Mistress R’eal appeal – dominatrix not bound by VoD ruling

Ofcom has upheld an appeal by Melanie Lumb against a determination by Ofcom’s former co‑regulator, Authority for Television On Demand (ATVOD). Ms Lumb had posted video content on an adult online “dominatrix” service, known as “Mistress R’eal”, which was hosted on the Clips4sale adult content platform. In its determination ATVOD found that the Mistress R’eal service was an on‑demand programme service (ODPS) for the purposes of Part 4A of the Communications Act 2003.

But Ofcom found that the service did not constitute an ODPS for the purposes of the Act at the time of the ATVOD determination. In this case, while the service’s principal purpose was the provision of audiovisual material, its form and content were not “TV-like” and the service did not, in all the circumstances, compete with broadcast television. But Ofcom noted that, even if an audiovisual service is only accessed by a limited number of individuals or its financial turnover is low, that does not mean that it could never compete with broadcast television.

Regulatory background

Part 4A of the 2003 Act regulates any video-on-demand services that can be categorised as an ODPS. One of the key criteria for an ODPS is that “its principal purpose is the provision of programmes, the form and content of which are comparable to the form and content of programmes normally included in television programme services”. The Audiovisual Media Services Directive (2010/13/EU) provides that such regulation should only apply to “TV-like” services, and not services that are primarily non-economic or that do not compete with television broadcasting.

The other criteria for an ODPS are typically fulfilled by UK-based audiovisual services (and these were not in issue in this case), namely that: access must be on demand; there must be a person who has editorial responsibility; the service must be available for use by members of the public; and the service provider must be based in the UK.

Where a service is an ODPS, its provider is subject to a requirement to notify ATVOD and to pay a fee. The provider must also ensure that the ODPS meets certain regulatory requirements.

ATVOD determination

Following several investigations of the Mistress R’eal service, ATVOD informed Ms Lumb that the service was an ODPS under the 2003 Act.

In April 2015, ATVOD issued a determination, stating that: (a) the provision of such videos was the principal purpose of the service; and (b) the service contained programmes whose form and content were comparable to that of programmes included in television programme services. Accordingly, in ATVOD’s view, it was an ODPS. Ms Lumb appealed.

Ofcom’s ODPS assessment

In assessing whether the service was an ODPS, Ofcom considered three questions:

1. whether, as a whole, the principal purpose of Ms Lumb’s service could be seen as the provision of audiovisual material;
2. if so, whether, if taken as a whole, the form and content of the audiovisual material on the service could be considered comparable to the form and content of programmes normally included in television programme services (i.e. considered “TV-like”); and
3. in any event, whether a user would regard the service as competing with linear broadcast television.

Principal purpose

The service was hosted on the Clips4sale website, which hosted a large selection of individually controlled services, and within a standardised format provided access and a purchasing mechanism for audiovisual content. Each service had its own extension of the Clips4sale URL.

Ms Lumb did not contest that she had editorial control over the content of the service, and the terms of the Clips4Sale website confirmed that Clips4sale was “merely the hosting provider for our Studio Members to display their content”.

The entry page to the Mistress R’eal service included an image of the service provider in character as “Mistress R’eal”, along with information describing the dominatrix services offered. Images from ten videos were displayed, along with descriptive text, an option to buy, and information on the video’s length, file type and price. Once a user clicked on an image, a video player opened where a short clip of the relevant content could be viewed. Users could then click on a link below the image to purchase the relevant content and then access the full video by clicking on the “Buy Now” option. A user could navigate to other pages, each of which displayed a further ten videos.

Ofcom noted that, although the service was not branded as TV and was merely laid out as a basic list of available videos, the overall content, lay-out and navigability of the site suggested that users were most likely to access the service with the intention of viewing videos. Accordingly, Ofcom found that the principal purpose of the service was the provision of audiovisual material for the purposes of section 368A(1)(a) of the 2003 Act.

Comparability

In assessing whether the service was TV-like, Ofcom considered the following criteria:

1. Duration of the clips – Ofcom referred to its Channelflip Media decision, where it recognised that short-form content may be “more likely to be typical in some genres, such as children’s programming and adult content programming”. Here, Ofcom found that while the material on the service was adult content, the duration of clips was relatively brief, even in the context of adult content: most of the videos were between two and nine minutes, and the average video length was 6.7 minutes.
2. Narrative structure – Ofcom noted Ms Lumb’s argument that the videos had no opening or closing credits (as was the case). But Ofcom considered that, while this can be a feature that makes content less comparable to programmes available on linear services, it is not determinative, and a lack of credits is a feature of some linear provision of adult content.
3. Completeness and continuity of storylines – Ofcom also found that, contrary to ATVOD’s finding, the videos did not appear to have been edited into episodes or individual programmes in such a way as to invite viewers to move from one video to the next. The videos appeared to be excerpts from longer sessions involving a dominatrix and client. As such, the individual clips did not constitute complete programmes, nor was there an attempt to offer a continuous viewing experience.
4. Autoplay – Ofcom noted the lack of an autoplay feature that would allow the shorter clips to be added together into a more cohesive, TV-like experience for the viewer.   There was also no introduction, conclusion or clear narrative structure in the videos, and some of the videos consisted of Mistress R’eal speaking into a webcam without any other participants. Videos of this kind were, according to Ofcom, more typical of user-generated content than a TV-like experience.
5. Production techniques – Ofcom found that there was limited knowledge of and funds for the kind of production techniques more usually associated with linear television. Ofcom noted the low production quality of the videos, in that no professional equipment was used for the audio and the lighting, and the content appeared to have been filmed using basic, consumer-grade cameras. Further, most of the videos were filmed in one location, and many were unscripted and lacked any narrative, and there was no music to accompany the scenes. In Ofcom’s view, the videos were again more typical of user-generated content than a TV-like experience.

