Friday, 15 August 2014

DOMINATRIX BEATS REGULATOR INTO SUBMISSION

Dominatrix Beats Regulator into Submission; Ofcom deliver judicious spanking to ATVOD

“Dear Mr Johnson, You've been rather a naughty boy, haven't you?”

State regulators are seldom challenged in such explicit terms.

Yet this is exactly how artist, dominatrix and provocateur Ms Itziar Bilbao Urrutia responded when the Authority for Television on Demand (ATVOD) had the temerity to suggest that her fetish-themed website and art project The Urban Chick Supremacy Cell (UC-SC) was in breach of their regulatory régime.

In successfully challenging ATVOD’s authority, Urritia has delivered a decisive blow for sexual liberties against the forces of repressive regulation and state sanctioned censorship.

The Urban Chick Supremacy Cell

The regulators were at a distinct disadvantage from the outset, since the UC-SC website defies classification artistically and sexually, let alone legally. A disclaimer on the site proclaims that is an “art project designed, produced and created by real life dominant women,” wherein “all violence and speech are part of a fictionalized dystopian Femdom fantasy”.

Ms Urrutia deploys her subversive wit to deftly deconstruct male fantasies of female domination with the revolutionary call to arms: “No Goddess! No Mistress! No Corsets!” Instead, this traditional iconography is replaced by a Baader-Meinhof inspired terrorist cell chic of bovver boots, balaclavas and brutal bob haircuts. A newspaper cut and paste ransom note typeface proclaims that the UC-SC have been: “Defeating Patriarchy at their own game since 2010”. Men are referred to as “banker wankers” and reeducated in feminist theory in the “Meat Dildo Abbatoir” by virtue of Valery Solanas’ SCUM Manifesto that “males are emotional cripples”.

Well, you were warned that the UC-SC defied classification.

It may be easier to let The Urban Chick Supremacy Cell website speak for itself. It can be accessed via an appropriate disclaimer here:


ATVOD

The infinitely duller ATVOD website claims that:

“ATVOD is the independent co-regulator for the editorial content of UK video on demand services that fall within the new statutory definition of On Demand Programme Services.
Its duties and powers derive from the Communications Act 2003, as amended by the Audiovisual Media Services Regulations 2009 and the Audiovisual Media Services Regulations 2010 which came into force on 19 December 2009 and 18 March 2010 respectively. The Act confers functions on the Office of Communications (Ofcom) for the regulation of On Demand Programme Services, and gives Ofcom power to delegate certain functions to an appropriate regulatory authority.
On 18 March 2010, Ofcom delegated certain of its functions and powers in relation to the regulation of On Demand Programme Services to ATVOD by means of a formal designation”.
Yawn.
In this context an "on-demand" video is one that a viewer can choose when they want to view, such as an iPlayer clip, rather than a scheduled television broadcast.
Nonetheless, ATVOD claim that they have the legal authority to act as the official regulator and censor for on-demand video content online; presuming that those videos were produced or editorial control remained in this country and such “programmes” are similar to those usually broadcast on television.
Thus it may seem surprising that a quango should want to pursue a one woman, cottage industry, niche fetish video producer; since broadcast television is sadly bereft of scheduled programmes featuring explicit strap-on pornography.
However, ATVOD benefit financially from on demand video services by charging a “regulatory fee” from those who choose to comply. Hence having gone after bigger adult industry players like Playboy TV, ATVOD seem to have been reduced to pursuing women who produce female domination pornography. A significant number of whom have closed their websites as a consequence.
Censor driven Moral Panic
Perhaps of greater concern is ATVOD’s view of itself as moral guardian, since, ATVOD’s Chief Executive Pete Johnson has been quoted as saying that:
“Asking visitors to a website to click an ‘I am 18’ button or enter a date of birth or use a debit card is not sufficient – if they are going to offer explicit sex material they must know that their customers are 18, just as they would in the ‘offline’ world.”
ATVOD believes that websites should require the user to supply valid credit card details or other personal information that can be cross-referenced with the electoral roll or another ID database, thus establishing the user's identity. 
Failure by commercial websites to obtain proof that the user is over 18 before allowing access to adult content is considered by ATVOD to be a breach of the Obscene Publications Act 1959.  
Johnson also confirmed that in the case of non-pay sites containing user-uploaded material it is the uploader that is legally responsible rather than the service provider.
In reality this approach delegates responsibility for interpreting parliamentary legislation, namely the Obscene Publications Act, onto financial institutions such as banks and credit card processing companies who come with their own moral and risk aversion to sexual services; rather than organs of the state such as the Crown Prosecution Service who are responsible for drafting the OPA Guidelines.
Hence this undesirable situation has been criticised by, amongst others, The Open Rights Group who called for parliamentary scrutiny of ATVOD’s private discussions with financial institutions, last year. To adopt Ms Urrutia’s turn of phrase, this means “banker wankers” can exert financial censorship over consensual adult sexual expression.
Legal Backlash against ATVOD

