I spent all of May anticipating a letter from ATVOD, and by the time I went on holiday at the end of the month, none had arrived. I met with Ms Tytania (who successfully appealed to Ofcom regarding ATVOD's Determination against her site the Urban Chick Supremacy Cell in 2014) for coffee, and she gave me some more info on the appeal process. For instance, I learned that while her appeal was underway, she took her members section offline, but left her site and blog up. She also suggested that it might be months until ATVOD issued me with their Preliminary View (that is, their first report on the site and whether it is in breach of their guidelines) - they are pursuing lots of cases at the moment and in the case of UCSC, they sometimes kept her waiting a long time for a reply.
I came back from holiday feeling refreshed, and got stuck back into work on Dreams of Spanking with enthusiasm. The detachment and depression I'd felt after I first learned of ATVOD's investigation felt like a thing of the past. For a couple of weeks, I took pleasure in editing videos and promotiing the site.
Then on Monday I received a letter from ATVOD enclosing their Preliminary View on Dreams of Spanking.
The PV took the form of a summary PDF signed by CEO Peter Johnson, and three documents - the first one (7 pages) declaring that I was in breach of Rules 1 and 4 for failing to notify them that I was running a Video on Demand service and for failing to volunteer to pay their annual registration fee, the second (8 pages) a description of the ways in which the site is in breach of Rule 11 for making 'restricted material' available to view without age verification e.g. having to enter credit card details, and the third document (5 pages) declared that the site was in breach of rule 14 for including 'prohibited material' - that is, content which is too 'extreme' to be classified as R18 according to the British Board of Film Classification.;
At first read it makes for effective psychodrama. The first document goes into excruciating, pre-emptively defensive detail about why exactly ATVOD consider Dreams of Spanking to be a Video on Demand service by their definition, with particular emphasis on the reasons they feel the films are "TV-like". I admit I briefly felt intimidated - particularly by the all-caps, all-bold REAL NAME YOU ARE IN BREACH OF RULE BLAH BLAH statement at the end of each document - but then it struck me as trying too hard, ridiculous. For fully effective scare tactics they might as well has gone the whole hog and had it red and dripping blood, too. No government agency which was secure in its authority would resort to such puffed-up posturing.
The level of detail they've gone into is surreal. As I paged through the documents, reading chapter and verse on all the ways they consider my work to be a) under their authority and b) unacceptable, mixed feelings arose. On one level it was kind of gratifying to have my indulgent little porn site taken so seriously by a commercial regulator - I mean, I think they're coming at it all wrong, but at least they've done some research. On another, more irrational, level it felt somewhat violating. I guess when you publish niche fetish material online there's an implicit assumption that only likeminded folks will pay close attention. I know rationally that there's no guarantee of that, and if you'd asked me I'd have said it was a silly expectation to have. But still, I can't deny it felt uncomfortable to have my personal porn project dissected by hostile outsiders.
But I also couldn't help seeing the funny side. I mean, the sheer time and effort it must have taken to compile ... surely the no doubt skilled professionals who wrote these documents could be spending their time in a more productive way than poking their nose into other people's erotic lives online? And then there was how seriously they were taking it all - and the cost...
These people are paid (no doubt handsome) salaries to watch niche porn and methodically tear it apart - all funded by the fees they extract from other niche pornographers. As Ben Yates wrote for XBiz in March, "If they were the mafia, their fees would be termed protection money and their business model would be extortion."
So what do ATVOD have to say about Dreams of Spanking?
How's that for a cover quote? This paragraph tickled me so much that I've temporarily made it our Twitter cover picture - perhaps I should add ATVOD's review to the ones on our splash page.
Also, as Hywel pointed out,
@DreamofSpanking Go us. "Do not have the appearance of having been with consumer grade camera". ATVOD technically clueless as well, then.— Restrained Elegance (@RElegance) June 8, 2015
The cameras I use to shoot video for Dreams of Spanking are this one and this one. I bought the HF200 from Amazon for about £500 back in 2010, and the HF306 for £200 a couple of years later. Hardly commercial grade, and you can tell: the image is often grainy, with no manual focus or shallow depth of field, and responds badly to low lighting. I colour grade the best I can in Premiere, but when it comes to film-making I'm self-taught and operating on a miniscule budget. Are ATVOD really so clueless that they can't tell the difference betweeh this and commercial broadcast media?
As Nimue Allen pointed out, it's particularly weird of them to cite behind the scenes material as an example of something that makes our videos "TV-like", when you don't get behind the scenes out-takes and interviews on TV - it's a DVD extras thing.
And then there's this:
Don't even get me started on the problems inherent with using appropriate credits, behind the scenes materials showing consent, and "high production values" as evidence that our videos should be censored. What's that meant to do - encourage people to attempt to avoid regulation by making terrible porn?
@DreamofSpanking "Why pick Dreams, ATVOD?" "it was the credits, m'lud. Only TV programmes EVER credit their performers" =\— Girl on the Net (@girlonthenet) June 8, 2015
I've heard it argued that the AVMS 2014 (the Statutory Instrument that came into effect last December granting ATVOD these new powers) is aimed at bringing down the free tube sites, but based on these criteria, which exclude most of the offerings on tube sites - they usually don't include narrative, credits or out-of-character expressions of consent - I really don't understand how.
As if this ridiculousness wasn't enough, the document contained a number of typing errors.
Could do better, ATVOD. See me after class.
But the most ludicrous of their claims is in the document on Rule 14, in which they cite two scenes as examples of "prohibited material". One is "Slight Damage to the Rear End", which isn't surprising as the only reason that scene (which depicts caning hard enough to draw blood) is still on the site is that CCBill haven't noticed it yet. But the other is "Ariel's Sponsored Caning", the first of our free protest videos as part of our fundraiser for Backlash. The irony of them picking a video which was explicitly created to challenge the AVMS guidelines and ATVOD's authority is incredible. I can only hope that they paid close attention to the interviews at the start - it's funny to imagine them watching them and fuming.
