Memorandum submitted by the British Board
of Film Classification
EXECUTIVE SUMMARY
— The BBFC is a highly experienced,
independent regulator of film, video/DVD, and video games. Its
determinations have legal force and are based on published guidelines
developed through extensive public consultation.
— The BBFC is currently experiencing
record numbers of submissions, pioneered the comprehensive provision
of individually tailored content advice, and has developed a role
as a major player in the promotion of media literacy.
— The nature of the media it regulates,
and the fact that its regulation involves thorough pre-publication
scrutiny of the material, sets it apart from Ofcom.
— A diversity of regulation is an important
guard against concerns relating to civil liberties (especially
freedom of expression).
— The BBFC has accumulated unrivalled
experience and expertise in the regulation of extreme material,
including "hardcore" pornography and material which
challenges the limits of the law.
— Technological changes are presenting
various and serious challenges to the established regulation of
film, video/DVD and video games, with potentially significant
consequences for the welfare of children in particular and society
in general.
— New media have created platforms
for delivery of audio-visual content which is not subject to any
independent or statutory based regulation.
— Industry self-regulation is unlikely,
on its own, to develop a framework which will achieve acceptable
standards of public awareness, understanding, trust, effectiveness,
accountability and respect for freedom of expression.
— Without such a framework children
and vulnerable adults will gain easy access to material which
is harmful (to themselves or, through their subsequent actions,
to society), and parents will be unable to exercise effective
control over the material to which their children are exposed.
— What is required is a coordinated
and systematic approach, driven by Government, in which the major
new media industry players and the regulators come together to
devise a coherent set of solutions.
— The experience of the BBFC in regulating
a vast range moving image content in a non-linear environment
would be an asset to any such initiative, and the BBFC would very
much like to be involved in any future developments.
INTRODUCTION
1. The British Board of Film Classification
(BBFC) is a highly experienced regulator of the moving image (especially
film, video/DVD and video games), and also a service provider
for new and developing media. The BBFC regulates not just as a
statutory designated authority but also because we believe we
serve a socially useful function. Through the efficient classification
of the moving image into advisory and age-related categories,
the provision of consumer advice and the maintenance of our archive,
we: give the public information that empowers them to make appropriate
viewing decisions for themselves and those in their care; help
to protect vulnerable viewers and society from the effects of
viewing potentially harmful or unsuitable content (while respecting
adult freedom of choice); provide media industries with the security
and confidence of cost-effective, publicly trusted regulation;
help to protect providers of moving image content from inadvertent
breaches of UK law; and assist Trading Standards officers in their
enforcement role.
2. The BBFC's independence is protected
by its status as a not-for-profit private company funded by the
fees it charges for making its determinations. The fee tariff
is based on the cost of considering the submitted material and
is agreed by the Secretary of State for Culture, Media and Sport.
The BBFC's structure reflects the importance of keeping decisions
relating to finance separate from those relating to classification
determinations. Responsibility for classification decisions and
policy ultimately rests with the President and two Vice-Presidents,
while the BBFC's business affairs are controlled by a separate
Council of Management which has no involvement in policy work
or classification. This memorandum is being submitted on behalf
of the BBFC by the Director, who is delegated to make executive
decisions, and to formulate and ensure the execution of policy.
3. This submission was prepared specially
for the Committee and seeks to set out the position of the BBFC
is relation to new media and the creative industries. Paragraphs
5 to 11 deal with the background issues relating to the current
statutory regulation of media content; paragraphs 12 to 18 set
out the current position of the BBFC; paragraphs 19 to 30 identify
the particular areas of BBFC expertise; paragraphs 31 to 42 deal
with the impact of new technology on the established and regulated
sphere; paragraphs 43 to 59 look at moving image content in new
media not subject to statutory regulation; and paragraphs 60 to
75 discuss the opportunities for the regulation of moving image
content in the new media.
4. Any account of the rapid development
in technology, and the consequent changes in the ways in which
the market allows access to media content, runs the risk of creating
a sense that ground has already been lost and that the very possibility
of regulating new media is rapidly slipping away. It is easy to
understand why this impression is widespread but, in the view
of the BBFC, it is not appropriate, especially in light of the
continuing need to protect children, and other vulnerable groups,
from the effects of exposure to certain kinds of media content.
Regulatory regimes are rarely free of gaps and anomalies, and
the absence of a single, perfect solution to the problems thrown
up by the new media should not accepted as an excuse for inaction.
What is required is a coordinated and systematic approach in which
the major new media industry players and the regulators come together
to devise a coherent set of solutions. Such an approach is unlikely
to develop unless it is driven by Government, the only authority
that has an overview across all aspects of new media, technology
and the public policy concerns that underlie all types of media
regulation.
BACKGROUND
5. Founded in 1912, the BBFC's role in the
regulation of cinema films has evolved over many years, both through
legislation relating to the licensing of cinemas and through changes
in the nature of the material and in public attitudes towards
it. Although licensing concerns were originally focussed on issues
such as fire safety they quickly expanded to cover the potential
effects of the films themselves on audiences, including child
audiences. The current statutory basis for the regulation of cinema
films is found in the Licensing Act 2003 which requires that the
admission of under 18s must be restricted in accordance with any
recommendation made by the licensing authority or by the film
classification body designated under section 4 of the Video Recordings
Act 1984 (namely the President and Vice-Presidents of the BBFC).
In practice, almost all cinema films released in the UK are classified
by the BBFC according to its own thoroughly researched guidelines
in order to satisfy the licensing objectives set out in the legislation:
the prevention of crime and disorder; public safety; the prevention
of public nuisance; and the protection of children from harm.
The current classification categories for cinema films are "U",
"PG", "12A", "15", "18"
and "R18", though the latter category is very rarely
used in practice. ("R18" is, however, an important and
well-used category for video/DVD.)
6. The advent of domestic video recorders
in the early 1980s led to widespread concern about the way in
which the new technology enabled children to gain access to unregulated
and inappropriate material, including pornography and extreme
horror films. Parliament responded by introducing statutory regulation
of video works by means of the Video Recordings Act 1984 (the
VRA), and the President and Vice-Presidents of the BBFC were designated
as the authorities responsible for making arrangements for determining
whether video works are suitable to be classified (having special
regard to the likelihood of videos being viewed in the home),
and the classification to be awarded to a suitable video. Since
the amendment made by the Criminal Justice and Public Order Act
1994, the BBFC has also been obliged to have special regard to
any harm that may be caused to potential viewers (including underage
viewers) or, through their behaviour, to society by the manner
in which a video work deals with criminal behaviour, illegal drugs,
violent behaviour or incidents, horrific behaviour or incidents,
or human sexual activity. The current classification categories
for video works are: "Uc", "U", "PG",
"12", "15", "18" and "R18".
