend to the Secretary of State that overseas channels broadcast into the UK may be proscribed if they repeatedly broadcast material that is harmful or offensive. Only one such recommendation has been made since the formation of Ofcom. That was against a channel called Xstasi. This channel specialised in extreme sado-masochism and included material that went very far beyond BBFC R18.
As I read this response, only very extreme material from outside the UK is likely to draw attention, while British-based broadcasters could be -and have been- fined thousands of pounds (£100,000 in the case of You TV2, according to Ofcom's web site) for showing R18-level content. Perhaps this is why my neighbour invested in a two metre dish that wouldn't look out of place at Goonhilly. However, another hi-tech method of getting porn has seen rapid growth and changes over the last few years; the Internet.
With developing technology, particularly IPTV, having the potential to bypass their current broadcast-specific remit I speculated how Ofcom might react (if at all) in future. I'd heard talk of a 'double pin' system, to verify both age and 'desire' to view R18-level broadcast content, allowing adults to 'opt in' to pornography and wanted their comment on this.
a) Ofcom has no plans to extend its current remit. However, we are examining in detail the implications of the new European Audio-Visual Media Services directive (AVMS), which will require member states to regulate all television-like output on whatever platform.
b) Domestically, it has always been the position that Ofcom is not opposed to R18 material per se - but is not yet convinced that adequate security mechanisms are available to prevent access by under 18s (as is required under the Communications Act). We have stated publicly that we are willing, in due course, to look again at the restrictions - if more robust systems become widely available.
Here's a warning, and a challenge. The warning is that IPTV may yet be included in an EU umbrella directive, and the challenge is for the industry to develop a suitably robust system so miners can't access programming intended for an adults-only audience. As it's quite possible to buy an R18 DVD and accidentally leave it in a DVD player, it seems the ultimate responsibility is on parents to restrict access to unsuitable material. But unless broadcasters take responsibility for their programmes and create a reliable firewall between underage viewers and TV porn, TV porn's not going to happen. At least not legally, which lead me to ask for public-domain details of any cases regarding adult broadcasters who'd overstepped the mark - and of any adjudications where complains from the public about content hadn't been upheld. Was I right in saying Ofcom could only respond to complaints, and if so, was that limited to individuals, or could businesses or other agencies complain?
Ofcom does not have to wait for complaints before making a response, and we are entitled to exercise our discretion. However, it is a matter of policy that issues concerning "offence" are usually investigated after a complaint is made (i.e. when there is evidence of offence actually being caused). The situation with R18 material is slightly different, because the rules relate to protection of the under 18s, rather than to "offence". There is an absolute ban on such material - and we would not be dependent upon complaint before intervening.
It is also the case that complaints may be made by individuals, agencies or rival broadcasters. All are treated on their merits.
I have outlined the three recent cases concerning R18 material above. There is one additional case currently under investigation, but it would not be appropriate to divulge details until the inquiry is complete.
There have also been complaints about non-R18 material transmitted in free-to-air in previews; and about "babe" channels. In broad terms, our approach to this is that if output amounts to "adult sex material" (i.e. equivalent to BBFC "sex works at 18") it should be transmitted under encryption.
I wanted to know, on the subject of live performances which are un-BBFC-classifiable by their nature, were these given any leeway next to pre-recorded material. I could see how it's a more serious transgressing to broadcast an R18 film in full knowledge of its content than would be for actresses to get 'carried away' in a spontaneous situation, and for the cameraman/director to be slow in reacting to change the camera angle to a 'I know what's going on but I can't see it' one. Or tell the girls to behave. Were such things considered when judications are made and fines issued?
As stated before, each case is judged on its merits. If a complaint is received and there appears to be a breach of the Code, it is for the broadcaster to make representations to Ofcom about the particular circumstances. These are considered. We expect all broadcasters to have robust compliance systems in place to ensure the Code is not breached.