"Lasting physical harm" - really? Let's revisit the scene in question. This is probably the clearest image of Ariel's welts by the end of the caning:
Now I don't know about you, but to me those look like fairly moderate cane welts. A little raising of the skin, but for the most part they're pink rather than dark red or purple, with only one darker line on the crease. Even compared with the rest of the sponsored caning videos - which are all free to view - these stripes are relatively mild, which makes it doubly weird that they picked out this one.
Here's what Ariel had to say about ATVOD's interpretation of her caning as "lasting physical harm":
@DreamofSpanking Jeez. They lasted for 1 week. Almost exactly. My bottom is *back to normal* Because we aren't insane. WTF.— Ariel Anderssen (@ArielAnderssen) June 8, 2015
Are marks that heal up within a few days really "lasting harm"? It's ludicrous that a group of people who know almost nothing about BDSM should attempt this sort of external, ill-informed assessment of which acts "might cause lasting harm". If the level of damage is the deciding factor, how on earth can they tell from the images shot on the day how long the marks took to heal? Everyone has different rates of healing, and I've had marks like this which disappeared overnight. Is that still "lasting harm"?
Then there's the arrogance of ATVOD deciding how "harmed" a performer was, or might have been, without paying any attention to the testimony of that performer. (In this instance, Ariel's smiles and hugs at the end of the film clearly show that neither of us was harmed during the filming of this video.) But why make assumptions? Since they were apparently so dedicated to their "research", how hard would it have been for ATVOD to contact Ariel and ask her themselves? Her email address is right there on her user profile.
That's the thing about feminist porn: the performers are real people, with online presence and social media profiles, and you can follow the links and find out for yourself how they felt about a given scene and how long it took them to recover. But it seems ATVOD would rather stand in judgement of porn performers than actually talk to them.
Re-reading it now, I'm actually confused about how to read that wording - This constitutes material which “involves the infliction of pain or acts which may cause lasting physical harm, whether real or (in a sexual context) simulated”. The infliction of pain or acts which may cause lasting physical harm? Is it possible that they aren't citing Ariel's caned bottom as evidence of lasting physical harm after all, but simply as evidence of "the infliction of pain"? But that makes no sense, because the guidelines allegedly allow for "moderate" pain play which leaves transient marks such as reddening of the skin. So if infliction of pain is permissible in some contexts, that by itself can't be grounds for censorship. In this instance therefore I think ATVOD must be referring to "acts which may cause lasting physical harm", and not just "the infliction of pain".
I love this idea. ATVOD have given me 10 working days to make legal representations to defend myself - perhaps we should append a lengthy collection of "before" and "after" bottom photos to prove that none of the material on Dreams of Spanking caused lasting physical harm to the performers.
The other thing that's particularly messed up about legislating BDSM material based on the perceived severity of the resulting marks is that marking is so very variable. Any player will tell you that some people mark more than others, and how much each of us marks depends on how much we've been playing lately, how well warmed up we are in a given scene, how well we take care of our skin with soothing lotion, moisturiser, aloe vera etc, and myriad other factors. Is it really the case that (for instance) a 25 stroke caning delivered after a lengthy warm-up session with hand, leather paddle and strap, resulting in a rosy red glow but no visible welts, would be permissible, but the same caning (or even a lighter one) delivered straight from cold, would be prohibited? How does that make sense?
Not to mention the fact that banning heavy marking discriminates against less-experienced bottoms - which disproportionately targets amateur porn and studios working with new performers rather than those who only work with experienced bottoms.
@DreamofSpanking Frankly, I've had pimples on my bum that hung around longer than any DoS marks.
— Adele Haze (@AdeleHaze) June 8, 2015
Finally, there's the fact that these criteria are only applied to "pornographic works", created "primarily for the purposes of sexual arousal". But eroticism is in the eyes of the viewer. You only need to take one look at the Clips4Sale categories list to realise that things you always thought were perfectly mundane are, for some people, the height of sexual excitement. So who gets to decide what is "pornographic", and why are we allowed to publish video of acts that may cause lasting physical harm in some contexts, but not in others?
I've had worse marks from Medieval re-enactment, and that's 100% legal.— Restrained Elegance (@RElegance) June 8, 2015
Here are some examples of "lasting physical harm" I have had that lasted longer than Ariel's cane marks:
- A jellyfish sting from swimming in the sea
- Bruises on my hips from hula hooping
- A shaving cut on my ankle
- Scratches on my hands from when my cat Fatface indulges in some rough love
- A cut on my thumb from chopping vegetables
- RSI in my wrists from using a computer all the time
- A sprained ankle from doing parkour
All these these activities were undertaken deliberately and with full awareness of the risks involved. Should video of people swimming, doing parkour, hula hooping, or attacking their cats' fluffy bellies be illegal to distribute too?
The thing that really bites is that as a feminist porn producer I go out of my way to ensure the consent and wellbeing of the performers I work with. These guidelines make absolutely no provision for consent, for whether the acts are undertaken in a safe and responsible way, for the health and happiness of the performers, or for the production ethics, transparency and accountability of the service in question.
Under these guidelines, you can publish a four-boy, one-girl hardcore porn scene that includes double penetration and lots of gagging on cock, and you're absolutely fine provided it's shot with shoddy production values with no storyline, no performer interviews or behind the scenes, and no credits. But if you go out of your way to create something better, if you strive to be ethical and responsible, and if you dare to authentically express a kinky sexuality in a consensual, thoughtful and critical way - that's obviously "harmful", and they'll come after you and shut you down.