Select Committee on Culture, Media and Sport Minutes of Evidence

Memorandum from 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 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 and range of the media it regulates, and the fact that its regulation involves thorough pre-publication scrutiny of the material, sets it apart from Ofcom and from PEGI.

—  A diversity of regulation is an important guard against concerns relating to civil liberties (especially freedom of expression) but when diversity of regulation exists within a particular, well defined medium, as it does for video games, there are significant disbenefits.

—  The BBFC has accumulated unrivalled experience and expertise in the regulation of extreme video material, including "hardcore" pornography and violent or indecent material which poses a risk to the well being of children, vulnerable adults or society.

—  The BBFC has accumulated unrivalled experience and expertise in the regulation of video games, including (but not limited to) those which pose a risk to the well being of children by virtue of content featuring strong violence, criminal behaviour, or sexual activity.

—  The realism of video games has increased dramatically in recent years and the most violent games feature realistically gruesome killing, torturing and dismembering. They are converging with film rather than the reverse.

—  Because most are not "gamers", many parents still regard video games as "toys" and do not feel anywhere near as confident about controlling their children's access to violent video games as they do about controlling access to violent films and DVDs.

—  The presence of two different sets of classification symbols on video games does not help, although bit reflects the current legislation.

—  BBFC symbols reflect game playing context; have statutory force; enjoy very high levels of public recognition, respect and understanding; and are supported by clear content advice (rather than confusing and unhelpful "pictograms"); heavily used websites for children, students and parents; and the expertise of the BBFC's Advisory Panel for Children's Viewing.

—  Individual PEGI classification decisions are less reliable than BBFC ones because they derive from inferior methodology based on a self-assessment questionnaire. By contrast, every BBFC decision is based on extensive gameplay by independent BBFC examiners.

—  Unlike PEGI, the BBFC can reject a game (and therefore prevent its supply in the UK) if the risk of harm is unacceptable. This power gives the BBFC greater leverage to require changes in other games.

—  Unlike PEGI, the BBFC has wide public recognition as a credible and independent media content regulator. Very recent qualitative research has strongly re-inforced this finding.

—  It would not be in the best interests of children and parents for the UK to opt for PEGI as the single set of games symbols. Such a choice would be highly politically contentious. And would not enjoy public support.

—  If the BBFC symbols were adopted, the UK games industry would suffer no detriment in decision times, and would gain substantial benefits from increased public trust and confidence, and from the BBFC's strong websites and other media literacy activities.

—  Online video games raise new risks, such as quasi-addictive playing patterns and bullying by fellow players (especially online), for which industry-related self-regulation (as in the PEGI system) may not command sufficient public confidence.

—  The Internet is 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.

—  The Internet has created platforms for delivery of audio-visual content and video games which are not subject to any independent or statutory based regulation.

—  Media literacy has an important role to play in minimising risks to children.

—  Effective labelling and trusted content advice, such as that provided by the BBFC category symbols, Consumer Advice and Extended Classification Information, is vital in enabling parents and others to make informed choices with regard to children's access to video games and video material on the Internet.

—  The BBFC, in partnership with major content providers (including Disney, 20th Century Fox, Warner Bros and Sony) and online distribution channels (including Tesco, BT Vision and Entertainment UK) has developed a voluntary, opt-in system for the classification and regulation of material offered via download, streaming or set top box over the Internet.

—  Given clear public demand, mainstream UK providers of mainstream material on the Internet are likely to participate in effective co-regulation schemes such as BBFC.online.

—  Outside the mainstream, providers of some kinds of harmful material will not voluntarily submit to any form of regulation and, in such a situation, parents will struggle to exercise effective control over the material to which their children are exposed.

—  Adults seeking harmful material will not be prevented from accessing it by such voluntary schemes or by labelling requirements.

—  It is possible to define a set of material which is likely to cause significant harm to children, vulnerable adults or society. This would be highly focussed, and not a generic attempt to regulate the Internet.

—  Any attempt to regulate such material on the Internet would need to address jurisdictional issues, and would be likely to involve placing obligations on the Internet Service Providers and/or the financial services sector.

—  The experience of the BBFC in regulating a vast range of moving image content in a non-linear environment, and in developing the BBFC.online scheme, 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 is trialling a voluntary co-regulation scheme (BBFC.online) for video material supplied over the Internet by means of download or streaming, and for online games. 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 content 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 submission is being made 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 but draws heavily on the BBFC's submission to the Byron Review (which, in turn, developed issues raised in the BBFC's memorandum to the committee's enquiry on new media). The BBFC acknowledges and applauds the many benefits that flow from both the Internet and from a vibrant video game industry but leaves it to others to list and quantify them. The purpose of this submission is to offer the Committee the perspective, knowledge and expertise of a media regulator specialising in the moving image for whom issues of harm to children, vulnerable adults or society are of the utmost importance. Paragraphs 6 to 14 deal with the background issues relating to the current statutory regulation of media content; paragraphs 15 to 27 set out the current position of the BBFC; paragraphs 28 to 43 identify the particular areas of BBFC expertise; paragraphs 44 to 90 deal with the harms that may be caused to children, vulnerable adults or society through access to inappropriate video games; paragraphs 91 to 112 look at opportunities for preventing or minimising the risks of harm that may be caused to children, vulnerable adults or society through access to inappropriate video games; paragraphs 113 to 139 deal with the harms that may be caused to children vulnerable adults or society through access to inappropriate material on the Internet; and paragraphs 140 to 177 deal with opportunities for preventing or minimising the harms that may be caused to children, vulnerable adults or society through access to inappropriate material on the Internet.

  4.  It is important to note from the outset that, despite the overlap evident in the expanding field of "online gaming", the issues relating to regulation of "the Internet" and "video games start from rather different positions. Video games which are supplied by means of physical media (typically by means of a disc that is inserted into a games console) and which contain certain elements relating to sex, nudity, bodily functions, gross violence or crime are required by law to have a classification certificate from the BBFC. By contrast, most legal opinion suggests that supply of moving image material over the Internet is currently not covered by the various statutes governing the regulation of similar material in the mediums of film, DVD and television, however strong or unpalatable the content may be.

  5.  Any account of the ways in which the Internet allows access to media content, runs the risk of creating a sense that ground has already been lost and that the very possibility of regulation 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, vulnerable adults or society 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 Internet in particular should not be 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

  6.  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.)

  7.  The advent of domestic video recorders in the early 1980s led to widespread concern about the way in which the new technology enabled children, especially, 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".

  8.  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). The presence of linear (ie non-interactive) material may also cause a game to lose exemption. In addition to video games which lose exemption, the BBFC also classifies a large number of exempt games which are submitted to the BBFC by the publisher by choice. (Once classified the statutory restrictions on sales of age restricted games apply with full force).

  9.  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 (CFA), which makes it an offence to exhibit a work containing real animal cruelty orchestrated by the film maker; the Protection of Children Act 1978 (POCA), 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. It is likely that such UK legal issues will in future arise in relation to video games.

  10.  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. However it does not follow that a single form of content, such as video games, should be regulated by more than one regulator.

  11.  There is also a powerful case for applying a single regulatory approach to films, DVDs and games, given: the presence of linear (ie non-interactive) material in most games; the existence of film and game versions of many works; the convergence of films and games through increased game photo-realism; the existence of common classification issues such as violence; and the need to think through where interactivity does and does not make a difference.

  12.  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.

  13.  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.

  14.  Although many exempt video games are voluntarily submitted to the BBFC for classification, the majority of exempt games are currently awarded non-statutory age ratings under the PEGI system. Although this is a pre-publication system, it operates in way which is quite different from the approach of the BBFC. While the BBFC makes a determination by means of extensive gameplay by independent BBFC examiners, supplemented by viewing of "cutscenes" and other materials, a PEGI rating is generated primarily by means of an online questionnaire filled in by the developer or publisher of the game. Context is crucial to BBFC decisions, but is generally not taken into account under PEGI.

THE CURRENT POSITION

  15.  The BBFC is currently experiencing historically high 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 three years have also seen a dramatic rise in the number of submissions of video games, as games publishers responded to the widespread public concerns raised when the mother of 14-year-old murder victim Stefan Pakeerah linked the video game Manhunt to the brutal killing of her son (a link that is far from proven, and which was not accepted by the police). Overall, in 2007 the BBFC dealt with 15,276 individual submissions, compared with 5,266 submissions in 1997.

  16.  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. It currently takes an average of under 11 working days to classify a video work or video game once payment has been made. Fee reductions in 2002, 2003 and 2004 reduced the cost of classification by 30%. This reduction has only been marginally offset by a modest rise in fees at the start of 2007, necessary to fund the digitisation process that will secure the future of the archive of classified works we are obliged to maintain under the VRA.

  17.  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 three appeals with regard to video works since 2000. This low rate of appeal is despite the fact that, in 2007, over 8% of new films were given a higher category than that sought by the distributor, and over 27% of pornographic "R18" video works were subject to compulsory cuts (usually to material which is obscene, violent, abusive or non-consensual).

  18.  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.

  19.  More recently, BBFC research during 2007 has suggested that 89% of adults understand BBFC symbols (see para 29). High levels of public recognition and understanding of BBFC film and video/DVD regulation are also recorded by recent Ofcom research[134] 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[135] 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". Viewers clearly regard a properly regulated environment to be a safe environment and appear to have confidence in the regulation provided by the BBFC. Many mainstream distributors of download material already see BBFC classification and Consumer Advice as an important protection which also adds value.

  20.  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.

