The BBFC today published its response to the Home Office consultation paper on the regulation of ‘R18’ videos. The Board shares the Home Office’s concern about the protection of children from exposure to pornography.
The consultation document follows the Board’s failure to win a judicial review of the decision by the Video Appeals Committee involving seven videos, which resulted in new more relaxed Guidelines for ‘R18’ videos being published in July. Despite this relaxation the UK still probably has the strictest Guidelines of any European or Western nation. The Board’s response to the proposals in the consultation paper is as follows:
The Board does not consider that changing “who is likely to view” to “who may view” will have a useful effect. The Board believes it would be more helpful to seek to to establish likelihood in a way that places it beyond debate.
The Board suggests borrowing the wording of the original 1984 Act “...as to the suitability of a video work, have special regard to the likelihood of it being viewed in the home and (among other relevant factors) to any harm that may be caused to [ ] viewers...” The omission of “potential” would also remove the troublesome definition in section 4A (2) of the Act. The phrase “including children and young persons” could be inserted after “viewers” if needed.
The Board agrees with paragraph 3.3 of the consultation paper that - even if legislation were changed - the more fundamental difficulty of providing firm evidence of harm would persist. In the run up to the judicial review the Board sought the advice of its own Advisory Panel on Children’s Viewing, which is made up of specialists working with children or on children’s issues. Following the viewing of one of the videos in the case the Panel concluded that “it was not likely to be psychologically harmful to those into whose hands it might fall inadvertently” and that “the Board was not justified in taking a censorious stance on the off-chance of a child seeing it”.
In addition the Board commissioned a research study, for publication next month, to address the question “Are ‘experts’ in a position to say that children are harmed if they view ‘R18’ videos?”. Although many of the experts thought that all pornography had potential to harm children, the greatest concern was about material more hard-core than ‘R18’ videos, containing material which would not be allowed under the Guidelines. There was no consensus about the extent of harm and they generally took the view that, provided there were no other serious abuse factors involved, children would recover fairly quickly from any symptoms of harm. There was also no evidence, of which they were aware, that in other countries where pornography was more accessible children had more problems as a result.
The Board assumes that the law enforcement agencies will comment on whether offences which are likely to take place within the privacy of the home are enforceable. The Board is also concerned that this option would not create an offence of showing unclassified material to a child. The Board’s expert advice is that in the cases where children have been damaged as a result of watching pornography, it is most likely to have been within a pre-existing child harm context. In these circumstances the exisiting child protection legislation would apply. The consultation paper’s reference to pornography being used by paedophiles to ‘groom’ children for paedophile activity is supported by the Board’s expert evidence, but it should also be borne in mind that paedophiles use a range of other materials including legitimate sex education videos and books. The ‘R18’ Guidelines specifically prohibit any material involving children in a sexual context.
The Board welcomes the proposal that penalties for supplying ‘R18’ material by mail order should be increased.
The Board believes that there is no proper basis for any public perception that the VAC has been other than conscientious and responsible in its judgements and is unable to support the criticism that the VAC, particularly on this occasion, did not ‘reflect the diversity required’.
In order to retain the valued independence of the VAC the Board recommends that any appointment process be kept separate from government and Whitehall and commends to the government’s consideration the arrangements for appointments to an Appeals Body which have been proposed by ICSTIS (the public body which regulates premium rate telephone services).
It is theconsidered view of the BBFC that the difficulties which have prompted this consultation exercise have arisen because the VAC is able to make a substantive judgement about the content of videos and to say that the Board’s own judgement is wrong. The Board’s Guidelines are now based on research and consultation.
The Board, therefore, recommends that the VAC’s jurisdiction should now be confined to deciding whether the Board, as the Designated Authority under the Video Recordings Act, has been fair, consistent and legally correct in the application of its published policy and Guidelines.
A final option that the consultation paper has not considered is a possible statutory requirement that ‘R18’ videos should be clearly and prominently labelled with an appropriate warning, referring to the dangers of exposing children to the contents of the video. The Board recommends that ‘R18’ suppliers should be required to apply a permanent label to that effect both to the video cassette itself, and to the sleeve within which it is displayed in the shop.