7. The definition of a video work under
the VRA is any series of visual images (with or without sound)
produced electronically by the use of information contained on
any disc, magnetic tape or any other device capable of storing
data electronically and shown as a moving picture. It therefore
encompasses moving image material supplied on VHS tape, DVD, UMD
(a disc for playing films on the handheld Sony PSP games console),
games console cartridges, memory sticks or similar, but not moving
images which are transmitted to the user via, for example, the
Internet or mobile phone networks. A video work is also exempt
from classification if, taken as a whole, it is designed to inform,
educate or instruct, or if it is concerned with sport, religion
or music. Drafted at a time when video games had not advanced
far beyond "Pong", "Pacman", and "Space
Invaders", the VRA also offers exemption to video games.
Exemption is lost if to any significant extent, the work depicts:
human sexual activity or acts of force or restraint associated
with such activity; mutilation or torture of, or other acts of
gross violence towards, humans or animals; human genital organs
or human urinary or excretory functions; or techniques likely
to be useful in the commission of offences. Exemption is also
lost if the work is likely to stimulate or encourage human sexual
activity (to a significant extent); or mutilation or torture of,
or other acts of gross violence towards, humans or animals (to
any extent).
8. In performing its classification function
under the VRA and in relation to the Licensing Act, the BBFC recognises
its status as a public authority under the Human Rights Act 1998
and also acts effectively to ensure that regulated works do not
transgress against other pieces of legislation. These include
the Cinematograph Films (Animals) Act 1937, which makes it an
offence to exhibit a work containing real animal cruelty orchestrated
by the film maker; the Protection of Children Act 1978, which
outlaws the taking, possession, showing or distribution of indecent
photographs or pseudo-photographs of children; and the Obscene
Publications Acts 1959 and 1964 (OPA). In carrying out its responsibilities,
the BBFC also has regard to whether the material has arisen from
the commission of an unlawful act. The BBFC provides a convenient
and streamlined single source of authority in considering whether
such statutes may have been breached. In doing so, it assists
not just the public but also the industry in making available
its experience and expertise on possible inadvertent breaches
of the law.
9. In recent years, particularly with the
establishment of Ofcom (the regulator and competition authority
for television, radio, telecommunications and wireless communications
services), content regulation has been concentrated in fewer hands.
The BBFC believes that there is a self-evident benefit in having
a diversity of regulation to guard against concerns relating to
freedom of expression and other civil liberties: the main forms
of regulated, popular, cultural content should not all be overseen
by a single, statutory body.
10. The form of regulation practised by
the BBFC also remains quite distinct from that practised by Ofcom,
for reasons which, historically, have derived from the nature
of film and video content and the different nature of the media
concerned. Up until recently, technological factors (eg the spectrum
of broadcast frequencies) have placed a limit on the number of
TV or radio services that can operate at any one time, encouraging
a requirement that providers must be licensed. Ofcom regulates
TV broadcasts, radio broadcasts and radiocommunications by means
of making adherence to its codes a condition of the licence. Failure
to adhere to these codes may lead to sanctions, or ultimately
to the licence being revoked, but there is normally no assessment
of the content by the regulator prior to its dissemination. An
apparent failure to adhere to the relevant code may be brought
to the attention of the regulator through complaints and, in such
circumstances, Ofcom will rule as to whether the code has, indeed,
been breached.
11. There is no technical limit to the number
of video/DVD distributors. Perhaps more significantly, film and
video/DVD have always attracted a significant amount of content
which challenges the limits set by the law and which raises issues
relating to harm. In light of the experience of the pre-VRA era,
which saw large quantities of obscene material widely distributed,
a "light-touch" approach based on post-publication oversight
has not been considered appropriate for the UK regulation of video/DVD
material. Consequently, the BBFC operates a unique system based
on the independent and thorough assessment of content prior to
its public release. This is carried out swiftly and efficiently,
but nevertheless makes possible a thoroughness of scrutiny, an
accumulation of expertise and an authority in advice provision
which are not available under purely post hoc regulatory
systems.
THE CURRENT
POSITION
12. The BBFC is currently experiencing record
numbers of submissions, mainly as a result of the industry move
from VHS video tape to DVD and the resulting submission of back
catalogue titles and "added value" material. The past
year has also seen a dramatic rise in the number of submissions
of video games for reasons that are dealt with in paragraphs 41
to 43. Overall, in 2005 the BBFC dealt with 16,965 individual
submissions, compared with 5,259 submissions in 1997.
13. Despite the rapidly increasing workload,
the BBFC has dramatically improved its levels of productivity
and efficiency over the same time period. Average turnaround times
for decisions have fallen to a quarter of their previous level,
and successive fee reductions in 2002, 2003 and 2004 have reduced
the cost of classification by 30%. The industry has the facility
to challenge BBFC decisions by reference to the local authorities
(for film) or through the independent Video Appeals Committee
(for video works). However, appeals of that sort are exceptionally
rare, with just two appeals with regard to video works since 2000. This
low rate of appeal is despite the fact over 10% of new films are
given a higher category than that sought by the distributor, and
over 23% of pornographic "R18" video works are subject
to compulsory cuts (usually to material which is obscene, violent,
abusive or non-consensual).
14. Productivity gains have not been at
the expense of the quality of decision making, which continues
to be exercised in accordance with the criteria set out in our
published guidelines. These guidelines, introduced in 2000 and
revised and updated in 2005, are based on over 90 years of experience
and expertise in the regulation of the moving image, and are informed
by very substantial research exercises designed to ensure that
our policies are broadly in line with public opinion. The latest
published guidelines were produced after consulting over 11,000
people across the UK covering all ages and demographic groups.
The main outcomes of the research were that overall support for
the guidelines had gone up from 59% in 2000 to 63% in 2004. Support
for the guideline criteria had also increased on each of the issues
of main concern to the public—sex, drugs, violence and bad
language. High levels of public recognition and understanding
of current film and video/DVD regulation are also recorded by
recent Ofcom research [Language and Sexual Imagery in Broadcasting:
A Contextual Investigation by the Fuse Group, Sept 2005] which
revealed that viewers differentiated between dedicated TV content
and films broadcast on television on the grounds that the films
had already been classified by the BBFC and the classification
was known. A comprehensive and very recent review of media effects
research also concluded that "Public attitudes to film content
are, generally, more tolerant than for television. This is partly
because the public is also aware of and supportive of, current
levels of regulation in film, and partly because people understand
the decision process behind choosing to watch violent or sexual
content." [Harm and Offence in Media Content: A review of
the evidence by Andrea Millwood Hargrave and Sonia Livingstone,
Jan 2006]. Viewers clearly regard a properly regulated environment
to be a safe environment and appear to have confidence in the
regulation provided by the BBFC.