  21.  To that end, the BBFC has developed two dedicated educational websites (plus a website for parents—see paragraph 32). 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. The site receives up to 160,000 hits and 3,000 unique visitors each month. 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. During 2007, the popularity of the site continued to grow and it now receives up to 274,000 hits and 12,000 unique visitors 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. During 2007, this programme resulted in over 100 visits across the UK speaking to over 10,000 children, students, teachers and family groups from primary through to post-graduate and adult education level. We also hosted 12 in house seminars for over 250 students and teachers. 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.

  22.  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 2007 the BBFC provided Certificates of Evidence for use in court proceedings involving over 8,700 video works.

  23.  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 independent Video Appeals Committee (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.

  24.  More recently, the BBFC's decision to reject the video game Manhunt 2 was appealed to the VAC. The game has an unremitting bleakness and callousness of tone in an overall game context which constantly encourages visceral killing with exceptionally little alleviation or distancing. It is a game wholly devoted to stalking and killing human characters in a modern urban environment. In order to progress, the game player must kill almost every character encountered. Many of these killings are "sneak attacks" in which the character controlled by the game player hides in shadows until his victim's back is turned, then creeps up behind him and attacks with one of a large variety of weapons available to him. Killing in such a fashion maintains the character's health, whereas fighting face to face depletes the character's health and risks failure to complete the level. There is sustained and cumulative casual sadism in the way in which these killings are committed, and encouraged, in the game.

  25.  Of particular concern to the Board is the game's unrelenting focus on stalking and brutal slaying and the sheer lack of alternative pleasures on offer to the gamer. There is no significant objective other than killing and the only significant variety in the game play involves making use of the full range of weaponry, including: syringes, pens, shards of glass, knives, axes, saws, a bottle (both unbroken and broken), a mace, baseball bat with barbed wire, spades, pliers, plastic bags, garden shears, a circular saw, prod, night stick, hand drill, sickle, flare gun, hand gun, sniper rifle, Uzi machine gun, shotgun, toilet cistern lid, iron maiden, electric chair, meat hooks and an industrial compactor. Each weapon produces its own unique set of "kill images", encouraging players to seek out the most brutal and graphic kill possible.

  26.  Against this background, the Board's carefully considered view is that to issue a certificate to Manhunt 2 would involve a range of unjustifiable harm risks, to both adults and minors, within the terms of the Video Recordings Act, and accordingly that its availability, even if statutorily confined to adults, would be unacceptable to the public.

  27.  The VAC upheld the appeal but its written judgement suggested that its decision may have resulted from at least one serious misdirection in relation to the legal interpretation of "harm" in the VRA. The BBFC therefore sought and was granted Judicial Review. At a hearing on 24 January 2008, Mr Justice Mitting ruled in favour of the BBFC and ordered the VAC to reconsider its decision. The game will remain unclassified and therefore unavailable in the UK at least until the outcome of that reconsideration is known.

PARTICULAR AREAS OF EXPERTISE

  28.  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. Many video games receive both a PEGI rating and a BBFC rating (the latter taking precedence in the UK given its statutory nature). 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.

  29.  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. Early in 2007 the BBFC commissioned quantitative research from leading market researchers TNS.[136] Their poll of over 4,000 adults revealed that 89% understood BBFC ratings (those that didn't tended to be aged 55 and over and less likely to have children at home).

  30.  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 in 2006 was 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. One outcome was that the word "peril" was dropped from consumer advice formulations because the public found it archaic and unhelpful. 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. This view is supported by very recent research commissioned by the BBFC (Classifying Games: Qualitative Research Findings),[137] which is discussed in detail later in this submission (see paragraphs 61-65, 95-97, 105-106).

  31.  In 2007, the BBFC further developed and enhanced its provision of content information. Nearly all cinema films submitted for classification since 11 June 2007, and nearly all new video games submitted for classification since 1 August, now have "Extended Classification Information" (ECI) which is published on the main BBFC website (www.bbfc.co.uk). This is a simple explanation, in two or three short paragraphs, of why the work was classified as it was, and includes a straightforward description of the relevant material, and of other material likely to be of interest to a parent looking for guidance before allowing a child to view the work or, indeed, to persons looking for guidance with regard to their own viewing choices. With the introduction of ECI the BBFC now offers parents two tiers of advice alongside the statutory restriction on sales which come with BBFC age restrictive categories.

  32.  Detailed information for all video games (U to 18), and for films classified U to 12A, is also a key feature of Parents BBFC (www.pbbfc.co.uk), a new website launched in October 2007 and aimed at providing parents with all the information they need in order to make informed choices about the material they allow their children to view. Operating under the motto "Parents: you call the shots", this website offers the extra information provided by ECI under the title "Extended Consumer Advice" in a format specially designed to appeal to busy parents. In its first three months, Parents BBFC has achieved over 930,000 hits from over 9,600 unique visitors, purely on the basis of word of mouth and promotion on the BBFC's main website.

  33.  Such sources of extra information are particularly important with regard to video games: BBFC research (see paragraphs 52 to 55) has revealed a deep lack of confidence among parents with regard to controlling their children's access to games which are classified as unsuitable for their age group. This lack of confidence appears to stem from a lack of knowledge about what modern games actually contain: many parents still think of video games as children's toys and imagine that the content is merely an update of the simple (and anodyne) Space Invaders and Super Mario games of their own youth. This makes parents more susceptible to pleas such as "it's only a game" and "all my friends have it" than they are in relation to age restricted DVDs. In such an uncertain context, the BBFC's system offers clear and thorough guidance for parents from a source they know and trust. For example, a parent unsure of what to expect from the video game "Timeshift", will see the BBFC "18" symbol on the packaging, indicating that it is unsuitable for a child. Alongside the BBFC symbol on the back of the packing, the parent will also see the short BBFC Consumer Advice, in this case: "Contains strong bloody violence". If still unsure of its suitability for their own child, the parent can check the record on either the main BBFC website (www.bbfc.co.uk) or Parents BBFC (www.pbbfc.co.uk) which contain the following ECI /ECA for this particular game:

TIMESHIFT is a futuristic shoot-`em-up on the Xbox 360 in which the gaming action takes place in first person, as if from the player's point of view. Players are required to blast through the levels using a variety of high powered weapons as they attempt to save the world from a tyrannous neo-fascist regime. It was passed "18" for strong bloody violence.

The BBFC Guidelines at "15" state that "violence may be strong but may not dwell on the infliction of pain or injury". In TIMESHIFT however players are given the ability to inflict violent repeated injury on their victims, with blood splashing up on to the camera lens as they do so. Players can also blow enemies to bits with either exploding crossbow bolts or a rocket launcher or set them on fire with a flamethrower, and should they choose, do this in slow motion by using the games time suspend feature. This focus on violent injury was therefore considered too strong for "15" and better placed at the adult "18" category.

Additionally, TIMESHIFT features some mild bad language and mild female nudity when a woman sits naked on the edge of a bed with her back to camera.

  34.  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.

  35.   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.

  36.   Terrorists, Killers and Other Wackos Volume 1 [aka Terrorists, Killers & 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.

  37.  In both cases, the context as much as the detail was crucial to the decision to reject. The Board also took account of the appeal of such works to adolescents and teenagers seeking extreme viewing experiences.

  38.  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 2007, the BBFC classified over 1,150 video works "R18". 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.

  39.  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 2007 over 27% of "R18" features were subjected to compulsory cuts. It is abundantly clear to us that self-regulation does not work in such an area, and leaves serious abuses.

  40.  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.

  41.  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.

  42.  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.

  43.  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 Home Office made use of the BBFC's expertise in this area as it considered introducing a new offence relating to possession of extreme pornographic material (currently before Parliament in the Criminal Justice and Immigration Bill) and, in light of the concerns expressed by the BBFC and others, the Bill excludes video works classified by the BBFC from the scope of the offence. The BBFC's formal response to the Home Office consultation is available on our website and on request.

VIDEO GAMES: ACCESS TO HARMFUL OR INAPPROPRIATE MATERIAL

  44.  The VRA requires the Board, in making a determination in respect of a particular video game, to assess the game's "suitability for viewing in the home" and, in doing so to have "special regard ... to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with [...] criminal behaviour; [...] violent behaviour or incidents; horrific behaviour or incidents".

  45.  The VRA does not restrict the consideration of harm that may be caused to viewers to "behavioural" harm. Rather, section 4A requires the Board to have special regard to any harm that may be caused to potential viewers. In the Board's view this is an appropriate and necessary test in relation to violent video games, and one which does not feature in the voluntary PEGI system by which most exempt games are classified.

  46.  The Board believes that a video work may cause harm in a variety of ways, many of which are not "behavioural". A work, either on its own, or in combination with others of a similar nature (the "drip drip" effect), may cause harm to an individual, whether an adult or a child, by desensitising that person to the effects of violence, by degrading that person's sense of empathy, by encouraging a dehumanised view of others, by suppressing pro-social attitudes, by encouraging anti-social attitudes, by reinforcing unhealthy fantasies, or by eroding the sense of moral responsibility. Especially with regard to children, video works may retard social and moral development, distort an individual's sense of right and wrong, and limit their capacity for compassion.

  47.  The impossibility of proving "harm", including "moral" harm, was clear at the time the VRA was passed. The VRA addressed this problem by designating an authority to make a judgement based on the prescribed criteria. Consequently, the VRA does not require the BBFC to "prove" harm. Rather, it requires the BBFC to use its collective experience and expertise to make a judgment as to the suitability of a video game for use in the home and, in making that judgment, to have special regard to "... any harm that may be caused [...]" [my emphasis]. The Board makes such judgements in a manner which commands public confidence.

