Mr Peter Johnson
The Authority for Television On Demand Ltd
27 Sheet Street, Windsor, SL4 1BN
20 September 2013
Dear Mr Johnson
You’ve been rather a naughty boy, haven’t you?
It is with regret that I must inform you that I am unable to thank you for your letter dated the 6th of September 2013, for the following reasons:
As I communicated to you on the 5th of July 2013, ‘UCSC intended to submit a definitive declaration concerning ODPS to ATVOD via email (with a hard copy to follow, as requested). Yet, inconceivably, there is an issue that ATVOD’s guidelines do not address. I have been advised to request clarification from you on this point first.
For some inscrutable reason I am unable to find clarification as to what constitutes ‘a significant proportion’ in your Guidance or elsewhere on your website’.
Yet instead of responding to that enquiry (within the 3 days by which you claim to aim to answer all correspondence – according to your Key Performance Indicators), after which I could have produced a reasoned formal declaration, you appear to have avoided the issue by proceeding straight to a PV. This stratagem has afforded the UCSC a mere ten days to respond.
Not a very professional way for a Regulator to proceed, is it?
Regarding the issue of professionalism, since Atvod is not subject to Freedom of Information requests (a subject I may address my MP upon) I resorted to my next remedy: a Data Protection Act subject access request. I duly consulted the Information Commissioner’s register to appraise myself of whom I should send such a request.
Can you possibly imagine my shock and disbelief to discover that Atvod is not registered? So mortified was I by this scarcely credible revelation that I contacted the ICO to confirm this seeming oversight. Could it be possible that a professional regulator such as Atvod had not observed the rules of a fellow regulator? Who regulates the Regulators?
The ICO stated that the Data Protection Act 1998 requires each and every organisation that processes personal information must register with the Information Commissioner’s Office (unless they are exempt) and that failure to do so is a criminal offence.
I was relieved to discover that Ofcom are at least registered.
As I do not wish to see you in possession a criminal record, you may be pleased to know that I did not make a formal complaint.
You are welcome to consider this to be my benevolent gesture towards you, my patriarchal oppressor foe.
Allow me turn to your PVs. Dealing first with Rules 1 & 4, at the outset I should like to express my delight and gratification that you engaged in art criticism. It must be rare for a regulator to possess such a broad range of competencies.
First of all, the artist and creator of the UC-SC project, Ms Itziar Bilbao Urrutia, would like to thank ATVOD and in particular, Peter Johnson, for attempting a critical challenge to the relevance of my work in relation to other contemporary art practices, both contemporary (Relational Art, as I will explain below), and historical (as is Duchamp’s Urinal). I’m flattered that institutions outside the art world, such as ATVOD, acknowledge that art has an impact in our culture. Proof that, contrary to the views of its detractors, contemporary art practices play a critical role in society. Last but not least, I welcome the chance to explain my current ongoing project, The Urban Chick Supremacy Cell – UC-SC, and its place within art history, and in particular, how it engages with contemporary art discourses.
In this case, regardless of the intention behind the website, it does from the user’s perspective contain many of the trappings of more ‘mainstream’ femdom sites: there is a standard listing of fetish categories such as ‘bondage’, ‘strapon’, ‘humiliation’ and ‘watersports’. ATVOD acknowledges that the service also includes features such as blogs and still images. However, the non-audio visual elements of the service appear to be ancillary to the provision of the programmes available. The content also features on its own Clips4Sale Studio, a standard outlet for pornography; the site advertises reviews with the line ‘what the top porn sites and blogs say about UC-SC’, and features links to adult sites such as ‘Lady Sonia’ and ‘The British Institution’.
My project and Femdom adult content website, The Urban Chick Supremacy Cell, is indeed a ‘real’ adult website, that offers real adult content, to real adults, subject to real payment in real currency. It is not a simulacrum in any way of form, nor a representation. As an example of relational art, as formulated by French art critic Nicolas Bourriaud in this seminal 1998 text Estetique Relationelle – Relational Aesthetics (Les Presses Du Reel, 1998). You can read more about Relational Art, here: http://en.wikipedia.org/wiki/Relational_art
That is an essential feature of Relational Art that sets it apart form more traditional formats: the complete blurring of boundaries between the representation and the object represented. My website is a real adult website, but it also a work of art, operating at several different levels, from the erotic to the theoretical and critical (such as its participating on current feminist debate).