15. In recent years the BBFC has also sought
to enhance its reputation as centre of excellence in media regulation
and related functions, both nationally and internationally. This
is particularly evident in the field of media education. For the
BBFC, enabling members of the public to make informed choices
about what to view, and what to allow those in their care to view,
is a fundamental aim. The provision of a clear classification
and of some specific content advice for each individual work is
a significant contribution but the usefulness of such information
is greatly enhanced if the public itself is aware of the nature,
purpose and extent of regulation and possesses the critical media
literacy tools that allow the information to be used effectively.
16. To that end, the BBFC has developed
two dedicated educational websites. The first, CBBFC (www.cbbfc.co.uk),
launched in 2003, is aimed at primary school children and their
carers and teachers and seeks to heighten awareness and understanding
of the regulation of the moving image through interactive activities
in an appealing and fun environment. During 2005, the site achieved
1.3 million hits resulting in over 34,000 significant sessions
lasting, on average, nearly 12 minutes each. The second website,
SBBFC (www.sbbfc.co.uk), is aimed at media studies students and
teachers and features a range of resources, including case studies
of key decisions. It was launched in June 2005 and by November
was receiving over 108,000 hits per month resulting in over 6,000
significant sessions per month. Both websites are constantly updated
and improved. They also complement the longstanding commitment
to make presentations to education establishments on the work
of the BBFC, a programme which resulted in around 60 presentations
to over 5,000 students (from primary school to University level)
in 2005 alone. The BBFC is thus a major player in the promotion
of media literacy in the UK, and no media literacy strategy would
be complete without adequate treatment of the films, videos, DVDs
and video games which the BBFC regulates.
17. As required by the VRA, the BBFC keeps
an archive of classified works and uses this resource to assist
Trading Standards Officers (TSO) in their enforcement role in
relation to alleged breaches of the legislation. In many cases,
before a prosecution can take place, the TSO must first establish
the true classification of the video work, or that the work is
not classified, or that the work differs from the version classified.
The BBFC provides this information in the form of a Certificate
of Evidence, after checking the title on screen against our database
of classified titles or, where necessary, by conducting a detailed
comparison between the seized copy and the archive copy. In 2005
the BBFC provided Certificates of Evidence for use in court proceedings
involving 13,269 video works.
18. During 2005, one of the clear intentions
of Parliament in passing the VRA was challenged by a number of
distributors using the mechanism of the VAC. Eight distributors
appealed, claiming that nine explicit "hardcore" sex
videos works should be classified "18" and allowed on
general sale rather than "R18" with sale restricted
to licensed sex shops. The videos were fairly typical "hardcore"
fare, featuring close up images of genitals engaged in various
consensual and legal sexual acts, and designed primarily for the
purpose of sexual arousal. The BBFC vigorously defended the decision
to classify the works "R18", engaging leading counsel
and arguing that such a classification was appropriate given Parliament's
clear intention, the public policy objectives underlying it, and
the evidence of public opinion on the issue. The appeal was unanimously
dismissed.
PARTICULAR AREAS
OF EXPERTISE
19. There is inevitably some overlap between
the work of the media regulators: films classified by the BBFC
for cinema and/or video/DVD release often end up being transmitted
on television (and subject to regulation by Ofcom) while successful
television programmes and series will often be submitted to the
BBFC in order to allow their release on video/DVD. Although the
regulators take broadly similar approaches to the suitability
of certain types of mainstream content for different age groups
(not least because they rely on a common body of research evidence)
there are very significant differences in terms of the manner
in which the regulation is carried out, and the range of material
dealt with on a daily basis. The BBFC would also stress the value
of the existence of a diversity of media regulation, not least
in ensuring freedom of expression.
20. The BBFC believes that much of the trust
and respect its regulation commands among the public is derived
from the fact that it examines each and every piece of classified
material prior to its release, attaches a simple and unequivocal
rating based on criteria set out in researched and published guidelines,
and provides clear and concise content advice (eg "Contains
strong language and bloody violence"). Our classification
symbols are instantly recognised and very widely understood, especially
by children and those with responsibility for children.
21. Beginning in the mid-1990s, the BBFC
pioneered the systematic and comprehensive provision of content
advice and has persuaded the film, video/DVD, and video game industries
to carry the advice provided on video work packaging and film
promotional material. The nature of the advice provided is kept
under constant review and will be shortly be adjusted in accordance
with the results of a major research exercise designed to discover
ways in which the wording of the advice might be improved to make
it even more useful to the public. The BBFC remains convinced
that content advice is best provided by an impartial body, free
from commercial considerations, and that a simple but individually
tailored sentence deriving from continuous scrutiny is far more
effective than a simplistic and rigid system involving numbers
or pictograms.
22. The material submitted to the BBFC for
classification covers a much broader range than that broadcast
on UK television, from the mildest of entertainment for pre-school
children to the most horrific and exploitative examples of fictional
sexual violence and real death and mutilation. Importantly, the
BBFC's judgements have statutory force: it is illegal to sell
or hire an unclassified video work (unless exempt), or to sell
or hire a classified video work to a person below the age specified
by the certificate. As a regulator, the BBFC is unique in its
experience and expertise in relation to "extreme" material
and has developed robust policies and procedures for ensuring
that the right to freedom of expression is properly balanced against
the need to protect the vulnerable from harm. Two recent examples,
both refused classification by the BBFC, illustrate the nature
of the trend in "reality" material.
23. Bumfights: A Cause for Concern is a
US video/DVD work in which the film makers persuade real homeless
people, who are often incapacitated through drink or drugs, to
fight or take part in dangerous stunts. Some of the incidents
result in significant injuries, for instance one man pulls his
own tooth out with pliers and another sustains a broken ankle
during a fight. Part of the work is given over to a spoof wildlife
programme in which the film makers approach homeless men who are
asleep in public areas and treat them as if they are wild animals.
This typically involves startling, forcibly subduing and then
binding their arms, legs and mouths with duct tape. Their physical
attributes are then discussed as if they are not human. There
is considerable doubt as to whether the homeless men in these
sequences are consenting and they appear bewildered, frightened
and angry. The film makers were convicted for soliciting an assault
during filming and the video is reported to have sold over three
hundred thousand copies in the USA. Two sequels have been made.
24. Terrorists, Killers and Other Wackos
Volume 1 [aka Terrorists, Killers and Middle East Wackos]
also appears to have been produced in the USA but features real,
documentary material from around the world. The work edits together
over 50 minutes of footage of people being killed or seriously
injured. The incidents are not put into any recognisable documentary
or news context and appear to have been selected for shock value
alone, and edited together almost at random. Upbeat music and
"jokey" captions (including an onscreen graphic which
keeps a running score of the number of "mullet" haircuts
seen onscreen) suggest that the primary purpose of the work is
to entertain or even amuse but there is little doubt as to the
reality of the footage. Sequences include live kangaroos having
their limbs sliced off, a man having his arm hacked off, a man
being shot in the face but remaining alive for a while with his
face half destroyed, people on fire in the Bradford City FC disaster,
a dead man being scalped and many similarly horrific images.