  48.  Concerns around harm may arise not just from the visual detail presented by a game but also from the context in which it occurs. Given equivalent visual detail, a game which encourages a sadistic mode of play is surely of greater concern than one that does not. Because BBFC examination of a game is based around extensive gameplay (rather than a PEGI-style self-assessment questionnaire), BBFC decisions take this fully into account.

  49.  Unlike the voluntary PEGI system, the VRA requires the Board to consider harm in relation to "potential viewers" including underage viewers. If persons under 18 are likely to play a violent video game, even if it is classified "18", the Board is not just entitled but obliged to consider the possible harmful effects that might arise from such viewing. Again, the Board submits that this is an appropriate and necessary test in relation to violent video games, especially given the relative lack of effective control of such games in many households.

  50.  At the extreme, if the risk of harm is too great, the BBFC can reject a game. If a game cannot claim exemption, and has been refused classification by the BBFC then supplying, or even offering to supply it, is a criminal offence punishable by an unlimited fine and imprisonment for up to two years. The BBFC has not been afraid to exercise the power to reject a game and has done so most recently in respect of Manhunt 2. By contrast, the PEGI system has no facility to reject a game, the most severe outcome being a legally unenforceable 18+ rating. This shortcoming of the PEGI system is causing some concern in mainland Europe and recent news reports suggest there is now a majority in the Dutch Parliament urging the Government to seek a power to ban extremely violent video games in the Netherlands.

  51.  In light of its statutory obligation to have special regard to any harm that may be caused to "potential viewers" (including underage viewers), the BBFC takes very seriously the possibility that violent video games may be played by children. A video game classified "18" is a very different proposition from a hardcore porn video classified "R18". Such a video game can be sold in any shop, not jut a licensed sex shop, and is likely to be kept in the home alongside other games (some with lower classifications) on display to, and within reach of, children.

  52.  Parental attitudes to video games also appear to differ from attitudes to "18" rated DVDs. The Board's own research (Video Games: Research to improve understanding of what players enjoy about video games, and to explain their preferences for particular games)[138] suggests that many parents are ignorant of the content of modern video games and have not yet fully taken on board the need to protect younger children from violent "18" rated games in the manner that they do for violent "18" rated DVDs or pornographic "R18" rated DVDs.

  53.  Any attempt to quantify definitively under-age use of games faces grave methodological difficulties. In particular it is likely to founder on the strong disincentive to publishers, retailers, parents and children to provide truthful responses. But there is strong anecdotal evidence that such games have been played by, and even bought for, young children.

  54.  To many parents "video games" are still essentially electronic toys and evoke memories of the original Space Invaders, Pong and Sonic the Hedgehog type games. Because many parents do not play video games they are unaware of the development of games such as Manhunt, The Punisher or 50 Cent: Bulletproof and are consequently less likely to monitor or control their children's access to age restricted games. The research commissioned by the Board concludes that:

"Many parents and gamers believe the classifications are not taken as seriously as those applied to films and DVD. They say they are widely ignored... Many gamers in the sample had played games classified as suitable only for significantly older children... and many parents had supplied inappropriate games" [page 103]

"Many [parents] are less familiar with the content of video games than with that of films and therefore have fewer/weaker convictions... when they are buying games, some are like illiterates in libraries and they focus on what their children say they want, ignoring content. Many parents feel more vulnerable to pressure from their children in relation to games than films because they are so much more ignorant about games" [page 104]

  55.  The research goes on to quote parents admitting buying specific "18" rated games for pre-teen children:

"We bought him GTA [Grand Theft Auto—game in which the player can sell drugs, have sex with prostitutes and kill policemen] when he was almost 10" [page 104]

"I didn't have clue what Grand Theft Auto was about... and I must admit I bought it for him (12-year-old)" [page 104]

  And quotes children discussing violent, age-inappropriate games, for example:

"The blood is necessary in GTA but in Manhunt I think it gets a bit too extreme... In Manhunt... holding him down as long as you can and then sawing his head off with a wire—that's a bit too much" [male gamer aged 14-15] [page 74]

  56.  In the view of the Board, the current two-tier regulation of video games, in which the majority are subject to non-statutory PEGI regulation and a minority to statutory BBFC regulation, contributes to the relative lack of parental control over children's access to violent computer games.

  57.  The very fact that video games are normally exempt from classification immediately suggests to parents that they are of less concern generally than are films or DVDs. Violent video games usually only require statutory classification if they contain "gross violence" towards humans or animals. This is a high threshold and means that many quite violent games claim exemption from classification. For example "Prince of Persia—Warriors Within" allows the gamer to carry out many bloody killings including decapitations complete with blood spurts (a short 2 minute 43 second video showing examples of the gameplay in this video game can be found on YouTube at http://www.youtube.com/watch?v=PHgGfsZN-5I ). "Tom Clancy's Rainbow Six Vegas", "Far Cry Instincts Predator", "Call of Duty 4 Modern Warfare" and "Red Dead Revolver" are further examples of violent video games which claim exemption. Another is "Just Cause" which includes a visit to a brothel alongside its bloody violence. Although these games all carry PEGI 16+ ratings, there are no legal restrictions whatsoever on their sale to children. The BBFC has no power to require such games to be submitted for statutory classification. The onus rests on the publisher and PEGI.

  58.  By way of contrast, DVDs containing equivalent scenes of violence require statutory classification by the BBFC. Should the classification be age restrictive, supplying the DVD to a person under the specified age is a criminal offence, punishable by a fine of up £5,000 and imprisonment for up to six months. The modern trend for games based on big film releases further exacerbates the situation. For example the DVDs Alien Vs Predator, Matrix Revolutions, Bad Boys II, Constantine, The Chronicles of Riddick and Nightwatch are all subject to statutory regulation under the VRA, carry a BBFC 15 rating, and legally cannot be sold to any child under the age of 15. The games based on those films all claim exemption from statutory classification, are rated 16+ by PEGI and can legally be sold to a child of any age. A parent contrasting the two situations can be forgiven for assuming that the state is giving them a very clear indication of the relative risks of harm associated with the two mediums and for concluding that society is less concerned about video games than it is about DVDs. The BBFC is not convinced that it is safe to assume that video games are inherently less harmful than DVDs.

  59.  The presence of competing category symbols on games sitting side by side on retailers shelves and in the home cannot help to give parents confidence in asserting control over their children's game playing choices. It can only serve to confuse the issue of suitability and a confused parent is surely less likely to exercise appropriate control. This problem is exacerbated by the confusion over what is actually being indicated by the PEGI symbols (3+, 7+, 12+, 16+ and 18+); many parents appear to believe that these symbols are ability ratings rather than suitability ratings and so purchase a 16+ game for a 10-year-old on the grounds that the child is really good at video games.

  60.  The games industry's own 2005 research study[139] suggested that public knowledge of the PEGI age ratings was very low especially with regard to the ratings below 18. For example only 9% could name the 16+ rating and only 2% the 7+ rating. Given such low recognition of its system it was not surprising that the researchers suggested that "PEGI has not been established as a brand".

  61.  The problems inherent in the PEGI system have been borne out in very recent research commissioned by the BBFC.[140] The small scale research consisted of four focus groups of parents (eight parents per group), split by class, gender, age of child, and location. The fieldwork was carried out on 8 and 9 January 2008. The groups were shown sample games in all BBFC and PEGI categories. Respondents were then split into pairs to discuss: the information they would use to evaluate the games, how would they reach decisions about child's ability to play game, how would they reach decisions about game suitability for child. After spontaneous reactions had been recorded, respondents were asked specifically about the two different sets of classification symbols, and the two different types of additional content advice (PEGI pictograms and BBFC consumer advice).

  62.  The responses revealed that, at present, the PEGI category symbols are understood as referring to suitability in its broadest sense. When probed, it was clear that many respondents were confused as to whether suitability was defined by content or player ability with many concluding that it was the latter. Only a minority of respondents understood the specific reference to content. The majority applied toys and clothing "age rules" to the system and interpreted the age reference quite literally—"a game that a child that age or above would be able to play".

  63.  Not surprisingly this had led to a number of respondents to make a disappointing games purchase; for example buying a game with a 3+ rating that proved to impossible for young children to either fully comprehend or to complete. Indeed a few parents in the groups were confused enough to boast about their child's gaming prowess, maintaining that he or she could play games for an older age group and that they were buying games for an "older" ability rating as a result.

  64.  By contrast, the BBFC classification system is unequivocally understood as referring to content. Respondents apply film classification "rules" to computer games and immediately grasp that the classification is referring to key issues such as violence, sexual references and language, often using BBFC consumer advice "language" to describe what they mean—mild, strong, gory violence etc. The BBFC system was thought to be familiar, accessible and quick to convey key information. Put simply, a number maintained that they did not have to work too hard or think too deeply to understand it. This is an important point given how consumers use classifications at point of purchase. It is very much a quick review, often working synergistically with game genre and pack imagery rather then a detailed analysis in store.

  65.  Seeing a variety of different game packs in the groups was often the point at which respondents recognised that there were two different systems operating within the games market. This often worked to PEGI's detriment and compounded the confusion around this system. Even respondents who had previously thought that PEGI was referring to content became less sure and questioned whether they had got it right. The fact that BBFC is seen to "own" content, led many to conclude that the PEGI system referred to ability by age, almost by default.

  66.  This confusion is not confined to children and parents but is shared by the UK's leading video games retailer, GAME, whose website contained the following information under the heading Questions About Products until the BBFC highlighted the error in its submission to the Byron Review. I have highlighted the key passage in bold.

"6.  Are some of your products age rated?


Any product with a BBFC (British Board of film Classification) rating will be clearly described as such on the product page for that item. For further information on BBFC ratings, see the Video Standards Council Website or the Ask About Games Website.