Against this backdrop of regulatory and financial censorship, Ms Urrutia received what she thought seemed an unnecessarily threatening demand from ATVOD and hence immediately contacted sexual liberties campaign Backlash, for whom I provide pro-bono legal advice.

Backlash agreed to fund a barrister specialising in telecommunications regulatory challenges, Ligia Osepciu at Monckton Chambers, to provide provisional advice.  Along with my colleague Daniel Godden, a partner at Hodge Jones and Allen solicitors; and in collaboration with Ms Urrutia; we were able to draft ripostes to ATVOD’s correspondence.

Unsurprisingly ATVOD returned a determination against the UC-SC, so Ligia drafted the following request to Ofcom to appeal ATVOD’s decision:

REQUEST FOR APPEAL OF ATVOD’S DETERMINATION THAT THE PROVIDER OF THE ON DEMAND PROGRAMME SERVICE “THE URBAN CHICK SUPREMACY CELL” WAS IN BREACH OF ATVOD’S RULES 1 & 4 AND THEREBY CONTRAVENED SECTION 368BA AND 368D(3)(ZA) OF THE COMMUNICATIONS ACT 2003

Although we were fully prepared to judicially review Ofcom’s decision, our appeal was successful. However, frustratingly, we were embargoed from reporting or discussing that outcome. Until today. Now that Ofcom have published the decision on their website, we are finally free to disseminate this information in public.


Taking the Piss Out of the Regulator

I feel the final the final words should be Ms Urrutia’s (who is about become PhD candidate at Birmingham University, partly due to her UC-SC project).

Hence what follows is her hilarious deconstruction of ATVOD’s attempt to critique her art project. You are welcome to skip to the end, but you will miss her spectacularly taking the piss out of the censor’s attempts to understand Duchamp’s Urinal.

“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 experience, because 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.


Tuesday, 15 October 2013

WORDS OF CAUTION

Should activities that are illegal to perform in real-life, such as the distribution of Class A drugs, be illegal to write about in a fictional context where no actual harm is caused?

“WHSmith's vile trade in online rape porn,” proclaimed the Mail on Sunday in an expose of the retailer’s website, which appears to have accidentally allowed adult content ebooks to have come up in searches for children’s material.

Whilst that website clearly signalled that the ebooks in question were fictional material of an adult nature, the content of those ebooks is alleged to include themes of rape, incest and bestiality.

Clearly this raises complex issues regarding the depiction of sexual fantasies, the written word and evidence of actual harm. Yet what is the precise law in this delicate area?

The Mail article states that “anyone breaching the Obscene Publications Act 1969 faces up to three years in prison”. This is inaccurate. The Obscene Publications Act 1959 might apply. The maximum sentence available under the OPA is now five years, as amended by section 71 of the Criminal Justice and Immigration Act 2008.