In both cases, the context as much as the detail
was crucial to the decision to reject.
25. The BBFC is also unrivalled in the UK
in its experience in relation to the regulation of sex material.
Since the adoption of new guidelines in the summer of 2000, legal
material designed to sexually arouse and featuring clear sight
of real sex between consenting adults has been classified in the
specially restricted "R18" category. "R18"
video works can only be sold to adults who visit a licensed sex
shop and must not be supplied by mail order. The Ofcom code also
specifically outlaws the transmission of "R18" material
or its equivalent on UK television. During 2005, the BBFC classified
1285 video works "R18" (including trailers). The type
of material classified at "R18" is that informally known
as "hardcore". Such works normally feature close up
images of genitals during the performance of various sex acts,
including oral, anal and vaginal penetration, masturbation and
ejaculation. Unlike the "softcore" images commonly passed
at "18", in "R18" works there is normally
no doubt that the sexual act is being performed for real rather
than simulated.
26. The regulation of "hardcore"
sex material is a particularly difficult and specialised enterprise
which is not well suited to a "light touch" approach
based on responses to complaints, not least because the audience
is unlikely to complain at the excesses. Much of the material
deliberately skirts the boundaries of consent, legality, abuse,
and harm with the result that the BBFC is forced to intervene
with a regularity unmatched in other types of material: during
2005, 23.3% of "R18" features were subjected to compulsory
cuts. It is abundantly clear to us that self-regulation would
not work in such an area, and would leave serious abuses.
27. The modern trend in explicit "hardcore"
sex works is to depict sexual activity free from any pretence
at narrative or relationships, and to show participants (especially
women) being pushed to the very limits of their physical capabilities,
often in a group sex scenario. Consensual adult activities are
carried out in a manner which ranges in tone from gentle to mechanical
to domineering to aggressive to abusive, and the task of establishing
at which point to draw the line is not at all straightforward.
Many "hardcore" works also play around with notions
of consent, youth, innocence, inappropriate relationships, pain
and violence in ways which range from relatively innocuous to
extremely disturbing. Over the course of years of experience of
classifying thousands of "hardcore" submissions, the
BBFC has developed policies and procedures which allow for the
consistent application of the tests of harm and legality.
28. In relation to pornography and harm,
the BBFC takes account of the vast and varied body of research
evidence and also takes expert advice from specialist psychologists
and psychiatrists.
29. The legal issues relating to pornography
are also complex and include consideration of offences which may
have been committed in the UK during filming (eg public indecency,
voyeurism), issues relating to privacy (eg private home videos
being distributed commercially), and material which may itself
be illegal. The latter category includes both indecent images
of children and material which might fall foul of the OPA. The
question of what might be considered "obscene" in UK
law is particularly difficult. In effect, it is up to each jury
to decide what constitutes obscenity and the standards not only
change over time but also vary from jury to jury and from geographical
area to geographical area. The BBFC seeks to avoid classifying
obscene material by ensuring that it is up to date with the current
application of the law.
30. As a result of its daily experience
of regulating extreme material in the age of the Human Rights
Act, the BBFC has developed significant expertise in balancing
freedom of expression against the constraints on such freedom
required by UK law in the interests of the public and of society.
The BBFC has offered this expertise to the Home Office as it considers
introducing a new offence relating to possession of extreme pornographic
material. The BBFC's response to the Home Office consultation
is available on our website and on request. It deals in some detail
with the difficulties of legislating in this area, and offers
practical solutions.
The impact of new technology on the established
and regulated sphere
31. The advent of new technology has always
had an impact on the regulated sphere, usually by providing previously
unthought-of ways of getting around the rules, either legally
or illegally. For instance, long before video the advent of domestic
8mm cine projectors facilitated an under-the-counter trade in
"stag films" which would not have been classified for
cinema release at that time. It may not be realistic to eliminate
all such circumvention, but it does not follow that it will have
a serious impact on the ability of the established regulatory
regime to satisfy the public policy objectives that led to its
creation. However, some developments may herald a scale of circumvention
that undermines the efficacy of the existing system. The advent
of the domestic video cassette recorder (VCR) was such a development:
the sudden, widespread, cheap and easy availability of extreme
moving image content, especially to children, with no effective
statutory control beyond the clumsy instrument of the OPA, threatened
to make a nonsense of the long established regulation of film
and television and necessitated the creation of a new framework
under the VRA.
32. Of course, the regulatory atmosphere
is very different in 2006 from in 1984. Changes in public
attitudes and the Human Rights Act have encouraged the BBFC to
place more emphasis on classification and the provision of information,
and less on censorship for adults. The result is that in 2005,
there is simply no gap between what most adults want to be able
to see and what the BBFC classifies. For most adults, the facilities
offered by new technology and new media to avoid regulation are
irrelevant. However, for those who actively seek the most extreme
material (including: animal cruelty; real killing, torture and
mutilation; sexual violence; violent or abusive pornography) technology
and new media certainly offer easy access to the forbidden. The
following paragraphs provide real world examples of the challenges
the new technology is making to the established regulation of
film, video and video games carried out by the BBFC. They are
based entirely on publicly available information, and do not claim
to give an authoritative or definitive account of the plans of
players in the market.
STILLS GALLERIES
33. The rise of DVD in place of videotape
does not represent the same degree of change as the advent of
domestic VCRs, not least because the DVD format falls squarely
within the VRA's definition of a video work, meaning that moving
image material is subject to the same regulation whether it is
distributed on video tape or DVD. However, the medium of DVD,
with its perfect freeze frame images and choice of fast forward
speeds has prompted some distributors to exploit a lack of clarity
in the law by displaying as still images content deemed unacceptable
at the classification awarded.
34. Whether such collections of still images
can legitimately claim exemption under the VRA has not, to our
knowledge, been tested in the courts to date, but it has certainly
happened. For example, the Japanese animation Urotsukidoji IV-
Infernal Road—Episode One—The Secret Garden, was refused
a classification on the grounds that scenes in which adults engage
in an orgy of pornographic sexual activity in front of, and at
the behest of, child characters were, on the basis of expert psychological
advice, likely to stimulate paedophile fantasies to a degree which
justified rejection of the work outright. The distributor released
a DVD which included a different, classified episode in the series
together with a series of still images from the rejected episode
(including some of the most contentious images) accompanied by
the original soundtrack, claiming exemption for the stills gallery
as a separate video work on the grounds that it did not contain
moving images. The same apparent loophole allows a distributor
of sex material to include explicit "hardcore" stills
on a disc rated "18" for general sale when similar but
moving images would attract an "R18" classification,
limiting sale to licensed sex shops. It is not clear to what extent
distributors are taking advantage of the legal ambiguity at present.