Additionally, we also display PEGI ratings. PEGI stands for Pan-European Games Information and is the new standard throughout Europe. PEGI age ratings are a guide and simply indicate what age you're likely to have to be to understand how to play the game (so a game like Civilisation for example, which is probably suitable content-wise for anyone, wouldn't be recommended for a 7-year-old simply because of the depth of the game) ".[141]

  If the UK's leading games retailer doesn't understand the meaning of a PEGI rating, what chance do parents have?

  67.  The Board accepts the unsatisfactory nature of the "media effects" research with regard to video games and "behavioural" harm, but we nevertheless believe that, in some cases, such harm may well be caused to a significant proportion of vulnerable viewers. The overall risk of a range of possible harms in relation to children and vulnerable adults is, we submit, real and substantial.

  68.  The Board does not suggest that all children or vulnerable adults are likely to be harmed, or that all forms of harm are likely to be behavioural. Its main concern is the effect of the game on those with aggressive personality types and low levels of empathy. The concern is that, particularly in children and vulnerable adults, aggressive and anti-social attitudes will be stimulated and reinforced, that desensitisation will occur with respect to real world violence, that a view of violence as acceptable will be encouraged, and that understanding of right and wrong will become distorted.

  69.  This concern takes into account the possible "drip drip effect" of playing not just one game but also a whole range of violent games over a long period of time. It also has regard to the certainty that many gamers spend many hours playing such games.

  70.  Ethical and practical considerations make it impossible accurately to research the extent or degree of harm that might be caused to an individual (especially with regard to children), still less the degree of harm that might be caused to society though the behaviour of viewers after viewing. Therefore policy decisions on the harm that violent video games may cause cannot safely be made purely or even primarily on the basis of the existing "media effects" research.

  71.  Of course, researchers have nevertheless tried to establish the nature and extent of any "media effects", including those that might be ascribed to video games, over many years. Some research attempts to demonstrate a causative link through experiments which involve exposing subjects to a violent video game under controlled conditions and assessing immediate changes in measures of aggression or attitude. Others have investigated possible correlations between real life game playing and real life crime or violence.

  72.  In the view of the Board, the body of research taken as a whole does not provide conclusive answers. Those studies which purport to demonstrate harmful effects are hotly disputed by researchers who challenge the methodological validity of the research. The only point on which researchers are agreed is that more research in this area is needed.

  73.  Of course, lack of conclusive evidence of harm is not the same as conclusive evidence of lack of harm. The VRA is based on the proposition that some video works (including some video games) are harmful and that in some cases the degree of harm will be sufficient to justify rejecting a work. The regulator must make a reasoned assessment of the risk of harm and then make a judgement as to whether that risk can be managed through the classification system or whether it is so great that the work must be refused a certificate. Many studies do suggest harm, and others suggest that the only rational conclusion is that the effects of violent video games are uncertain at present. A selection of relevant recent findings is recorded below.

  74.  Kevin Browne and Catherine Hamilton-Giachritsis of the University of Birmingham reviewed five meta-analytic reviews and one quasi-systematic review for the Lancet (Lancet 2005:365: 702-10) and found:

"There is consistent evidence that violent imagery in television, film and video, and computer games has substantial short term effects on arousal, thoughts, and emotions, increasing the likelihood of aggressive or fearful behaviour in younger children, especially in boys" [page 1]

They noted that:

"[...] other authors believe the evidence shows that violent video games are related to later aggressive behaviour and delinquency in older children and teenagers, especially in boys and young men and in those individuals who were characteristically aggressive" [page 3]

And went on to suggest that:

"Personality factors such as temperament also appear to have a mediating role, with some research suggesting that high-trait aggressive men are most affected" [page 4]

And cited evidence suggesting that:

"Notably, even those parents who monitor their child watching videos or DVDs are less likely to monitor the child using video and computer games" [page 6]

  75.  In work commissioned by the Department of Culture Media and Sport, Raymond Boyle and Matthew Hibberd of the Stirling Media Research Institute reviewed evidence of a link between playing violent video games and real world violence in young people. They concluded that the available evidence was contradictory, and that research on adults was sparse, but acknowledged:

"a body of evidence that playing violent video games increases arousal and the possibility of violence in some players" [page 4]

    They note research by Jeanne Funk exploring the impact of violent games on "high risk" players, ie those who have pre-existing adjustment problems (including bullies, victims, and children with emotional problems) and summarise her study as concluding that:

"some children may be especially vulnerable to exposure to violent video games" [page 28]

  76.  Also worth noting is the 2000 finding of the US Federal Trade Commission, as reported by Boyle and Hibberd, which found that:

"US video game companies routinely marketed to children the very products that had the industries' own parental warnings or ratings with age restrictions due to its violent content. Furthermore, for many of the products, the FTC found evidence of marketing and media plans which specifically targeted children under 17 ... Specifically, of the 118 games with a Mature (over 17) rating, the FTC selected 83 for its study and found that 60 were targeted to children under 17". [page 28]

  The Board notes the evidence of a culture of underage viewing in relation to video games, at least in the US.

  77.  Boyle and Hibberd conclude not that video games are harmless but that more research is required. In particular they suggest that the following proposition is tested:

"Are there combinations of types of games, types of personalities and situations which might have the potential to have adverse affects—in other words, are there types of games which might cause damage to certain types of (children and young) people in certain circumstances?" [page 35]

  In the view of the Board it is not safe to assume that the answer to this question is categorically "no".

  78.  In their recent, comprehensive review of Harm and Offence in Media Content, Andrea Millwood Hargrave and Sonia Livingstone cite US studies showing:

"a correlation between real life violent video game playing (eg Mortal Combat) and aggressive behaviour (eg threatening to hit/attacking someone/using force)" [page 135]

"those [schoolchildren] who played more violent video games were more hostile, reported getting into more arguments and fights, and were doing less well in school. The authors conclude that those who play more become more hostile in general and, therefore, more aggressive when faced with difficult situations" [page 137]

"Research on learning suggests active participation may be more influential than passive observation: ie game playing may be more harmful than television viewing because it involves attention, enactment, repetition, reinforcement ..." [page 139]

  79.  Dr Guy Cumberbatch of the Communications Research Group, in his report for the Video Standards Council ("Video Violence—Villain or Victim") is critical of the methodology employed by many studies but concedes that:

"There is no doubt that the majority of reviews of the research literature on media effects conclude that exposure to violence in movies, on television and in video games makes people more aggressive" [page 9]

    And concludes:

"the absence of convincing research evidence that media violence causes harm does not mean that we should necessarily then celebrate it and encourage more. There may be moral, aesthetic, philosophical, religious or humanistic grounds on which we might consider that excessive representations of violence are a matter of some public interest" [pages 35-36]

  80.  The Board's view is that it would be irresponsible to conclude that no video game, however violent, gruesome or sadistic, could possibly cause a magnitude of harm which would justify banning it from sale in the UK. Our considered view is that the research on video game effects, while far from conclusive, raises justifiable concerns about the effects of violent games on children and on adults with a pre-disposition to aggression.

  81.  The BBFC's own recent contribution to the debate was the research report Video Games: Research to improve understanding of what players enjoy about video games, and to explain their preferences for particular games (see paragraph 52). This research reports the view of gamer respondents that the process of interacting with the game has the effect of reminding them that they are, indeed, only playing a game. But this is not a conclusion of an empirical or scientific investigation of the issue of the effects of game playing. It is simple self-reporting by a small sample of gamers in what was essentially a modified focus group exercise designed to provide insight into the reasons gamers choose to play the games that they play, and the pleasures they get from them.

  82.  The issue of "interactivity" and the role it plays in relation to the experience and effect of playing a violent video game is clearly very complex, and won't be resolved through a single, small scale piece of research. Certainly, a number of gamers in the BBFC research describe a sense of emotional detachment as a result of the need to keep consciously interacting (ie keep working the controls) to prevent the game from stopping. But others describe interactivity as creating a deep sense of involvement which surpasses that achieved by film or book (see pages 54-56). In particular, one games reviewer describes her experience of playing the game Shadow of the Colossus:

"There is a point at the end of the game [...] where [...] the horse is killed in a rock fall. It's just devastating [...] the impact it has on you. This has been your only friend and companion who has helped you and protected you [...] nothing else can do that. There are countless extraordinary books that are extraordinarily moving, but they can't do that. Films and books can't make you lose anything. You can read about someone else's loss, you can empathise in a book, but a book can't ever take anything from you. But that game took my horse. He was my horse. He was my friend by that stage" [page 55]

  83.  The research confirms the Board's view that there is significant public concern about the possible harmful effects of violent video games. Although most gamers reject the simplistic view that playing games makes a person violent, others cite specific personal experiences of increased aggression resulting from game playing:

"I would say that your emotional mood definitely changes when you play a violent game. If you're not winning you can get quite aggressive" (male gamer aged 26-30) [page 78]

"I don't like (violent games) because my brother plays them and it makes him really aggressive" (female gamer aged 12-13) [page 78]

"When you are playing one of those (violent) games you're so controlled that you think it's like real ... when I stop playing it it's all weird and you feel like punching someone" (female gamer aged 12-13) [page 78]

    This concern is shared by some industry professionals:

"One of the things I find very difficult is ... the level of violence that is now commonplace. The depravity of it and the unflinching enthusiasm with which it's displayed, consistently, astonishes me ... There're an awful lot of people whose taste in games means their number one hobby is pretending to be a murderer. They go home at night at spend four hours pretending to kill people. The stories provide you with endless rationales about why it's alright to be killing people ... We don't talk, as an industry, about why that is, why people enjoy it [pretending to kill] so much, and if it's a problem that they do enjoy it so much" (games reviewer) [page 80]

    And the researchers note that:

"Degree of concern about violence appears to be affected by a number of factors—how gory and realistic it looks ... the degree of detail depicted in close up, and how it is related to game play, especially the extent to which it seems to be a focus of attention in itself as opposed to a means of progressing towards a larger objective in the game" [page 74]

  84.  Some of the key elements noted by the researchers can only properly be taken into account by a regulatory process, like that of the BBFC, which places extensive gameplay at the heart of its process of determination.