With BBFC's 'sex works at 18' being ok if broadcast under encryption, I sought clarification. I was under the impression that all broadcasts of R18-like material contravened the Communications Act, encrypted or not. Not owning satellite/cable TV myself (I'm even resisting a Freeview box for now!) it could be I was 10-15 years behind the times. So I asked for a simple explanation of the encrypted/unencrypted and subscription situation. If R18 via an encrypted source was alright, didn't that amount to the 'robust system' of viewer control Ofcom referred to earlier, so long as it was married to a reliable age verification method?
I think you misunderstand some of the terms being used. You are confusing "R18" with "sex works at 18". They are different things.
Let us be quite clear: NO material passed at BBFC "R18" (or material of equivalent strength) may be transmitted on UK television - regardless of encryption. This is Rule 1.25 of Ofcom's Broadcasting Code. The rule is rooted in the requirements of the Communications Act (Section 319) which requires Ofcom to ensure the protection of persons under the age of 18. The Ofcom Board concluded that current security mechanisms were insufficient to protect children from access to this sort of material.
"Sex works at 18" are NOT the same as BBFC "R18". They are a category of films whose primary purpose is defined as sexual arousal or stimulation, but which - nevertheless - are classified at the lower level of "18", as opposed to "R18". This lower level adult material may be transmitted on adult channels, under encryption. "R18" may not.
In line with audience expectations, unencrypted channels may not transmit "sex works at 18" (i.e. adult sex material) - or material of an equivalent strength.
So 'Sex works at 18' is essentially softcore -tits and ass, visible vagina but no penetration- type content that's a step up from what the big 5 terrestrial channels broadcast. With their change to digital format, the extra bandwidth this gives them for channels (the recently launched Channel 4 +1 being a good example), and the ease of adding encryption to digital signals, I'd not be surprised to see a 'late night' service from a couple of them. Documentaries about porn rather than straight porn, of course. They still have their educational remit to think of.
One last thing -now I sounded like Columbo- I wanted to include the URL for the guidelines pertaining to adult-content broadcasters on Ofcom's website for those interested. I was very grateful when the surprisingly helpful media office at Ofcom pointed me the right way again. My thanks to them for their help with this article:
The rules can be found here: http://www.ofcom.org.uk/tv/ifi/codes/bcode/protectingu18
The guidance notes are here: http://www.ofcom.org.uk/tv/ifi/guidance/bguidance/guidance1.pdf
The argument over harder adult broadcasting is a stalled one at the moment - even more so than the moot point of films by mail-order. Unless there's a radical change in legislation and some stiff safeguards built in -TV remotes with fingerprint recognition built into the Blue Button, perhaps- it seems very unlikely you'll be seeing anything saucier via terrestrial or satellite TV, encoded or not. Nevertheless, existing limits will continue to be tested, pretty carefully. With XplicitXXX getting a £50,000 fine for showing a free-to-air 6-minute loop of simulated intercourse, oral sex, masturbation and orgasm -albeit with some explicit captions, and most seriously, for an hour and a half, starting at 8.30pm- in April 2004, no wonder broadcasters are cautious. The maximum fine for XplicitXXX's serious breach of code could have been £250,000, which would take the fixed toothy smile off any TV executive's face.
With an investigation into a leading UK adult broadcaster ongoing, which may relate to a live broadcast I've heard a lot about since June, you can expect some big names in Adult TV among the first IPTV channels to stream into viewers' homes via broadband. Until the Internet is regulated as films and TV are (beyond current Obscene Publications Act lines) this could offer adult broadcasters a promised land of hardcore opportunities. Stay tuned!
Epilogue:
I approached Television X and PlayboyTV amongst other UK broadcasters to get their view on the current legislation and their hopes and plans for the future. I was particularly keen to speak to PlayboyTV as I know they were fined £25,000 in May 2004 for stepping over the line- broadcasting an R18 film. At the time of writing I'm unhappy to report I've received no response to my emails and phone calls. Television X needs a special mention here, for supplying me with a selection of phone numbers which were, variously, never answered, unobtainable, a fax line, and kept me on hold for 10 minutes at 10p per minute. When I did get to speak to someone in the right department, they assured me they were keen to add some balance to my piece. Just not keen enough to reply before my 5pm deadline. They're probably waiting for the watershed!