WEBSITE POSTING
OF CUT
MATERIAL
35. Material cut as a condition of classification
can also be posted on a website, with addresses advertised both
on the packaging and on the disc itself. The viewer then simply
has to visit the website to see the material that was cut under
the VRA. A similar scenario was played out by the distributors
of Last House on the Left, a grittily realistic 1970s horror film
in which two young women are sexually humiliated, raped, killed
and disembowelled. The BBFC was concerned that certain sequences
in the video work presented sexual and sexualised violence in
a manner which raised unacceptable risks of harm and consequently
asked for cuts to be made. The distributor appealed to the VAC,
arguing that the video work should be passed uncut. On losing
the appeal, the distributor released the video work with the cuts
made but allowed UK viewers to watch the cut material online (including
a woman being forced to wet herself under threat of violence,
a woman having a rapist's name carved into her chest with a knife,
and a woman's entrails being pulled out). The BBFC has never accepted
that the possibility of such website posting of cut material is
a valid reason for it to relax its regulatory vigilance, but it
would obviously be preferable if such circumvention could be challenged.
HOTEL "TV"
SERVICES
36. Many UK hotels now offer access to explicit
"hardcore" "R18" material via the TV set in
guest bedrooms. Hotels are supplying the service on the grounds
that, in their view, it falls outside the regulation conducted
by both the BBFC and Ofcom. Because no physical storage device
(eg a tape or disc) is physically supplied to the guest, the hotels
claim that it falls outside the remit of the VRA and so avoids
the condition that such works should only be supplied in licensed
sex shops. The hotels further claim that the nature of the service
also allows them to operate beyond the reach of Ofcom, whose television
code forbids the broadcast of "R18" material or its
equivalent.
INTERNET-BASED
MAIL-ORDER
SERVICES
37. We have provided a separate note to
the committee, on an in-confidence basis, on how such services
may seek to circumvent UK law and regulation.
SOPHISTICATED GAMEPLAY
AND GRAPHICS
38. As noted in paragraph 7, the general
exemption for video games under the VRA was drafted at a time
when video gaming was in its infancy and the possibilities for
content were extremely limited. At that time it was simply not
possible to create, or perhaps even to imagine creating, the sort
of violent role playing game that has now become commonplace,
complete with increasingly realistic representations of human
characters and highly detailed depictions of violent and sexual
acts, especially on the latest consoles.
39. In terms of realism, the gap between
conventional live action video material and video games is rapidly
shrinking yet the latter may only lose exemption from statutory
classification if they depict (or, in relation to sex and violence,
stimulate or encourage) human sexual activity or acts of force
or restraint associated with such activity; mutilation or torture
of, or other acts of gross violence towards, humans or animals;
human genital organs or human urinary or excretory functions;
or techniques likely to be useful in the commission of offences.
In effect this means that unless a depiction of violence is brutal,
repulsive or horrific, the video game can claim exemption. In
the view of the BBFC this is a very high test which leaves much
material which is clearly unsuitable for young children, and which
would clearly attract an age restrictive category if submitted,
exempt from statutory classification.
40. In recent years the video game industry
has attempted to self-regulate via the voluntary "PEGI"
system (in which video game developers fill in a questionnaire
and are allocated a non-statutory rating on the basis of their
answers) creating a two tier system in which some games have unenforceable
voluntary ratings based on self assessment while others have legally
binding classifications based on a thorough examination of the
game by independent BBFC examiners. It is notable that since media
and political concern about the possible harmful effects of video
games was highlighted by the video game Manhunt, the industry
has decided to claim exemption for far fewer games than before.
This has resulted in a dramatic rise in video game submissions
to the BBFC, from 43 in 2004 to 198 in 2005, with the upward trend
still very apparent. Unlike the PEGI system, the BBFC's regulation
of games is based on extensive sampling and the power to intervene
and, if necessary, reject a game.
WEBLINKS
41. The issue of direct weblinks is becoming
a significant issue with respect to interactive discs, including
video games. It is increasingly common for interactive discs submitted
to the BBFC to include weblinks, reflecting the fact that the
PCs and consoles on which such discs are played are routinely
linked to the internet by ever faster broadband connections. Although
the material on the disc is "fixed", the weblink directs
the user to a space on the internet and this space can be filled
with any manner of material, the nature of which can change from
day to day. Although many weblinks are obvious to the user, allowing
a conscious choice to be made to enter the unregulated world of
the internet, others are "seamless" and it is easy for
even an experienced user to be unaware that what is on screen
is unregulated internet content. The result is that an interactive
disc rated "12" or "PG" may lead directly
to online material which is wholly inappropriate for children,
material which may not have existed when the disc itself was classified.
It is likely that many parents are completely unaware of the possibilities
created by weblinks.
DOWNLOADING "PATCHES"
AND ENHANCEMENTS
42. Video game players are now commonly
offered, via the internet, downloadable "patches" or
enhancements which are free from regulation and which significantly
alter aspects of the regulated, retail version of the game. A
parent may buy their child a video game classified "12"
on the basis that the violence is bloodless, only for the child
to download a "patch" which adds blood every time a
violent act is depicted. The changes brought about by the "patch"
may take it beyond the limits of the classification category awarded
to the original disc. The existence of such "patches"
was widely reported in relation to the game Grand Theft Auto:
San Andreas, the fastest selling video game of all time (one million
copies sold in nine days). In this case a "patch" downloaded
from the internet allowed the player to see a sex scene which
was written into the code of the classified retail disc but which
was otherwise impossible to access (and which had therefore necessarily
been invisible to BBFC examiners at the time of classification).
"Patches" may be provided online by the games developers
or by "amateurs" with no links to the makers of the
game. They may also be sold as retail discs, attracting BBFC classification
if exemption is not claimed.
MOVING IMAGE
CONTENT IN
NEW MEDIA
NOT SUBJECT
TO STATUTORY
REGULATION
43. In the view of the BBFC, regulation
of the moving image has demonstrated its social usefulness over
many decades. Effective regulation gives the public information
that empowers them to make appropriate viewing decisions for themselves
and those in their care, and helps to protect vulnerable viewers
and society from the effects of viewing potentially harmful or
unsuitable content while respecting adult freedom of choice. Far
from being a burden upon industry, the best regulation provides
media industries with security, confidence and public trust, and
helps to protect providers of moving image content from inadvertent
breaches of UK law.
44. The rapid development of new media platforms
for delivering moving image material, and the fact that content
provision on those platforms has often been global or regional
in nature, has meant that effective national regulation has been
largely absent. Although many new media companies operate their
own content standards and means of control, it is not clear that
these are understood or used effectively, especially by those
with responsibility for children. Indeed, in many cases where
technological solutions are offered, children appear to be more
capable of controlling the viewing of parents than vice versa.