  85.  The Board submits that research evidence of harm in relation to violent video games, or in relation to a particular violent video game, is, for very good reasons, likely to remain inconclusive. In such circumstances it is necessary to rely on common sense and professional judgement. There may be a limit to conclusive knowledge but that should not stop us using our knowledge of children and human nature and coming to the conclusion that such material may, in certain circumstances, cause harm, or pose unacceptable risks of harm.

  86.  Such concerns are, if anything, amplified by the increasing use of the Internet in relation to 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.

  87.  Games played on modern consoles, with Internet connections, also commonly allow the player to play against another player online. Gamers can play against a complete stranger, based anywhere in the world, with whom, in many cases, they can communicate in real time through a microphone and headphones or through a keyboard producing onscreen text messages. It is not uncommon for gamers to be exposed to racial, homophobic, or other forms of verbal abuse, or to experience a form of cyberbullying in which other gamers gang up to prevent a gamer progressing in the game. Recent BBFC evidence, as yet unpublished (but available to the Committee on request) suggests that many parents of gamers are unaware of this aspect of modern video games.

  88.  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 (1 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.

  89.  Even more significantly, whole games are being offered for supply via download as an alternative to the traditional method of supplying a disc. The download supply is not caught by the VRA and therefore escapes regulation in cyberspace, even if it would require classification in the "physical" world. There are clear advantages to supplying games via download ("bugs" can be fixed, updates and extra levels offered, disc production costs saved) and this is likely to become a significant method of distribution to home games consoles in the future. Without a change in the law, such supply will remain outside statutory regulation but there is no reason why a mainstream industry, with a desire to act responsibly, could not be encouraged to ensure that games offered in this manner are classified in the same manner as games supplied on a disc. The options for presenting the public with a single set of symbols for games (see paragraphs 100 to 110) could both be made to work in relation to downloaded version of games (but without the criminal law sanctions). Download game services also sit neatly within the range of services that the BBFC.online scheme has been designed to regulate (see paragraphs 151 to 160).

  90.  A number of games (or commonly, "virtual worlds") exist wholly within cyberspace (eg World of Warcraft) and are constantly evolving and developing. The experience of participating in such words is highly dependant on the actions of other gamers, of whom there may be millions. Some of these games are structured in a way that places significant limits on what the player can do but others, like Second Life, have a very loose structure which allows the players to develop the "world" and to interact with others within it according to their own preferences. Forms of bullying and other types of anti-social behaviour have been exhibited in such worlds and the games deal with such harms in a variety of different ways. Options include restricting access to a particular age group (eg adults only), or monitoring the gameplay like cyber police and taking action against anti-social gamers.

VIDEO GAMES: OPPORTUNITIES FOR PREVENTING OR MINIMISING RISKS OF HARM

Improving Media Literacy

  91.  Because video games are a relatively recent development, and because they appeal primarily to the young, the traditional parent-child knowledge and competency relationship is reversed: when it come to video games, children are skilled practitioners familiar with a wide range of content, while parents are blissful innocents largely unaware of the bloody carnage around them.

  92.  As a parent, familiarising oneself with the content of a video game to ensure that it is suitable for a child is not as simple as pre-viewing a DVD. Many parents simply cannot progress far enough in a game to gain access to the key elements and, even if they have the game playing competence, few parents have the time to play through a complex modern game (which can contain 40 hours of gameplay).

  93.  If they are to exercise effective control over their children's viewing, most parents must therefore rely on the classification system and on independent content advice which gives them the information they need. If parents are to make effective use of information, it must be presented to them in a form they readily understand and trust. The BBFC's symbols are almost universally recognised and understood, especially among current parents of school age children, not least because of the familiarity built up over many years in respect to film, video and DVD classification (see paragraphs 19 and 29). Above all, they are recognised as an indication of suitability (and are not misunderstood as an ability rating).

  94.  BBFC classifications are accompanied by a line of "Consumer Advice" which appears on the back of the packaging, alongside the symbol. This gives, in simple English, a brief indication of the content of the particular game, for example "Contains strong, bloody violence". Each piece of Consumer Advice is written especially for the particular game by an examiner who has played the game. We believe that a short sentence is the clearest and most flexible way of communicating this type of information and our basic terminology has been refined through both use and research. The beauty of language is that it can communicate subtle differences, such as the difference between a game which features "moderate fantasy violence" and one that features "strong bloody violence". The Board understands that the PEGI system must use "pictograms" in order to communicate across all the languages barriers of Europe but the drawbacks in terms of effective communication are obvious.

  95.  Because BBFC symbols and Consumer Advice appear on the packaging, and are familiar (not least through their use on films and DVDs) there is no lack of awareness and understanding. The Board does not believe that the same can be said for the PEGI symbols and pictograms. The research referred to in paragraphs 61 to 65 confirmed this view.

  96.  PEGI pictograms were generally disliked. Firstly, the concept of pictograms was felt to be too simplistic and very much at odds with parents' need for more detailed information. The references, when understood, led to more questions than answers. Violence—what type of violence? Prolonged/sustained? Fantasy or gory? and so on. The pictogram designs compounded this problem and were often ridiculed in the groups. Violence, drugs and bad language were more or less understood, but the pictograms for horror, sex and racial discrimination were often misinterpreted with many being very wide of the mark; eg claustrophobia or multi—player (racial discrimination), contains spiders (for horror) and a game for boys and girls (for sex).

  97.  By contrast, the BBFC consumer advice was described as being "spot on". Respondents preferred the more detailed approach, using clear and accessible language. The familiar style, reminiscent of film and DVD consumer advice, also worked well and the benefits of this were two fold; it reinforced the content message and added credibility to the overall communication and branding.

  98.  The BBFC recognises that for many parents, the "headline" offered by the symbol and the Consumer Advice is insufficient and so provides, for all new video games, detailed content advice (Extended Classification Information/Extended Consumer Advice) which it publishes on its main website and on its dedicated "media literacy" website, Parents BBFC (see paragraph 32). The BBFC provides this information as part of its holistic approach to protecting children from harm and funds its well set out media literacy websites for children (cBBFC) and students/teachers (sBBFC) from the fees it charges for classifying works. The reach of these initiatives, and their contribution to helping parents make informed choices on behalf of their children, could be greatly increased with the sort of funding that is beyond the means of a cost-conscious media regulator.

  99.  Above all, if parents are to play an active part in ensuring that their children are not playing age inappropriate video games, there must be a significant increase in public awareness of the graphic and bloodily violent nature of many modern video games, of their increasing photo-realism, and of the concerns that such games may not be entirely harmless or healthy, especially for younger children. They must also be made aware of the fact that many games consoles and many video game discs are designed to allow the gamer to play against, and communicate with, unknown people online. The very fact of this enquiry is an indication that video games are beginning to become a live issue for many people and such concerns are not limited to the UK.

A Single Set of Classification Symbols

  100.  As noted earlier, the presence of two, competing classification systems for video games in the UK can be seen as a contributory factor to some of the problems identified. The BBFC note that the two systems have achieved a working relationship and method of operation which at least ensures that the most violent games receive a statutory classification (by agreement, all games which receive a PEGI 18+ rating are automatically submitted to the BBFC for consideration under the VRA, even if they could, arguably, claim exemption). It is possible to argue that the status quo, while imperfect, is not actually broken and does not require fixing.

  101.  On the other hand, it is also clearly possible to argue that the removal of the confusion caused by having two sets of symbols for games (one statutory, one non-statutory) would be a significant contribution to helping parents take control of their children's exposure to unsuitable games. This was certainly the conclusion of the BBFC commissioned research referred to in paragraphs 61-65, 95-97 and 105-106. Respondents were clear that there should be only one classification system for games and that having two was misleading. (The more cynical felt that the games' industry was deliberately playing to parents' confusion in order to sell more games.) All recognised that clarifying the classification system would without doubt be helpful. In the view of the BBFC, two main options flow from such a conclusion.

  102.  The first option would be to ensure that the BBFC is taken out of the equation and have all games classified under the PEGI system. This would have the advantage of placing the UK's regulation of games on the same basis as most of the rest of the EU (the largest EU member, Germany, is not part of the PEGI scheme). As PEGI has no facility to reject a game it would also mean that any game, however violent or potentially harmful, could legally be sold in the UK. Moreover, because PEGI ratings have no legal force, even the most violent game with the highest PEGI rating could legally be sold to a child of any age. Ratings would primarily be determined by a self assessment questionnaire rather than by extensive gameplay by independent professionals. Parents would have just one set of symbols to deal with for games but would need substantial and ongoing education as to the meaning of those symbols (which are commonly mistaken for "ability" ratings) and the accompanying pictograms (which, even if understood, would still fail to convey the strength or nature of the issue being identified). Parents would lose the clear Consumer Advice and Extended Classification Information provided by the BBFC for games, but would still face competing sets of symbols when judging the suitability of a PEGI rated video game against the suitability of the BBFC rated DVD on which the game is based.

