Far More Dangerous…

In our second piece on the current legislation concerning pornography, Jane Fae looks back on the UK's long history of censorship, from Lord Campbell's 1857 Obscene Publications Act to Peter Johnson's ATVOD of today. It's an alarming picture.

Despite much public froth to the contrary, the Government has NOT just banned squirting, face-sitting or even trampling from video on demand.  They have not even banned BDSM or pain play.

Do not be lulled into a false sense of security. What they have done is far more dangerous: its implementation, courtesy of the Crown Prosecution Service, the British Board of Film Classification and ATVOD is a poisonous mix of arrogance, hypocrisy and dishonesty.

For, some 50 years after the state vacated the field of directly policing public morality, abolishing the office of Lord Chamberlain, we are now well on our way back to the re-establishment of  the office of public censor.  Though unlike the Censor in ancient Rome, our very modern  office of public morality is and is likely to remain wholly unelected and unaccountable to the wider public.

To understand what has been done, it is necessary to understand how British censorship has worked, and how it has shifted over the past 30 years or so. Historically, the state has disliked direcct censorship. The original Obscene Publications Act (1857) set out a rule of thumb for publications that might be considered obscene – but left it to juries to determine which. That approach was continued in the revised 1959 OPA and even in the more recent extreme porn law (2008).

In 1909, safety legislation gave to local councils the right to license cinema premises. Fearful that these powers would be used to censor, the film industry created the British Board of Film Censorship (BBFC) to provide consistent guidance. The BBFC had no legal standing: local councils might always over-rule BBFC decisions. Over the years, however, the BBFC grew in standing and influence, and mostly, what it suggested, local councils agreed.

It was not until 1985 and the Video Recordings Act, that the BBFC received any formal recognition. The government decided that the sale and distribution of commercial videos should be permitted, provided that they underwent classification by a designated body (the BBFC).

This was a significant shift in the legal approach: previously, if a film were shown without adequate consideration for the audience, those involved in the screening might be prosecuted courtesy of the Obscene Publications Act. The outcome would depend on whether a jury decided that the material in question was obscene. Now, however, the test was no longer obscenity, per se, but whether the BBFC – which changed its name to British Board of Film Classification – had classified it.

Here beginneth the long march towards the BBFC as public censor. It also raised large questions as to how the BBFC should censor. The obvious answer, in 1985, appeared to be to use the OPA as yardstick: with several hundred prosecutions a year, mostly successful, there was a lot of information to be had as to what the British public, through juries, counted as obscene.

Obscene would definitely not be classified.  “Adult” films would receive an 18 certificate. And material that lay between “Adult” and obscene – the notional “hardcore porn” – would receive an R18 and allowed for sale only in adult shops.

Fast forward to 2014, however, and the picture is somewhat different. 2013/14 saw just 33 prosecutions for obscenity – not all of them successful. No matter: by now there were laws on extreme porn, which made unlawful material that displayed severe harm or potentially fatal activity in a sexual context. There were Crown Prosecution guidelines on what the CPS deemed to be obscene.

There was, too, an interesting ruling in 2008, when Justice Mitting, disputing a BBFC verdict in respect of video game Manhunt 2, ruled that the BBFC had a duty to look at the “potential harm and risk of harm”. Far be it for me, a humble scribbler, to take issue with a High Court Judge: but this ruling appears to have radically amended the law as written, from being mindful of “harm to potential viewers”, to “potential harm to viewers”.

At this point, the hypocrisy and dishonesty of those involved in the process ratchets up a notch. This is illustrated at one level by their approach to female ejaculation, which they claim “never to have seen”. (In which case, how do they know they have never seen it?).

Its not that they have anything against female ejaculation. Oh no. But every instance they have ever seen is, apparently, urination. Golden Showers! And presumably – they would know! – not some other form of fakery. Since CPS guidelines tell them showing this would breach the OPA, they won’t allow it.

Except, in one of the most high profile cases in recent years, the trial of Michael Peacock in early 2012, a jury very publically declined to find erotic urination obscene. No matter. The police, CPS and BBFC got together, reviewed the case and decided… that they were right and the jury was wrong. So urination remained on the verboten list.