After researching the effectiveness of PIN protection systems
with regard to subscription TV services, Ofcom concluded that
the currently available systems were not sufficiently effective
in preventing underage access to allow "R18" equivalent
material to be broadcast under any circumstances.
45. Of course, there are legal controls,
including offences relating to the distribution and possession
of indecent images of children, but beyond this very serious area
of concern, existing legislation struggles to make an impact,
either because the means of distribution falls outside the legal
definitions of regulated media such as television, video/DVD and
film, or because the source of the material is outside the UK.
The result is something of a free-for-all, in which the best efforts
of self-regulation are undermined by both the lack of a consistent
form of regulation and the vast amount of unregulated material
available. This leaves the public poorly equipped to make informed
choices about their viewing, and the viewing of those in their
care. It also leaves children open to exposure to material that
is clearly unsuitable for them, with consequent risks to their
well being and to the well being of society in general. Real examples
of the possibilities for unregulated viewing offered by new media
are discussed below.
MOBILE PHONE
VIDEO CONTENT
46. A feature of the latest 3G mobile phones
is the ability to view high quality video clips and the mobile
phone operators are making available a wide range of video content
to paying customers on dedicated and branded portals. In the future
this is likely to include full features and well as short clips.
The type of content ranges from sport (eg Premiership goals) and
soap operas to clips from horror movies and of simulated sex.
"Hardcore" pornography, featuring close up images of
genitals during the performance of various sex acts, may start
to appear, even if major players set their faces against it. The
industry has set up its own content board which uses a binary
system which identifies content as either for general access or
for adults only. New phones are barred to material rated "adult
only" until the user establishes that they are over 18. It
is not clear how effective this form of self-regulation will be
as the operators have little or no experience of video content
regulation and phones are routinely passed on to younger family
members. The self-regulation also only applies to material provided
directly by the phone operator.
47. When mobile phone operators provide
audio-visual content as part of a mobile TV channel (ie where
content is broadcast to phone handsets in a schedule controlled
by the content provider) they are subject to regulation by Ofcom,
but the phones are also designed be used to access the Internet,
and material accessed in this way is not subject to any regulation.
As a personal possession, carried in a pocket or bag, it is very
easy for children to access inappropriate material using a mobile
phone without a parent or carer being aware.
48. Mobile phones also enable video material
to be viewed in public places, for example on a bus or train,
risking unwanted exposure to material which is offensive, disturbing
or age inappropriate. The same risk is present with portable DVD
players but the ubiquity of mobile phones makes the problem potentially
much larger in scale. The ease with which the latest mobile phones
allow users to download Internet clips (eg of hostage beheadings)
or to create their own videos (eg of sexual encounters) exacerbates
the problem.
49. Bluetooth technology, which is free
to use and available on most new mobile phones, also makes it
very simple for friends to swap video clips between mobile phones,
and children's charities have already expressed concern over the
ease with which pornographic video clips can be passed from phone
to phone in the playground. A child using a phone with Bluetooth
technology could also receive unsolicited video clips from an
unknown adult nearby. If the video clip was of a lewd act then
investigation of the incident would be hampered by the lack of
an audit trail (in contrast to e mails, phone calls and text messages).
VIDEO I-PODS
AND OTHER
MP3 PLAYERS
50. The latest version of Apple's best selling
portable music storage device allows for the storage of video
clips as well as music and still photos. Unregulated video clips
can be downloaded from the internet with ease and viewed anywhere
and with anyone.
PEER TO
PEER (P2P)
51. Software exists, and is easily available
online, which enables internet users to share video files with
users who are not known to them, in much the same way as "Napster"
allowed the sharing of music files. Using a "Kazaa"
or a BitTorrent server, a PC user can gain access to video clips
stored on the computers of other users of the software. Such sharing
is usually without charge so lacks even the flawed proof of age
afforded by a credit card transaction. Moreover, such sharing
can be undertaken on the family computer without any of the signs
(eg an entry on a credit card statement) that might be left by
a commercial online transaction.
52. Google have recently made such peer
to peer activity much easier with the launch of "Google Video"
(http://video.google.com) in January 2006. This enables individuals
(or companies) to upload clips to an online video store where
Internet users can view them online or download them for future
use. Previews can be viewed for free and much content is free
to view in full. Only "premium" content must be paid
for. Google's conditions of service prohibit pornography, invasions
of personal privacy, promotions of hate or incitements of violence,
and the company claim that both human and software-based censors
vet the content. However, such measures did not prevent video
content very similar to reality footage rejected by the BBFC being
available. This included: footage of a bloody, bare-knuckle, unlicensed
boxing match between two men in a backyard; a 17-minute film of
violent altercations between women, with the combatants egged
on by a crowd of onlookers, and ending, in one instance with a
teenage girl appearing to have been knocked unconscious; and footage
that purportedly shows a suicide bomber blowing himself up on
a busy street.
ONLINE GAMING
53. This submission has already touched
upon some of the issues that arise from the connection between
classified video games and the internet, by way of weblinks and
"patches". Of equal concern is the way in which the
internet allows gaming to take place completely on line, and this
is a feature which is actively promoted by the industry. A whole
class of games, known as "Massively Multiplayer Online Role-Playing
Games" (MMORPGs) are specifically designed to be played online
between a great number of players who are otherwise unknown to
each other and may involve content which would attract an age
restrictive classification if submitted for classification. Such
games often involve taking the role of a character who engages
in acts or violence or sex, at the instigation of the player.
If the code that enables the individual to play the game is located
online rather than on a disc or other physical storage device
then it arguably falls outside the current remit of the VRA, though
the law is not clear. With games becoming increasingly realistic
it is possible that online gamers may soon be able to play games
which would be rejected if submitted for classification under
the VRA.
54. Video games also lend themselves to
constant review and improvement, as "bugs" in the code
revealed by wide use are ironed out and enhancements are offered,
often in return for payment. Unlike a feature film, a game may
not have a final version but will instead be capable of evolving
almost constantly. When distributed as a disc or similar, enhanced
versions require a new classification (unless exempt) and a whole
new physical product must be manufactured and shipped to shops
and customers. Not surprisingly the industry regard physical product
as a cumbersome means of delivering the code to games players
and Microsoft, a leading player in the industry, has already announced
its intention to sell games for its X Box 360 consoles via downloads
from the Internet rather than on discs in the future. A similar
outcome is likely for the upcoming Sony Playstation 3. Such
a development would lift games out of statutory classification
altogether and has already started to happen: the video game Half-Life
2 was available to download online before it was released as a
disc classified "15" by the BBFC.