Accordingly, Ofcom found that that the Mistress R’eal audiovisual content available on the website was not sufficiently comparable in form and content to the type of adult material found on linear UK television programme services to fulfil the “TV-like” criterion.

Competition with broadcast television

Given the lack of comparability, Ofcom considered whether the Mistress R’eal service was likely to compete for the same audience as linear television broadcasts, and whether the nature of that material would have led users reasonably to expect regulatory protection within the scope of the Audiovisual Media Services Directive.

In considering this, Ofcom found it necessary to consider the three-step test established in its Sun Video decision:

1. whether a user wanting to watch programmes normally included in linear television programme services would have considered video material on the Mistress R’eal service as among his/her competing options;
2. when viewing such material, whether the user would have considered him/herself to be watching a programme service competing with linear television; and
3. when doing so, whether that user would have expected what they are viewing to be regulated as television programmes, in the ways provided under the Directive.

Given the lack of comparability with TV programmes, Ofcom found that a user wanting to watch programmes normally included in linear broadcast television would have been unlikely to have considered the audiovisual material as among his/her competing options, because it was too dissimilar to such TV-like material. In particular, it was not comparable to “adult material” broadcast for the primary purpose of sexual arousal or stimulation that may be shown on premium subscription services and pay-per-view/night services (albeit subject to restrictions), and that a user of the service would not consider himself/herself to be watching TV-like content. For the same reasons, a user would not reasonably expect the material on the service to be regulated as television programmes in the ways provided under the Directive.

Ofcom also considered the fact that the service had a low membership and financial turnover, but did not consider that factor decisive in its own right. In her appeal Ms Lumb had cited Recital 21 to the Directive, which confines the scope of services intended to be regulated under the Directive to mass-media services that “are intended for reception by, and which could have a clear impact on, a significant proportion of the general public” – i.e. not services that are “primarily non-economic and … not in competition with television broadcasting, such as private websites and services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange with communities of interest”. Ms Lumb contended that her video content fell within the latter category, citing also “the limited nature of the video content and context” on the service and the “very limited nature of its reach” (i.e. 14 members with monthly gross income of $124.53) as a strong indication that the service was not “comparable to or in competition with linear TV programming”. But in Ofcom’s view, the fact that a service was viewed only by a limited number of people did not necessarily mean that it could not be in competition with broadcast television. Taking all the factors into account, Ofcom decided that the service was not in fact “primarily non-economic” in nature within the meaning of Recital 21, albeit not competing with broadcast television on the facts.

Ofcom’s conclusion

Accordingly, Ofcom concluded that Ms Lumb was not the provider of an ODPS at the relevant time of the ATVOD determination and upheld Ms Lumb’s appeal and substituted its decision for ATVOD’s. Consequently, Ms Lumb was not in breach of the advance notification requirement under section 368BA of the Act, the requirement to pay a fee under section 368D(3)(za), the prohibited material requirements under section 368E(2) and the specially restricted material rules under section 368E(5).

Comment

The approach taken by Ofcom in reviewing the Mistress R’eal appeal appears to conflict to some extent with the reasoning in the recent ruling of the Court of Justice of the European Union in the New Media Online (Case C-347/14), where the CJEU found the length of a video to be irrelevant when considering whether a service falls under the Directive. Contrary to the CJEU’s recent findings, in Ofcom’s reasoning the short length of the videos counted towards Ofcom’s finding that the services were not “TV-like”. But the length of the clips was only one of the considerations that Ofcom took into account, and more weight was given to the lack of narrative structure and the low production quality of the videos.

In its determination ATVOD had concluded that the Mistress R’eal service was TV-like, while conscious of Ofcom’s ruling on the “Urban Chick Supremacy” service (14 August 2014), in which Ofcom had overturned ATVOD’s determination, finding that the service was not TV-like. But ATVOD considered the Urban Chick decision to be “a narrow precedent relating to an unusual service” and believed that it should be distinguished from the Mistress R’eal service. In the Urban Chick decision, Ofcom had found that, although the short duration of the videos was not inconsistent with adult content linear programming, Urban Chick was not a service that was likely to compete for the same audience as linear TV broadcasts. As with the Mistress R’eal service, there was no narrative structure and the production techniques were amateur. In addition, there were no credits and the videos were not self-contained. In other words, Ms Lumb ultimately proved to be right in arguing that the Mistress R’eal service was clearly similar.

Juliane Althoff, Associate, Michael Simkins LLP