According to Bourriaud:
‘relational art produces human relations’
As the UC-SC project clearly does.
Also (from the Wikipedia link above):
‘The artwork creates a social environment in which people come together to participate in a shared activity. Bourriaud claims “the role of artworks is no longer to form imaginary and utopian realities, but to actually be ways of living and models of action within the existing real, whatever scale chosen by the artist.’
In Relational art, the audience is envisaged as a community. Rather than the artwork being an encounter between a viewer and an object, relational art produces intersubjective encounters. Through these encounters, meaning is elaborated collectively, rather than in the space of individual consumption.’
So my website does indeed create a real experience, not a simulacrum of an experince, becaue it certainly not a simulacrum of an adult website. It has to be real, to give the viewer the opportunity to engage in the ‘human relation’ that Bourriaud writes about. Therefore, it is fully usable by the public, who actively interact with the artwork in ways that link to real life and the real world, away form the conventions of simulacra or ‘representation’ of more traditional art. It blurs the boundaries between the object represented and the piece of art, because they need to be both the same thing, to take the artwork away form the traditional passive role as an artifact to be merely contemplated by an individual viewer. Relational artists create art pieces that are meant to be participatory.
‘To look at the service as a whole, and its purpose, we understand that the intention may be that the Service is primarily an art project. (…) You refer to Duchamp’s ‘Urinal’, for instance, but if that urinal had been used as a urinal, this may have affected perception of its ‘purpose’. It is also possible that a website made available on the open internet does not perform the same role or have the same purpose as a website displayed in a public gallery (as you say this website has been)’.
You reply to your suggestion that Duchamp’s urinal would be read very differently, and probably cease being perceived as a work of art, if it was reverted to its original use, is a classic argument one hears among first year art undergraduates. Duchamp’s urinal, first on foremost, has been urinated on many times over the years, the last one by Chinese performance artists and art saboteurs Cai Yuan and JJ Xi at Tate Modern: http://www.global-contemporary.de/en/artists/53-cai-yuan-a-jian-xi-.
This act didn’t change the piece’s status as one of the 20th Century’s seminal works of art that enabled future generations among which I count myself, to ponder and explore in our work the boundaries and the nature of art. If anything, it proves its ongoing relevance as art. Despite the ‘defiling’, and I presume that after being wiped clean by senior conservation experts and art restorers, it is still being exhibited at Tate Modern.
Yes, my website and art project, UC-SC does indeed serve a practical, or as I prefer to call it, interactive purpose of enabling adults to access videos and photo galleries that function at different level: from an erotic narrative within the conventions of traditional pornography, to a serious reflection within current debates in contemporary art (see again Bourriaud). It’s also an ongoing response to concerns within the current feminist debate.
Even though Oscar Wilde claimed that ‘all art is ultimately useless’, 100-odd years after him, current contemporary discourse acknowledges that the artwork can and often has more than one function. Being utilitarian, user-friendly, or interactive, are indeed options asidiously explored by the later generations of artists, among which I count myself. That it can be used, enjoyed, and participated on in more ways than the traditional artwork/viewer found traditionally in art museums and galleries, is one of the basis of much XXIst Century contemporary art.
A perfect example is John Frankland’s public art work ‘Boulder’: (http://www.peeruk.org/projects/frankland/john-frankland.html), two granite boulders set on two London parks, that can and are, indeed, regularly used by climbers, just as any boulder found in nature would. A perfect example of the ‘interactiveness’ of contemporary art and how being ‘the real thing’ doesn’t stop it from being also an important piece of public art.