The article continues by stating that: “the Ministry of Justice said the retailers would be liable for prosecution if a judge deemed that the ebooks breached the Obscene Publications Act”. This is also inaccurate.

A prosecutor at the Crown Prosecution Service must apply two tests. Firstly they “must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction”.

Secondly, they “must go on to consider whether a prosecution is required in the public interest”. Only then might a defendant be charged with an offence under the OPA and therefore appear before a Judge.

Perhaps most surprisingly though, the article goes on to quote our National Crime Agency saying: “there is a need to think about criminalising the paedophilic written word”.

Yet such a law already exists. The Court of Appeal’s decision in the case of R v GS (2012) extends criminal liability under the OPA 1959 to written text, irrespective of whether they are clearly “fantasy and not a reference to real events”.

Hence written works of fantasy may attract criminal liability if they satisfy the CPS’ Guidelines on the OPA. The Guidelines state that: “the categories of material most commonly prosecuted [include] sexual act with an animal [and] realistic portrayals of rape”.

However, it is essential to note that it is unclear from the Mail’s article whether the writers have actually read any of the ebooks in question. I certainly have not.

Therefore any further analysis of who might be prosecuted under the OPA would be pure speculation.

Nonetheless, the Mail writers acknowledge that the “rape” fantasy ebooks “use a cynical caveat claiming that the sex is between consenting adults”. Hence, if the characters consent, how can it possibly be “rape” let alone a “realistic portrayal of rape”?

Likewise, the Mail article notes that the “incest” fantasy ebooks include sexual acts which “take place between non-blood relations,” so how could this amount to incest?

Furthermore, it is important to remember that actual rape, incest and bestiality are criminal offences under the Sexual Offences Act 2003.

Yet, confusingly, the CPS’ Guidelines on the OPA also include depictions of “bondage” and “fisting” which are activities that are legal to perform in real life.

Hence this raises complicated questions regarding the role of sexual fantasy and the
nature of harm. With written text fantasies, no individual is harmed. Certainly no words are harmed.

However, should activities that are illegal to perform in real-life, such as the distribution of Class A drugs, also be illegal to write about in a fictional context?

Likewise can we accept that sexual fantasy may explore the darker recesses of human nature, without resulting in any actual harm in real-life?

For example, whilst apparently searching for a link between “pornographic” material and actual sexual offending, The 2005 Home Office Consultation “On the possession of extreme pornographic material” stated:

“As to evidence of harm, conducting research in this area is complex. We do not yet have sufficient evidence from which to draw any definite conclusions as to the likely long term impact of this kind of material on individuals generally”

By comparison The Ministry of Justice criminal policy unit recently stated with reference to simulated images of “rape” that:

"We have no evidence to show that the creation of staged rape images involves any harm to the participants or causes harm to society at large”.
Certainly the current cycle of concern about the nature and role of pornography in society could be argued to have the characteristics of a moral panic.
There is a definite similarity to the 1980’s moral panic about so-called “video-nasties” which also had salacious titles like “Cannibal Holocaust” and “I Spit On Your Grave”.
Both panics feature relatively new technologies that allow access to potentially adult themed content in the home (ebooks now and video then), the ramifications of which are not fully comprehended at the time.  
Since these new technologies challenge the State’s ability to censor and control information, there is often a call in certain quarters to regulate, censor and prosecute.
We can see this trend in the current cycle with regards to David Cameron’s call to criminalise simulated “rape” pornography; and the Association of Television on Demand (ATVOD’s) attempt to control pornographic material on the internet.  
So have we returned to books as a form of prohibited content? Under this regime of censorship where do Procopius of Caesarea’s Secret History, De Sade’s 120 Days of Sodom or Nabokov’s Lolita stand? Let alone actual abuse memoirs, the works of Shakespeare or the Bible.

Thus the question arises as to who guards our moral guardians as, by raising awareness of this issue by publishing the information in the article, might the Mail itself might be at risk of prosecution for publication under the OPA as well?