INTERNET VIDEO
ON DEMAND
SERVICES (VOD)
55. Long heralded as the new media application
that would kill video tape and DVD, this form of delivery has
so far failed to encroach upon the mainstream video/DVD industry
which, as noted earlier, continues to thrive. However, the major
obstacles to its uptake as a commonplace means of accessing film
content and similar are likely to decrease in size in the near
future. The ability to download the material in a high quality
format, in short time periods, and without technical hitches improves
almost daily and in time the deciding factor may be the business
models of the main providers of content (especially the major
Hollywood studios). Currently DVD provides the major revenue from
a film production but VOD has already begun to be offered after
the initial DVD release of a major film (as another stage in the
release schedule, alongside TV rights) and both BT and Sky have
announced plans to launch broadband Internet VOD services which
will feature major films. In the long term, it is possible that
VOD might replace DVD altogether.
56. Internet based VOD services would not
be covered by the existing regulatory regime and could quickly
become a mainstream means of accessing the full range of moving
image material currently classified under the VRA. With the BBC
launching Internet VOD services for its popular TV programmes,
public interest in using this facility, and commercial interest
in providing content in this way, may rise dramatically in a short
space of time.
57. The sex industry, which often leads
in finding profitable business models in new media, is already
offering a vast range of VOD services and many in the industry
are privately predicting that, given the restrictions that apply
to the sale of "R18" videos and DVDs, the UK adult video
industry will soon be a predominantly online industry, free from
regulation under the VRA. Already those intent on accessing the
most worrying types of pornography can use VOD to do so. For example,
a consumer, wishing to view the uncut version of an "R18"
DVD, from which the BBFC has ordered the removal of scenes of
abusive and violent sexual activity, can log onto the US production
company's website, from where the original, uncut version of the
work is available electronically. The customer has the choice
to: "stream" the video (watch it on a high speed connection
as it is downloaded); save the whole video to his hard drive and
watch until he deletes it, or its digital licence expires; or
burn the file to a DVD. Unless the individual was intending to
publish the material (thus bringing possession within the scope
of the OPA) or underage participants were involved (engaging the
Protection of Children Act), no offence would be committed. The
unregulated market in Internet pornography offers material which
goes way beyond that permitted in BBFC classified "R18"
works, and routinely features scenes in which women are made to
gag repeatedly as they perform deep throat fellatio, are depicted
as underage children, or are subjected to violence or other forms
of abuse. In the view of the BBFC, the production of such material
is likely not only to risk harm resulting from its consumption,
but also to risk harm to those who perform in it.
58. There are many different types of "adult"
Internet VOD services, including live sex webcams in which viewers
pay to see a performer follow their instructions, but common to
all is the lack of independent regulation and the difficulty in
establishing over the Internet the age of the purchaser of the
material. The industry standard is to rely on possession of a
credit card along with a self-declaration as proof of age. Unfortunately,
the possession of a credit card is no longer reliable evidence
of age. Leading credit card companies offer a service in which
an adult account holder can purchase additional "pre-paid"
cards for use by children as young as thirteen. The card is "topped
up" as one might "top up" a pay-as-you-go mobile
phone and as long as there are sufficient funds deposited, the
thirteen year old can use the card exactly as an adult would.
Some parents clearly see this as a convenient way of paying a
child an allowance but an online business has no way of knowing
that the cardholder is thirteen. The only check is that the transaction
will eventually show up on the adult account holder's statement,
though whether this will enable the adult to identify age inappropriate
purchases of pornographic material is debatable.
59. Other websites offer more ghoulish fare,
including uncensored video footage of real killings and mutilated
corpses. For example Ogrish.com (http://www.ogrish.com) offers,
among dozens of video clips of gruesome accidents and murder victims,
video clips of British hostage in Iraq Kenneth Bigley pleading
for his life and being beheaded. The site is sponsored by, and
has hyperlinks to, various Internet sex sites offering explicit,
"hardcore" sexual content, a combination of real violence
and real sex that raises still further the level of concern about
the effect the material might have on viewers. The site can be
freely accessed by anyone who is prepared to tick a box saying
they are 18.
OPPORTUNITIES FOR
THE REGULATION
OF MOVING
IMAGE CONTENT
IN THE
NEW MEDIA
60. This submission has attempted to set
out some of the issues which have arisen, and which are likely
to arise, from the provision of moving image content in, and via,
the new media, concentrating in particular on the gaps that have
arisen in the regulatory framework established by Parliament in
a technologically different age. In doing so, it has concentrated
on the potential for these gaps to undermine the existing regulation
of film, video, DVD and video games if they are not dealt with.
It must be emphasised, however, that the point at which the unregulated
new media overwhelms the regulated sphere is still some way off
and the BBFC is committed to finding ways in which the benefits
of the independent regulation it specialises in can be offered
to providers and consumers of currently unregulated moving image
content. To that end, the BBFC has commissioned leading industry
analysts Screen Digest to undertake research intended to deliver
valuable insights into the way the new media is moving and the
sorts of services the BBFC might be able to offer.
61. Without prejudice to the outcomes of
that research, the BBFC is convinced that models of regulation,
including co-regulation, can be developed for the new media and
is keen to play a part in closing the gaps in the current system.
The BBFC is widely recognised as a trusted guide to moving image
content, has much to offer in the way of experience and expertise,
and has already been approached by new media companies, including
major mobile phone operators, video game developers and video
on demand providers, seeking advice and assistance in creating
an environment in which consumers can choose moving image content
with confidence. At present, these initiatives are rather piecemeal
and it is likely to take a lead from Government to ensure that
a critical mass of new media providers make full use of the regulatory
services on offer.
62. It is worth noting that the current
EU proposals for amending the Television Without Frontiers Directive
would, if adopted, require the establishment of basic rules for
"non-linear" audiovisual services delivered over electronic
communication networks (including Internet based video-on-demand).
In particular, Member States would need to take appropriate measures
to ensure that audiovisual services under their jurisdiction are
not made available in such a way that might seriously impair the
physical, mental or moral development on minors; and that they
do not contain any incitement to hatred based on sex, racial or
ethnic origin, religion or belief, disability, age or sexual orientation.
We make no comment here on the desirability of the latest version
of the proposals, which have been criticised. Our point is, rather,
that any sensible approach to the issues set out in this memorandum
will benefit from the expertise which the BBFC has built up.
63. Of course, arguments will be put forward
in favour of models of pure self-regulation. Such regulatory frameworks
have advantages in certain circumstances but often struggle to
attain necessary standards of understanding, trust, effectiveness,
accountability, independence and respect for freedom of expression.