At the same time, the BBFC has taken an increasingly tough line on “potentially harmful” material. Mostly where it involves any form of sex. To be sure, they point to cuts they have demanded in children’s films, such as Lilo and Stitch. However, it does not require a degree in statistics to observe that rather more people are killed each year by excessive automobile speed than the wearing of a gas mask in bed. Yet for some reason, it is the potential harm from the latter that exercises the BBFC rather more than that from James Bond and other men-in-fast-cars.

Still, all of the above is about film – and none of it about the internet. Where does ATVOD and the Audiovisual Media Services Regulations (AVMS) come into it?

Those familiar with UK censorship will be aware that regulation of the UK content of video on demand content has been subcontracted from Ofcom to ATVOD.

In its early days, there were complaints that ATVOD cost a great deal of money and did little.

When ATVOD did get going, its parent body Ofcom was not always on-side with its decisions.

Perhaps one should be careful what one wishes for. Under their Chief Executive, Peter Johnson, ATVOD has stepped up from reactive regulator, focussed on responding to public complaint, to a body that appears to be determinedly pursuing an agenda of its own.

Johnson’s first wheeze, attempting to apply a principle advocated by groups campaigning against online porn was to seek to co-opt financial services providers into refusing to take payment for video streamed from outside the UK on the grounds that it was obscene.

This approach was rejected in October 2013, when the payments industry proclaimed that it was “not appropriate” that it become the regulator of the open internet. It is likely they also understood the legal quagmire they risked if they blocked as obscene content that had never been tested for obscenity in a UK court.

One might equally ask whether it was appropriate for ATVOD to pursue an agenda focused primarily on regulating material originating abroad. Undoubtedly, Johnson believes this is an important thing to do. However, in other instances where UK law has extended its reach to block new categories of content or apply new blocks to existing categories, there has been parliamentary debate on the subject.

Not so in this instance, where the change to existing regulations was made by means of a parliamentary device known as a statutory instrument, amending the existing Communications Act 2003, signed by Culture Minister Ed Vaizey and subsequently deposited in the library of the House of Commons.

There has been no debate. No scrutiny. Nor is it clear what, if any, role ATVOD played in lobbying for this change.  Although it can be no coincidence that screening an unclassified film is a much easier offence to argue – and one that ATVOD might, finally, be able to get financial services to buy into.

Yet major change it is. For while it does not specifically outlaw the various practices that have been headlined in the newspapers this week, it does now require that paid-for Online services do not include any specially restricted material unless made available in a manner which “secures that persons under the age of 18 will not normally see or hear it”.

“Specially restricted”, in this context, means either work that has received an R18 certificate or which the service provider reasonably believes would receive an R18 certificate if put forward for classification. Although – and here’s the backstop – if the BBFC were suddenly invaded by wild-eyed libertarians, Ofcom can still over-rule its decision.

This is where that ban list does come in: for the BBFC and ATVOD have made it perfectly clear what they consider to be R18: basically, material that falls outside a narrow conservative heteronormative view  of sexuality. Killing and dismembering people, according to these august bodies, is not a matter likely to disturb the mental health or well-being of young people.

In arguing back against these measures, many are missing the point. The offense under these new amendments is NOT defined by what is presented on our screens – but by the simple failure to apply to an official state-backed body for permission to show that content.  The elephant in the room, the thing that few commentators have quite grasped, is the extent to which the state IS now in our bedrooms (and on our TV screens).

The BBFC may protest its continuing independence. But were this real, rather than rhetoric designed to cover the degree to which it is in the pockets of establishment bodies, it would pay for independent advice as to what material was likely to be obscene – not simply parrot the line handed down by bodies such as CPS and Police.

In debate on the Video Reecordings Act, in 1984, Lord Mishcon recorded his delight “that we have kept absolutely clear from a governmental authority deciding on censorship”. The enactment  of these latest regulations fundamentally changes the rules of the game – but thirty years on, Government no longer believes it needs to seek any parliamentary approval for such change.

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