The new Sexual Offences Act is due to come into effect in May 2004. One important change involves the definition of a 'child' under the terms of the Protection of Children Act 1978. Currently the Protection of Children Act defines a 'child' as a person under 16 years of age and makes illegal the manufacture, possession and distribution of indecent photographs of children under 16. Section 45 (2) of the new Sexual Offences Act will raise the age of a 'child' for the purposes of this Act to 18. The effect of this will be retrospective, applying to all such images, regardless of when they first came into circulation.
The Board has always been careful to ensure that no classified film or video contains any potentially indecent image of persons under 16. Where relevant we have always sought proof that no performer engaged in a scene that might be considered legally indecent was under 16 at the time of filming. This means, however, that the BBFC has classified scenes that involved 16 and 17 year actors in potentially indecent situations. The new Act will now make such sequences illegal.
From a practical point of view it is impossible for the BBFC to identify every film, video or DVD that has ever been published that involves persons of 16 or 17 years in what might be regarded as an indecent photograph. Distributors should therefore be aware of this change to the law so that they can consider whether any action is required on their part. Our legal advice indicates that the fact that a film was classified by the BBFC under the former definition of child will not protect it from prosecution under the new definition. Naturally the BBFC will apply the new definition of a child to any fresh submissions with immediate effect.
Distributors will wish to rely upon their own legal advice. The BBFC's lawyers, however, have advised that there is no legal definition of indecency and whether a particular image is indecent can only be established by a jury or magistrate. An important definition in case law has been that an image is indecent if it “offends the ordinary modesty of the average man” [R v Stanley (1965)]. In order for an image to be indecent, there may also be some kind of sexual connotation. Simple nudity may be unlikely to be considered indecent. It is worth remembering that, unlike the Obscene Publications Act, the Protection of Children Act does not allow for defences of context or social and cultural merit. The Act therefore applies equally to pornography, documentaries and narrative features.
It is important to emphasise that the legal responsibility for ensuring that the images accord with the new requirements (including the responsibility for taking appropriate legal advice) lies with the publisher i.e. in this case the distributors of films, videos and DVDs.