You say ‘that you claimed the website has been exhibited at art galleries’. Here is a link to the exhibition Genealogies of Spanish Feminist Art, shown at MUSAC (Museo de Arte Contemporaneo de Castilla y Leon), in 2012 (http://genealogiasfeministas.net/itziar-bilbao-urrutia/), and curated by Spanish at critic Juan Vicente Aliaga. This detail is just anecdotal. Perhaps because I am an artist and not a civil servant, I believe that an art work stands by itself, and doesn’t need institutions, nor anybody else, to validate it. However, I pointed at that link to assure you that I am not the only person who recognizes my project The Urban Chick Supremacy Cell – UC-SC , as a piece of contemporary art, and what’s more part of a Genealogy (or tradition) of Spanish feminist art.
With all this, I am only replying to your suggestion that there is only one use and purpose to my UC-SC project, the erotic, and that it invalidates any other purposes, intentions or discourses in it. I am very proud of my project, precisely because it works at many levels and I dispute that the possibility that it might be sexually arousing for some viewers, invalidates its artistic purpose or value. The history of art is full of pieces that were considered too sexually explicit or erotic for public view and as we know, what constitutes pornographic is firmly tied to its time, place and specific culture.
It is with sadness that I must turn to more mundane matters. My principal purpose is NOT the provision of programmes. It is to showcase artistic talent, within a distinct political orientation. Now that the technology to both create and distribute videos has democratised conveying artistic concepts for sharing and exchange within communities of interest as Recital 21 puts it, representing this through online videos is a natural way to give expression to these artistic talents. It is why YouTube is so successful. After artistic & political motives, the provision of programmes is merely a means to an end, and certainly not my principal purpose.
I fear you are allowing your personal tastes to influence your judgment. A problem with Authority down the ages.
Mind you, I sympathise with your predicament. Rebuffed in your attempts to regulate the bigger boys, like Murdoch, you need to find some rationale to renew your contract, and what better and more defenceless target than one person efforts with an adult perspective like those of mine and my milieu. After all, you have nothing to lose. Nothing happens to you if Ofcom knock you back. You face no sanctions.
You say ‘the videos available on the service are comparable in both form and content to broadcast television programmes, notably in this case programmes shown on broadcast adult channels’. An example, please? I shall need to have analysed and compared this channel before the inevitable Ofcom appeal. Do not feel it necessary to wait until your Determination, please take this as a specific question in its own right, for which I expect an answer in the promised number of days. After all, you must have an example in mind to have made such a claim. I hope.
You also say ‘the non-audio visual elements of the service appear to be ancillary to the provision of the programmes available’. We are performance artistes. It even says so on my tax return to HMRC. Performance artistes perform. That’s the whole point. There is movement, action, drama. I have a certain facility with words, but not to the same extent as my visual skills. Just compare the artistic values embodied in the ‘non-audio visual elements’ of UCSC with the visual qualities of the adult sites with which you insist in comparing me. I am deeply insulted that you decry and deny my principal purpose.
You say accusingly ‘The content also features on its own Clips4Sale Studio, a standard outlet for pornography; the site advertises reviews with the line ‘what the top porn sites and blogs say about UC-SC’, and features links to adult sites such as Lady Sonia and The British Institution.’
Sigh. Clips4Sale offer a package that handles security and bandwidth, and importantly are not judgemental about the content of what they carry. There’s no ‘also’ about Clips4Sale, that’s the only way to access my ‘service’. You can’t download any videos directly from uc-sc-femdom.com so there appears to be some confusion.
Using Clips4Sale removes from UCSC the need to bother with fulfillment issues and concentrate on our admittedly edgy artistic expression. Just because UCSC uses that vehicle for delivery does not negate my alleged ODPS’ principal purpose being perhaps different from others on there. That is just guilt by association.
UCSC would like its efforts to be seen as widely as possible by those who appreciate its qualities. If only porn sites critique it, and only porn networks offer reciprocal advertising [no money changes hands], then that is what UCSC has to work with. Just because it is porn doesn’t mean that’s the principal purpose.
This made me laugh. A novel definition of competition. ‘ATVOD therefore does not accept that a service cannot be in competition with broadcast television based simply on the limited number of people who have viewed it’. I’m pretty sure the Competition Commission and or OFT would disagree, and have probably published yardsticks.