  103.  The research referred to in paragraphs 61-65, 95-97 and 105-107 also suggested that this option would have to overcome a wider credibility issue with regard to PEGI. The researchers concluded that there is no awareness of PEGI as an organisation. When this was probed in the groups, respondents felt that the organisation lacked the heritage of the BBFC and was thought to be a "newcomer". More cynical respondents questioned its impartiality and wondered whether the organisation was being funded by the computer game industry. Again, this contrasted with the BBFC which was perceived to have a visible, trusted and authoritative status.

  104.  The second option would be to place video games on exactly the same footing as DVDs. This could be done by simply repealing section 2 (1) (c) of the VRA (the section which provides a general exemption from classification for video games). If this section was repealed, an individual game could still claim exemption but only on the same grounds as a DVD, ie if it was designed to "inform, educate or instruct", or if it was "concerned with sport, religion or music". Sports video games and karaoke games, for example, could therefore be sold without any classification provided they did not lose exemption through the depiction of "gross violence", "human sexual activity", etc. This option would mean that all classified video games would be rated on the basis of extensive gameplay by independent professionals, that they would carry the BBFC symbols and Consumer Advice recognised and understood by nearly all parents in the UK (and would have Extended Classification Information/ Extended Consumer Advice available on BBFC websites), that potentially harmful games could be banned from sale in the UK, that games with an age restricted classification could not legally be sold to persons under that age, and that there would be no confusion between ratings for DVD films and for games based on those films.

  105.  This second option would have public support, according to the qualitative research referred to above. Moving forward with the BBFC requires little or no further investment in public awareness or understanding. The framework for games classification communication is already in place; BBFC ratings are known to be about content and the brand has heritage and credibility. The consumer advice system is working well and the idea of the BBFC classifying websites or on line games was met with universal interest and approval.

  106.  When research respondents were asked which system they would adopt if they were responsible for the decision every group reached the same conclusion—that the BBFC system effectively communicated classification by content and did so in a straightforward, accessible and familiar way.

  107.  The BBFC has reason to believe that some in the video game industry would also welcome wholesale BBFC classification, not least because the lack of contextual consideration in the PEGI process can result in anomalous decisions (including what many perceive to be the over-classification of the mildest fantasy violence). No doubt others would object but protests on grounds of delay would be unfounded: turnaround times for BBFC classifications are comparable to those achieved by PEGI. In terms of cost, the fact that a BBFC classification is derived from extensive gameplay by independent examiners rather than a self-assessment questionnaire is reflected in higher fees than are charged by PEGI. The actual fee depends upon the complexity and scale of the game but for a large game is commonly £2,100, a small sum when set against the costs of developing, manufacturing, distributing and marketing a multi million pound product which typically retails at two or three times the cost of a DVD.

  108.  In June 2007, PEGI launched PEGI Online in an attempt to provide a framework for encouraging safe gameplay online, and information for parents on the risks and possibilities of online gaming. It is too early to gauge the success of the PEGI Online scheme in meeting its objectives. The BBFC is also in discussion with major online gaming companies who would like to see BBFC classifications as the cornerstone of their child protection measures in relation to all forms of online gaming and the BBFC.online scheme described in detail in paragraphs 151 to 160 is in part designed to provide a means of carrying over into the world of online gaming the benefits associated with the recognition, trust and understanding that have been built into the BBFC brand over many years in the UK. BBFC.online will enable the presentation of a single set of classification symbols across films, DVDs, video game discs and online games with obvious and significant benefits for parents.

  109.  PEGI online already recognises BBFC and (German) USK ratings (but not those of the US games regulator, ESRB) and it is worth noting that, at present, some online games sold in the UK carry PEGI online ratings, some carry BBFC ratings, and some are unrated. If it was decided to remove confusion through the use of BBFC symbols only, the UK Government could, in the short term, make clear that it expects all online games sold in the UK to carry BBFC ratings. If that did not produce a satisfactory result, the UK Government could legislate to require all online games sold in the UK to carry BBFC ratings.

  110.  The UK would not be alone in the EU in concluding that the protection of children in relation to games (including online games) was best served by a national regulator rather than a pan-European system. This is already the position in German, the largest EU state. It is also significant that the market for games is much higher in the UK than in other EU countries (the UK accounts for at least 30% of retail sales of video games in the EU) so the need for effective regulation is perhaps more pressing. Given the power of online games, the relatively low levels of parental understanding, the heightened possibility of unduly lengthy playing sessions, and the risks posed by upgrades, user-generated content and, above all, inter-gamer bullying or other abuse, it is not sufficient just to leave them to be supervised by technological tools, notification procedures and pure self regulation by games publishers. And it is not safe simply to rely on PEGI Online in the UK, given: its currently limited coverage; its novelty and fragility; the increased risks to gamers and parents posed by online play; and the current uncertainties about how PEGI online is dealing with upgrades and inter-player abuse.

Parental Controls

  111.  It should be noted that a number of games consoles are fitted with "parental control" systems which allow a parent to bar access to games whose classification (whether PEGI or BBFC) indicates a lack of suitability for their age group. Indeed the BBFC entered into a no-fee licensing agreement with Microsoft to allow its symbols to be used on the Xbox 360 console. The BBFC applauds such facilities but doubts that they are actually used by many parents. As we have noted earlier, the child is far more likely to be the master of the games console technology than the parent (just as, in the 1980s, it was common for the 12-year-old to be the only household member who could set the timer on the video). 2005 research by Ofcom into the efficacy of PIN protection systems with regard to TV broadcast services ("Research into the Effectiveness of PIN Protection Systems in the UK :A report of the key findings of research among schoolchildren aged 11-17, and a separate study of parents") summarises its findings as follows:

"The research among secondary school children revealed that, of those minors who were aware that their household employed security PINs to limit access to rated programmes, around a half knew their parents'/guardian's number" [page 6]

  112.  Clearly there is a limit to the extent to which tighter controls on content can or should be used as a substitute for parental responsibility. If technological controls are to become a key part of the child protection strategy in relation to video games then the awareness and competence of parents in relation to that technology needs to be substantially increased. Much of the necessary effort needs to come from the industry. But, to the extent that the regulator can also play a part, the BBFC is better equipped than PEGI to provide the necessary educative material through its websites.

THE INTERNET: ACCESS TO HARMFUL OR INAPPROPRIATE MATERIAL

  113.  Media regulation in the UK is governed by legislation that is medium specific and there is currently no statutory regulation of the Internet. Control of harmful material on the Internet in relation to children is therefore currently left to the criminal law (especially the Protection of Children Act 1978, which outlaws indecent images of children; and the Obscene Publications Act, which outlaws material which would "deprave and corrupt"), voluntary self regulation, and the vigilance of parents. Given the scale of the Internet, its operation across international borders, the narrow range of material caught by the criminal law, and a relative lack of media literacy, the potential for harmful material to be accessed by children and vulnerable adults is very substantial indeed.

  114.  The fact that Internet video content can be accessed by means of many modern mobile phones, a common personal possession for the modern child, and one that can be used out of reach of parental supervision, amplifies concerns about such content. If videos showing extreme violence or pornography is harmful to children, and we believe it is, then ever increasing numbers of children are likely to come into contact with it as the means of accessing the Internet without parental supervision multiply. Today's parents remember childhood experiences of viewing Chitty Chitty Bang Bang, today's children may well be watching Shitty Shitty Bang Bang, a hardcore US porn work which, according to its publicity material, features "deep sloppy blowjobs, anal pumps, remorseless ass pounding action and double penetrations". Today's parents associate "Off with his head" with the Queen of Hearts in Alice's Adventure's in Wonderland, today's children may well be watching real footage of hostages in Iraq being decapitated.

Pornography and Extreme Reality Videos

  115.  Unregulated pornography is widely available on the Internet and can often be accessed without any warning, payment or age verification. The range of sites is simply vast, with a number mimicking the style of sites popular with children, especially You Tube. For example hardcoreporntube.com and www.yourporntube both over large numbers of free, short, explicit, unregulated pornographic sex videos without even the pretence of an attempt to prevent access by under 18s. Many pornographers also make use of "pop up" technology and junk mail to impose explicit images on Internet users who are not actively searching for them, displaying a wanton disregard for the fact that many of their unsuspecting victims will be children.

  116.  The sex industry, which often leads in finding profitable business models in new media, is already offering a vast range of video on demand (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 such material is likely to risk harm to children both through direct exposure and through the behaviour of others who have viewed it. Much of this harmful pornography is unlikely to fall foul of the OPA given the very high threshold set by the "deprave and corrupt" test.

  117.  A BBFC consultation[142] supports the view that "abusive" pornography, even though unlikely to contravene either the Protection of Children Act or the Obscene Publications Act, is likely to encourage abusive behaviour among those viewers with a predisposition to sexually aggressive or sexually abusive behaviour. Nine experts were asked to watch a DVD made up of clips from works submitted for "R18" classification. The five male and four female panel members included forensic psychiatrists, forensic psychologists, criminal defence barristers and sociologists. Of these, three had an expertise in pornography or sexual behaviour, four had taken part in a previous BBFC study into visual and verbal references to children in "R18" pornography and three were regularly consulted by the BBFC on individual works. The respondents viewed a selection of material submitted to the BBFC for classification at "R18" where performers who have consented to both sex and filming are subjected to very rough, violent or abusive treatment during sex which exceeds what could be described as "rough housing". This included repeated, forceful slapping; choking during fellatio with breath restriction; choking at the neck; standing on the head during penetration; and strong verbal abuse and humiliation. Some clips raised concerns for virtually all viewers, including, in some cases, "normal" "well adjusted" viewers, but particular concern was expressed over the impact of many of the clips on underage viewers (respondents were asked to consider, in particular, 16-17-year-old viewers) and on those with pre-disposition to aggressive or illegal sexual behaviour.