A major European Commission funded study of existing modes of
media regulation [Self Regulation of Digital Media Converging
on the Internet: Industry Codes of Conduct in Sectoral Analysis—by
the Programme in Comparative Media Law and Policy, Oxford University
Centre of Socio-Legal Studies, PCMLP-IAPCODE] looked in depth
at the various regulatory frameworks used in regulating broadcasting,
Internet content, computer games, films, and mobile phone services,
particularly across the EU. It identified significant weaknesses
in many current models of self regulation, especially in relation
to Internet content.
64. The existing use of "trust marks"
(logos indicating that a website has been certified by a self-regulatory
body) is rendered rather ineffective by very low levels of knowledge
and trust, with just 10% of EU citizens aware of trustmarks in
2003. In addition to low brand awareness, monitoring of compliance
is rarely proactive, and sites are very rarely removed from a
trust mark scheme. Without government intervention, or the threat
of government intervention, and without independent oversight,
it is doubtful whether the industry will of its own accord devise
and fund a trust mark system which is both commonly used by content
providers and widely recognised, understood and trusted by the
public.
65. The PCMLP-IAPCODE study also set out
in detail how the particular legal framework within which Internet
service providers and Internet search engines operate has led
to negative consequences arising from the operation of self-regulation
through "Notice and Take Down" procedures. This is the
system whereby service and content providers remove or block access
to illegal material when it is brought to their attention. There
is no doubt that, especially in the UK, this mechanism has led
to the removal of a great deal of harmful material, indeed, in
2003, the Internet Watch Foundation recorded over 25,000 incident
reports. However, such successes mask inherent weaknesses.
66. In general, service providers and search
engines are not legally liable for the content of material accessed
using their services. They are treated as a mere "conduit"
(in the same way as a telephone operator is not held responsible
for the content of a phone call). However, when a service provider
or search engine obtains actual knowledge of illegal content then
they are usually legally obliged to remove it or to prevent consumer
access to it. Legally speaking (we make no comment on the actual
policy intentions of individual players), it is therefore in the
interests of service providers and search engines to be as ignorant
as possible of the content being accessed using their services,
because if they do not know then they cannot be held liable. This
is known as the "see no evil, hear no evil, speak no evil"
effect and one consequence has been an increase in the number
of unmoderated chat-rooms as major players such as Microsoft and
AOL have closed down moderated chat-rooms for fear of being liable
for the content posted by users. This cannot be in the interests
of children.
67. "Notice and Take Down" schemes
depend upon reports of illegal content from Internet users, via
dedicated "hotlines". Even the most successful are hampered
by a lack of public awareness, with a European Commission "Eurobarometer"
survey of 17,000 citizens revealing that, in 2003, just 5% were
aware that illegal or harmful material could be reported to a
hotline, with just an additional 8% aware that it could be reported
direct to the Internet service provider.
68. The "Notice and Take Down"
system of self regulation can also have negative consequences
for the right to freedom of expression, as it encourages Internet
service providers to block access to material when notified by
a third party without carrying out any independent assessment
of whether the material is, indeed, in breach of the law. This
amounts to censorship without transparency, without accountability
and without any means of appeal or redress (except through the
courts).
69. It is possible that some form of co-regulation
will emerge as the preferred solution in many circumstances. Such
schemes combine the advantages of self-regulation with the trust,
accountability, effectiveness and concern for civil liberties
that comes with independent regulation. In such a scheme industry
players would regulate themselves under the supervision of a respected
independent regulatory authority, backed by statutory powers if
necessary. The role of the independent regulatory authority might
be to audit the regulatory procedures put in place by the industry,
to draw up codes and guidelines, to rule on complaints, and to
impose sanctions when required.
70. With regard to the more extreme material,
it is possible that stronger controls may be preferred. In its
response to the Home Office consultation on the possession of
extreme pornography, the BBFC proposed making material classified
by the BBFC exempt from prosecution under the proposed law, in
order to remove uncertainty over exactly what material might be
found to be illegal to possess in different parts of the UK (it
being left to individual juries to determine whether material
was indeed "extreme pornography" as defined). Such an
approach would encourage prior regulation of the most contentious
material and would have obvious advantages for Internet providers
of material which was intended for robust and broadminded adults
but which nevertheless came close to the limits of acceptability
in relation to the law. It is not without precedent in the EU:
in Sweden, an official classification protects the distributor
of a video or DVD from prosecution under the Penal Code for pornography
or violence.
71. Alternatively, where the new media is
merely delivering formerly regulated content by other means, independent
classification and content advice, modelled on the proven formula
of film and video/DVD classification, might be appropriate. Finland
have taken a lead in this regard, incorporating Internet "movies-on-demand"
within the same framework as that used for films delivered by
more traditional means.
72. Looking back at the history of media
regulation, it is clear that the precise form of the regulation
has been dictated by the nature of the medium and the mode of
delivery. With no spectrum limit on the number of providers of
content, and with private citizens able both to pay for and consume
the media content in private, the Internet poses a unique challenge
as the normal points of control in a public space simply do not
exist. There is no doubt that the new media provide great opportunities
for innovation, commerce, art, research, etc, but with those advantages
come disadvantages. These include easy access to material which
is illegal, harmful or otherwise unsuitable, including by children
and by disturbed adults who are likely to be affected in ways
which are contrary to the public good. As the uptake of broadband
grows rapidly, access to inappropriate content by children and
vulnerable adults is bound to increase. Proper regulation would
help to minimise the risks without compromising the real and substantial
benefits that the technology provides. Indeed, regulation which
enhances trust in the Internet as a safe place may act as an incentive
to consumers considering engaging in social, cultural, political
and commercial transactions online.
73. No one agency can provide a single,
ready-made solution, and the divergence of interests both among
industry players and between the industry and the public make
it unlikely that a satisfactory regulatory framework will emerge
without the coordinating hand of Government. Independent regulatory
authorities are also bound to play an important role if trusted
and effective regulation of new media is to be achieved. However,
in the interests of civil liberties, care will need to be taken
to avoid creating a single mega-regulator with too much control
extending over too many means of communication.
74. What is required is a coordinated and
systematic approach, drawing on the different areas of expertise
to be found in a number of regulators and other bodies, in which
the major new media industry players and the regulators come together
to devise a coherent set of solutions. Such an approach is unlikely
to develop unless it is driven by Government, the only agency
that has an overview across all aspects of new media, technology
and the public policy concerns that underlie all types of media
regulation.
75. The BBFC believes that its long experience
of regulating moving image content in a non-linear environment
and, in particular, its unique experience in regulating explicit,
hardcore pornography and other extreme material, gives it a skillset
that may be of significant use when considering a set of solutions
for regulating the new media. Should the committee decide to recommend
the establishment of a forum drawing together the key stakeholders
in an effort to find the best regulatory solutions, the BBFC would
very much like to be involved. The BBFC would also welcome any
other opportunities to provide further assistance to the committee
and to be involved in any future developments.
20 February 2006
|