So how many people would you feel takes a ‘service’ [as Atvod define it] out of scope? Zero, by the sounds of it. I doubt you’ve even considered the point, it didn’t suit your book. Let’s face the truth. You would consider ‘a relatively small audience may nevertheless be considered to constitute a not insignificant proportion of the general public’ because otherwise literally thousands of sites will be outwith your regulation. And fees.
I don’t think the AMVS was intended to regulate sites like UCSC, and from their defensive references to legal challenges, both Ofcom and DCMS are well aware you are pushing your luck.
I’m well aware of Ofcom’s 10 Step process at http://is.gd/urDboV but since you apparently haven’t applied these tests and obviously won’t take a blind bit of notice anyway, and Ofcom will replicate the evaluation, I can’t be arsed to itemise them here. Whilst flattered to be regarded as a significant competitor to tv, it is obvious to any except blinkered bigots that I’m not, within an ordinary person’s understanding of the meaning of that phrase.
Turning to your Rule 11 PV, I was horrified to hear that under 18’s can subscribe for my videos. The financial sector really are the pits. Is there no shame, no end to their deceitful practices?
I chose that card processor precisely because they claimed to service adult sites, which I assumed met good practice guidelines (in addition to the adult content warnings throughout the site) and for which they take a percentage of each transaction – sadly very few, my art appeals to only a very limited though discerning audience.
How can a credit card processing company, whose business is with adult websites like mine, NOT have a system in place to stop under 18’s from buying adult content? Something during the card processing that verifies age. I am ASTOUNDED that they have neglected that. And as a result Atvod forces me to decline perfectly legal people because they only have debit cards.
They even vetted my site and, I understand, Visa also did, and they requested changes – which I made – before agreeing to offer me facilities.
Having said that, bear in mind proportionality. In real life a minor can obtain a sex shop product, or alcohol, or cigarettes, by asking an older friend to get it for them. Not ideal, but not a complete disaster either. Only in real life the not-credit-worthy aren’t excluded as collateral damage as well.
You were slightly misleading in saying in your pv ‘despite the service providers [sic] claims that the service only accepted credit card payments’ because that was not my claim but that of the card processor.
I even included evidence of this in my July email, an attachment of a screengrab of their page on their site – not mine, note – to which buyers (and this must have included you yourself, as it was your name that was provided to me by the card processor) are taken when they wish to become a member and purchase one of my performance art productions, and where it clearly and unambiguously emphasises that one should enter a credit card number. Evidence your pv omitted to mention.
And now it turns out that not content with bringing this country, indeed the global economy, to it’s knees, these lying financial bastards have placed moi in jeopardy under your Rule 11 sanctions threat. I am disgusted.
I am currently remonstrating with the card processor and, you will be gratified to learn, demanding action, in the expectation that they won’t want to forego the lucrative adult market. Unless they regard Atvod as a busted flush.
Indeed it has not escaped my notice that you yourself are experiencing difficulties with card processors [see http://is.gd/sUie9s] though I am advised the legal basis for your extra territorial demands, never mind your claims of illegality, are somewhat tenuous. I wish you luck in this endeavour. You will need it.
You said ‘the Service was the subject of a complaint submitted to ATVOD’ which sounds like some affronted Mrs Whitehouse character, but omitted to mention the minute of your board meeting that notes all 80 odd complaints against adult sites, made by one person, could be from a competitor, which casts matters in a rather different light. I’m sure you didn’t mean to mislead Ofcom or the public.
I am indignant that in claiming ‘the video ‘Deep probe urethral emasculation’ portrayed deep penetration of the male’s penis. This material goes beyond that which is likely to be classified by the BBFC at any category including R18’ you didn’t even acknowledge that in my July email I had put you on notice about a high court case covering precisely this topic, where the jury disagreed with the opinion of those in authority who brought this disgraceful case.
You were touchingly naive when observing ‘the video ‘Fight Cell: Anal Hook 01’ portrayed a ‘victim’ who is bound, handcuffed with a hood over his face, with another female sitting nearby holding a gun, which was occasionally waved in his direction, whilst the restrained ‘victim’ is being tortured. The victim appeared unable to free himself or indicate withdrawal of consent. Being handcuffed, and bound with a rope that’s attached to a ceiling, it is not clear if he is gagged but it is not clear if he is free to speak either. This material goes beyond that which is likely to be classified by the BBFC at any category including R18’.