  118.  Parliament is currently considering a bill (The Criminal Justice and Immigration Bill) which will make unlawful possession of certain types of extreme pornography. The proposal recognises the unique expertise of the BBFC in this area and excludes material classified by the BBFC from the offence. It should be noted however, that the material outlawed in this legislation is very tightly defined and, like the OPA, would not capture the majority of the pornographic representations which the BBFC, and the experts it has consulted, have identified as being harmful.

  119.  Given the prevalence of the content and the lack of regulation, it is not surprising that many children have been exposed to pornography online. In their recent and comprehensive review of Harm and Offence in Media Content, Millwood Hargrave and Livingstone cite a number of UK and European studies indicating the scale of exposure. Among the findings of the various studies was:

—  57% of 9-19 years olds had come into contact with pornography online, mostly unintentionally through pop-ups (38%) or junk mail (25%).

—  5% of 8-11-year-old have accessed porn sites often, 22% sometimes.

—  20% of 13-16-year-olds have accidentally ended up on a porn site.

  120.  The issue of harm that might arise from the exposure of children to "hardcore" sex works has been considered at length by the independent Video Appeals Committee (VAC). As noted during several appeals, ethical considerations make it difficult if not impossible to accurately research the extent or degree of harm that might be caused to an individual child from underage viewing of pornographic works. The problem arises from the fact that no research could be considered authoritative unless it involved the controlled exposure of children to "hardcore" sex material, a methodology no responsible researcher would employ. This difficulty has been widely acknowledged and explains the lack of empirical research studies which might establish causal links.

  121.  Given the severe ethical constraints on research in this area, the absence of empirical evidence of harm provides no reassurance that children would not, in reality, be harmed through exposure to "hardcore" material. Lack of evidence of harm is not the same as evidence of lack of harm. In the absence of authoritative scientific data the BBFC takes the prudently cautious view that it is likely that such works may be harmful to children, vulnerable adults and society. The view that children need special protection from this material is shared by others who have had cause to consider the issue from a regulatory or professional point of view.

  122.  The Ofcom Broadcasting Code includes an absolute prohibition on "BBFC R18-rated films or their equivalent" being broadcast on UK television [Ofcom Broadcasting Code, section 1.25, page 15]. In doing so, the television regulator has cited the need to protect children from exposure to this type of material and has taken the view that the protection offered by subscription, credit card payments, PIN code protected access in the home and scheduling between certain specified (night-time) hours, is currently insufficient to adequately protect under 18s.

  123.  In its consideration of the issues in Appeals 15 & 16, the VAC noted:

"R18 material is on sale only in sex shops to adults; sex shops are subject to the control of the local authority and [...] the local authority would not hesitate to close the shop if videos were sold to under 18s. Because the material is for the purpose of stimulating sex it is axiomatic that the material is unsuitable for children" [p25-26]

  124.  In its decision on Appeals 15 &16 the VAC was unequivocal:

"It is the view of us all that R18 material in the hands of children—and perhaps also the maladjusted—can be harmful" [p28]

    and went on to note:

"Parliament established sex shops to make available material that was not suitable for children. As recently as 1994, when videos were already almost universally available to children, legislation was enacted which assumed it would be possible for children to be adequately protected by the restrictiveness with which such material would be available" [p29]

  125.  The importance of the special restrictions of an R18 classification in preventing harm to children were also underlined in the concluding remarks of the majority decision in those appeals:

"The majority believe that all the video works and the trailer under appeal are suitable for sale uncut solely to adults in sex shops, and that the risk of any so sold being viewed by and causing harm to children or young persons is, on present evidence, insignificant but we do emphasise that the sale is limited to adults who visit sex shops" [p31]

  126.  The utility of the special restrictions on the supply of pornographic R18 DVDs is supported by the Interfact/Pabo High Court judgement of 23 May 2005 which confirmed that R18 works could not be sold by mail order:

"In our judgement, the requirement that the event of supply is to be confined to a licensed sex shop gives heightened protection, reducing the opportunity for the material to be viewed by children". [paragraph 20]

  127.  As recently as 2000, the Home Office "Consultation Paper on the Regulation of R18 Videos" clearly set out the Government's view with regard to the potential harm that might be caused by such material:

"... there is widespread public concern about the possibility of children viewing sexually explicit material which is clearly unsuitable for them and the Government takes the common sense view that exposure to such material at an early age may be harmful to children. There is, therefore, a need to ensure that controls on the distribution and viewing of these videos is as stringent as possible". [Risk Assessment section, p14]

  128.  Although ethical considerations effectively rule out empirical research, the BBFC has nevertheless attempted to establish the state of expert opinion in this area. In August 2000 the Board published the results of a research study commissioned to address the question "Are `experts' in a position to say that children are harmed if they view `R18' videos?". The study was based on 28 in depth interviews and one group discussion. The interview sample comprised: 10 child psychiatrists (including three Professors), nine clinical psychologists, three family or child psychotherapists, four social workers, two head teachers, one special needs teacher and one paediatrician. The group discussion comprised eight people: four psychologists and four social workers. The experts acknowledged that there was no reliable scientific evidence available to resolve the issue and believed ethical problems would make it impossible to conduct an authoritative study.

  129.  Despite the lack of scientific evidence, a majority thought that viewing pornography was harmful to children. The majority argued that children were shocked by it. They were unable to deal with the shock because they did not understand what they had seen; they were unable to "process" it, or relate it to what they already knew. Moreover, they might well have a strong sense that they should not have seen it, and this would inhibit them from talking about it. What they had seen would make a strong impression on them emotionally, but they would not know how to express or deal with these emotions. If the pornography excited them, they would not be able to find an acceptable outlet for their feelings. [see "summary of main findings", p4]

  130.  The sort of harm envisaged fell into three overlapping categories: the immediate shock and trauma; sexualisation and possible re-enactment; and broader effects to do with perceptions of sexuality and relationships. The symptoms of trauma might include sleeplessness, bad dreams, eating disorders, bed wetting and general unhappiness. Many respondents believed that inappropriate sexualisation, manifested by re-enactment or mimicking of sexual relations, regularly resulted when children had been exposed to pornography. Some children would be emotionally or physically aroused and would try and give their feelings some expression. Evidence of precocious sexualisation was a source of immediate and grave concern in schools because it typically involved other pupils. Pornography was also believed capable of having pernicious effects on children's ability to form caring, loving relationships later in life. It was thought likely to convey distorted and unhelpful notions of how sexual relations were negotiated and conducted. [see "summary of main findings", p5-6]

  131.  Given such widespread consensus that, despite a lack of empirical evidence, hardcore pornography is likely to harm children who view it, it is perhaps surprising that, while DVDs containing the material can only be supplied to adults who visit in person a specially licensed sex shop (and cannot be broadcast even on encrypted adult TV channels), the same material (and much, much worse) can be supplied via streaming or download on the Internet to anyone, including a child, who can click a computer mouse. Given the evidence that very significant numbers of children are indeed accessing or being exposed to pornography online, the lack of effective regulation in this area becomes very difficult to defend especially when, as we will show in paragraphs 161 to 173, there are ways of defining and controlling such material—given the will.

  132.  Like pornography, gruesome, extreme reality footage is also easily accessible to children on line, with a number of easily found, simple YouTube-style sites offering footage of real hostage beheadings, executions, beatings, and bomb blasts with no attempts to limit access by children. Examples can be found at www.bigducky.com. These sites offer the most shocking footage in the same manner as the video work Terrorists Killers & Other Wackos described at paragraph 36. There is no thesis, no attempt to understand or to empathise, no contextualisation, no justification at all other than the most ghoulish form of "entertainment"—a modern day equivalent of a public execution. Many such sites have hyperlinks to, and adverts for, 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.

  133.  Like pornography, such material does not lend itself to the sort of research that would prove harmful effects on vulnerable adults or society, let alone on children, but the BBFC is in no doubt that such material has a shock value appeal to adolescents and teenagers which makes it likely that many will come into contact with it. In the view of the BBFC, viewing such material "for fun" and in the absence of any ameliorating context (such as might be provided by a considered documentary) is likely to cause harm to a child or vulnerable adult by desensitising that person to the effects of violence, by degrading that person's sense of empathy, by encouraging a dehumanised view of others, by suppressing pro-social attitudes, by encouraging anti-social attitudes, by re-inforcing unhealthy fantasies, by eroding the sense of moral responsibility, by retarding social and moral development, by distorting an individual's sense of right and wrong, and by limiting their capacity for compassion.

Mainstream video material

  134.  Away from the very extremes, mainstream Internet video on demand (VOD) services allow video material which is subject to statutory regulation by means of BBFC classification when released on DVD, to be sold without any classification and without any age restrictions via streaming and download over the Internet. This applies not only to material passed "U" or "PG" for DVD release but also to "18" rated horror films such as "Hostel" and "Saw". Selling a DVD of "Hostel" to a 10-year-old child is, quite rightly, a serious criminal offence under the VRA; selling a download of the same film to the same child is not.

  135.  Long heralded as the new media application that would kill video tape and DVD, this form of delivery is set to take off as major content providers begin licensing premium content for distribution in this way. 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. In the long term, it is possible that VOD might replace DVD altogether.

  136.  Internet based VOD services are not 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 UK TV broadcasters already offering Internet VOD "catch up" services for 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.