This man is a wrestler, and was wearing a gum protector, so that moi – 5’5 in stockinged feet – didn’t hurt him when using him as a punch bag. Anyone looking for this kind of material would understand the genre – and the joke – and realise this is not realistic. Would you like me to bring him down to your offices in Windsor to check for yourself that he is happy and unharmed? I’m sure he would be delighted to help you in your classification.
So, formally, I take exception to your classifying both these as material that ‘might seriously impair’.
Talking of formally, since I am dealing with a representative of the capitalist patriarchy I suppose I need to switch into legal gobbledygook. Do pay attention, you will need to concentrate. This stuff hurts.
I disagree with the preliminary view that you expressed but whilst we are in the process of resolving the issue I wish to make it clear that the ability to join UCSC (which is done by way of a ‘button’ on the site) has been disabled (wef receipt of your email late afternoon on Fri 6th Sep) whilst this matter is ongoing. I wish to further emphasise that when the current 3rd party was put in place to accept payments on behalf of UCSC the 3rd party did vet the site which led UCSC to believe that only people over the age of 18 could access the material which needed to be paid for in order to be viewed. You will notice that the 3rd party on UCSC requests a credit card number which led UCSC (wrongly) to believe that only credit cards would be accepted. I would ask you to take these factors into account if you make a determination that there has been a breach.
I wish to begin by stating that I hope as a matter of law you would accept that Part 4A of the Communications Act 2003 should be interpreted consistently with the Audiovisual Directive 2010/13/EU and in such a way that it does not go beyond the requirements of the Directive as per C-106/89 Marleasing  ECR I-4153, whatever the hell that is.
Therefore, on the presumption that you consider the abovementioned to be a correct statement of the law I wish to make the following submissions as to why I state that I consider your preliminary view to be incorrect on the basis that UCSC services fall outside the Audiovisual Directive 2010/13/EU in that;
1. Article 1(1)(b) defines ‘programme’ as ‘a set of moving images with or without sound constituting an individual item within a schedule or a catalogue established by a media service provider and the form and content of which are comparable to the form and content of television broadcasting. Examples of programmes include feature-length films, sports events, situation comedies, documentaries, children’s programmes and original drama’. I would respectfully submit that it is clear to most that the relatively short clips available on the UCSC site differ from the examples above in both terms of their length and their narrative content, notwithstanding previously expressed opinions by both Atvod and Ofcom.
2. Recital 21 which provides ‘For the purposes of this Directive, the definition of an audiovisual media service should cover only audiovisual media services, whether television broadcasting or on- demand, which are mass media, that is, which are intended for reception by, and which could have a clear impact on, a significant proportion of the general public. Its scope should be limited to services as defined by the Treaty on the Functioning of the European Union and therefore should cover any form of economic activity, including that of public service enterprises, but should not cover activities which are primarily non- economic and which are 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 within communities of interest’. I submit that it is clear that UCSC services are intended for reception by a small and relatively specialist clientele and therefore as a result cannot be said to have a clear impact on a significant proportion of the general public. As stated previously UCSC cannot be said to be in competition with television broadcasting.
3. Recital (24) which provides ‘It is characteristic of on-demand audiovisual media services that they are ‘television-like’, i.e. that they compete for the same audience as television broadcasts, and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive. In the light of this and in order to prevent disparities as regards free movement and competition, the concept of ‘programme’ should be interpreted in a dynamic way taking into account developments in television broadcasting.’ The videos contained on UCSC do not compete for the same audiences as television broadcasts and therefore for these reasons they are not television-like. In addition, it seems somewhat disingenuous to state that the nature and means of access to the service are such that the user would expect regulatory protection when actually a user of a small specialist site like UCSC is likely to reasonably expect the opposite in that they would expect that no such regulatory protection of the type contained within the scope of the Directive would exist. I therefore submit that UCSC is not an ODPS on the abovementioned basis.
In addition if I am wrong in respect of the abovementioned I would further submit that the current measure you seek to impose on providers such as UCSC namely a requirement to have in place a 3rd party which in terms of debit card payments need to be verified is unlawful.
I have no doubt that the reason why you believe you can lawfully impose such measures is linked with the fact that Article 12 of the Directive, which deals with the protection of minors in the context of on-demand services provides states as follows:
‘Member States shall take appropriate measures to ensure that on-demand audiovisual media services provided by media service providers under their jurisdiction which might seriously impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see such on-demand audiovisual media services.’
This is implemented in section 368E(2) of the 2003 Act, which provides as follows:
‘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’
You will be aware however that recital 58 which states that ‘on demand audiovisual media services are different from television broadcast with regard to the choice and control the user can exercise and with regard to the impact they have on society. This justifies imposing lighter regulation on on-demand audiovisual media services which should only comply with the basic rules provided for in this Directive’. It also acknowledges that at recital 60 that ‘measures taken to protect the physical, mental and moral development of minors and human dignity should be carefully balanced with the fundamental right to freedom of expression as laid down in the chart on fundamental rights of the European Union (article 10)’.
In my submission your current precautionary approach is unlawful in relation to R18 material. The reason for this is that whilst the requirement of seriousness has been correctly transposed by the Directive into the Act you are misapplying the statutory test for intervention in that you appear to be applying the statutory test in such a way that the word ‘seriously’ has been made redundant.
The reason for this is evident in the DCMS report to Ofcom dated the 4th August 2011 entitled ‘sexually explicity material and video on-demand services’ whereupon at paragraph 2.5 it states that ‘there is a strong argument that the key test in relation to any particular item will in practice be whether there can be confidence that such material will not harm minors, rather than whether there can be confidence that it would’. This is the approach which ATVOD takes. However this in itself appears to be inverting the test. Whilst at first blush this seems a reasonable application of the test in that the legislation refers to the word ‘might’ the difficulty is that there must be some evidence that a minor’s development could be seriously impaired. If this were not the case then surely the word ‘seriously’ would have been removed so that both the legislation and the rules would read ‘a requirement to ensure that children will not normally see or hear material which might impair their development’. In my submission the word ‘seriously’ has to have some meaning. I now refer you to paragraph 3.23 of the Report which states over pages 15 to 16 the following:
(1) ‘Might R18 material seriously impair the development of minors? ‘From the research reviewed in this report the answer would be no’.
(2) ‘Is R18 material likely to impair the development of minors?’
Since there is no conclusive evidence this is a hard question to answer. There might be an effect on the moral development of minors.
Therefore, it would appear that Report itself accepts that whilst there is some evidence that the morals of an under 18 are likely to be impaired there is no evidence that this impairment is serious and therefore does not appear to meet the legislative criterion.
This is further supported by page 22 of the report in relation to the European study which was conducted whereupon at 4.12 it is stated that ‘most countries consider that sexually explicit material broadly equivalent to R18 material does not seriously impair minors. Furthermore at paragraph 4.23 it was stated ‘no country found evidence that sexually explicit material harms minors and none of the respondents had carried out independent research on what material might seriously impair or cause a lesser degree of harm to their development.’
Finally, even if it were to be accepted that you were applying the statutory test correctly, which it is not, the current measures you seek to impose in respect of restricting the manner in which 3rd parties process debit card payments which is economically harmful to USCS is unlawful as it is disproportionate. The requirement of Article 12 of the Directive is that material that might seriously affect the development of minors should not ‘normally’ be available to minors. Bearing in mind that this is a restriction on (i) the ability to provide services enshrined in Article 56 TFEU and (ii) the fundamental right to freedom of expression enshrined in Article 10 ECHR, it must be proportionate, meaning that it must be (i) appropriate to achieve the goal pursued (protection of minors), (ii) necessary to achieve that goal and (iii) no more restrictive than necessary to achieve that goal. The onerous requirements sought to be imposed by ATVOD go beyond what is necessary to ensure that UCSC’s services are not ‘normally’ accessed by minors.
That is all.
I look forward to being provided details of the comparable tv channel promptly.
Yours in absolute sincerity,
The UCSC Project
Defeating Patriarchy at their own game since 2010