  137.  The BBFC's research has revealed a great deal of concern about films being offered for download without independent content advice and has identified an overwhelming desire to see the BBFC classification system, so familiar from the world of cinema and DVD, carried over into the world of Internet VOD services (91% of parents would like to see this).[143] Without such an easy, reliable and trustworthy guide to film content, parents are likely to struggle to exercise effective control over their children's viewing, risking exactly the sort of harm that the VRA was designed to prevent in the medium of video and DVD.

  138.  To take a simple example, the films The Cave and The Descent are both horror films made in 2005, set underground, with largely unknown casts, and using similarly dark and vague artwork in their promotion (see below).

  The Internet Movie Database describes the former as "Bloodthirsty creatures await a pack of divers who become trapped in an underwater cave network" and the latter as "A caving expedition goes horribly wrong, as the explorers become trapped and ultimately pursued by a strange breed of predators". A parent faced with deciding which, if any, of these might be suitable for their 12-year-old to view is seriously handicapped in the absence of a BBFC classification symbol and associated Consumer Advice, which in this case are:

  139.  Even in the mainstream industry, there are many examples of material whose distribution in cinemas or on DVDs may have had serious harmful consequence for children if not for the intervention of the BBFC. Over recent years, the BBFC's many interventions on child protection grounds have included a scene in film from a company specialising in family entertainment which encouraged young children to play in a tumble drier, an advert from an anorexia awareness campaign which had the unintended consequence of giving vulnerable adolescents advice on how to "succeed" at being anorexic, and a number of examples giving practical advice on particularly effective suicide techniques and drug manufacture. None of companies involved in the distribution of these works had identified a potential "harm issue". In an unregulated Internet VOD world, without prior scrutiny by the BBFC, all this material, and many similar examples, would have been distributed to under 18s.

THE INTERNET: OPPORTUNITIES FOR PREVENTING OR MINIMISING RISKS OF HARM

  140.  In the view of the BBFC, regulation of the moving image has demonstrated its social usefulness over many decades, especially in relation to protecting children, vulnerable adults and society in general. Effective regulation gives the public information that empowers them to make appropriate viewing decisions for 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.

  141.  The rapid development of video streaming and download services online, 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.

  142.  Of course, there are legal controls, including offences relating to the distribution and possession of indecent images of children, and to the distribution of obscene material, but beyond these very serious areas 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 material, while harmful, fails to meet the high thresholds set by the OPA and by the POCA; or, in relation to material which does meet those high thresholds, 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 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.

  143.  The EU Audiovisual Media Services directive, which the UK Government will be obliged to implement by the end of 2009, does require certain minimum standard regulation for certain VOD services. In particular, it requires the UK Government to take appropriate measures to ensure that VOD services provided by media service providers under their jurisdiction which might seriously impair the physical, mental or moral development of minors are only made available in such a way that ensures that minors will not normally hear or see them. Unfortunately the directive only places an obligations on the UK to ensure effective regulation of services which are both "TV like" and based in the UK.

  144.  Clearly, this will leave many (indeed most) Internet VOD services free to continue to supply video material which might seriously impair the physical, mental or moral development of minors in such a way that minors are almost certain to come across it. Although some VOD services, like the BBC iplayer, are extensions of TV viewing, and therefore arguably "TV like", others are extensions of the DVD rental and retail markets (eg Vizumi, Apple's iTunes), and still more are wholly new types of service (eg YouTube).

  145.  Of course, arguments will be put forward in favour of models of pure self-regulation for services which fall outside the narrow scope of the EU directive. 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 & 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.

  146.  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 or assistance from an established regulator, 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.

  147.  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.

  148.  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 ).

  149.  "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. A "notice and take down" scheme for harmful VOD content would need to be backed by substantial public awareness initiatives to be effective.

  150.  "Notice and Take Down" systems can also have negative consequences for the right to freedom of expression if undertaken on a purely self-regulatory basis, as they encourage 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). "Notice and take down" systems are likely to be most effective when mediated by an independent and trusted third party with experience of the material being considered.

Voluntary Co-regulation: BBFC.online

  151.  For much Internet content, co-regulation is likely to emerge as an attractive alternative to pure self-regulation. Such schemes combine the advantages of self-regulation with the trust, accountability, effectiveness and concern for civil liberties that comes with independent regulation. Although there is much ground to be made up, the BBFC is convinced that an effective co-regulation model can work for mainstream Internet video content.

  152.  To that end, the BBFC has been working with leading video content providers and aggregators, including Disney, Warner Bros, Sony Pictures, 20th Century Fox, Tartan, Arts Alliance Media, Entertainment UK, BT Vision, Tesco and others to develop a voluntary scheme, overseen by the BBFC, which will transfer all the benefits of DVD classification to the online world of video on demand.

  153.  The scheme is called "BBFC.online" and operates on a membership basis, with the annual membership fee set at a maximum of £900. Members can request from the BBFC "online classification certificates" for video material they are intending to sell via streaming or download. If the work has already been classified under the VRA, or is being classified under the VRA, the additional cost is minimal. New works submitted by a scheme member for classification under the VRA are eligible to receive an online classification free of charge. Online classifications can also be provided for works previously classified under the VRA for a fee of just £45 per title. On classification, the member is sent an "electronic black card" which they are obliged to place at the front of the content file so that when the consumer plays the video, the first thing they see is the BBFC black card, just as they do in the cinema (see Appendix 3). Members are also obliged to ensure that appropriate gate keeping mechanisms are in place to ensure that age restricted material (eg that classified "12", "15", "18") is not sold to persons below that age. Members who are aggregators (ie the website operators) are also obliged to display category and consumer advice information in a manner prescribed by the scheme, and using materials provided by the BBFC. In most cases this will involve display of the appropriate BBFC symbol next to the title of the work being offered. Moving the computer mouse over the symbol brings up a hover box "white card" certificate (see Appendix 2) certifying that the work has been classified by the BBFC for supply via download, streaming or similar, displaying the symbol with its definition, displaying the unique consumer advice for that work, and featuring a live link to the relevant classification record on the BBFC's own website.

  154.  Compliance with the scheme rules is monitored by the BBFC (funded by the membership and classification fees). Failure to comply with the scheme rules could ultimately lead to expulsion from the scheme and the loss of the right to display the BBFC's intellectual property (classification symbols, white card design, black card on content file).

  155.  The scheme was developed in response to both industry concerns about the possible consequences of stepping outside the well regulated world of DVD, and public concerns about unregulated content being offered on video on demand websites. As noted earlier, the BBFC commissioned quantitative research from leading market researcher TNS[144] who investigated public concerns and requirements through a panel of over 4000 adults in the UK. 74% of parents were concerned about downloading a film or programme without independent guidance on its content or suitability for a particular age group and 91% of parents wanted to see BBFC symbols on films or programmes offered for download.

  156.  The particular design of the BBFC.online scheme has been subjected to qualitative research within the last few months. Focus groups across the various demographic groups were invited to look at a mock website with the BBFC.online "white card" and "black card" elements in place, to compare it with live video on demand websites in the UK and the USA and to discuss their informational and gatekeeping needs with regard to such services. The results were uniformly (and almost embarrassingly) positive. Whether young or old, whether in manual work or professional employment, whether male or female, whether a parent or free young and single, respondents expressed extraordinary support for the BBFC.online scheme. Respondents were dismayed at the idea of downloadable films being offered without a BBFC classification; liked the way in which the scheme presented content information through use of familiar symbols, iconography and consumer advice; and trusted the BBFC as a source of such information. Asked whether they were more likely to use a site which was a member of the BBFC.online scheme there was a clear affirmative response. It was also clear that there was some incredulity at the fact that the law allowed the sale of films via download without any requirement for classification or effective gatekeeping—many assumed that the companies involved would have to follow the same procedure as for DVD.

  157.  Given clear public support for the scheme, the BBFC believes that responsible distributors of video content online will embrace BBFC.online as a voluntary co-regulation system which allows them to present their video content to the UK public complete with the symbols, consumer advice and effective gatekeeping that they have grown to recognise, understand and trust from the world of cinema and DVD. Both qualitative and quantitative research, and the positive reactions of major content providers and aggregators underpins the BBFC's confidence that BBFC.online will be a success in providing a safe space in which responsible companies can offer well regulated video products to families who want to buy in a well regulated market place.

  158.  The BBFC.online scheme has been designed to include video games as well as linear video material. Video games which are offered via download, or which are played online, can also apply for online certificates. As with games being supplied on discs, the BBFC will classify the game on the basis of extensive gameplay by independent examiners, and publishers will be obliged to display BBFC classification information and content advice in the prescribed manner and to limit access in accordance with any age restrictions set by the classification.

  159.  The BBFC.online scheme is also attracting support from responsible purveyors of adult material classified "R18". Many such companies are aware that the legislation currently before Parliament will make it a criminal offence to possess certain types of extreme pornography and that, crucially, a video work classified by the BBFC is excluded from the scope of the offence. Joining the scheme, and having their videos classified, therefore provides a guarantee that neither they, nor their customers, will find themselves in jail for up to three years. The BBFC.online scheme has strict rules regarding "R18" content and these mimic, as far as is practicable in the online world, the "behind closed doors" sales environment of the licensed sex shop in which "R18" DVDs must be sold.

  160.  The BBFC.online scheme is currently being trialled with major content providers and aggregators. The BBFC's internal procedures and software have been redesigned to allow the scheme to operate smoothly and in a manner which takes into account the needs of both scheme members and the public. Consultation on the scheme design nears its conclusion and the BBFC hopes to officially launch the scheme in the summer of 2008.

Statutory Controls

  161.  While the BBFC is confident about the take up for its voluntary co-regulation scheme among responsible and mainstream video and video game distributors and publishers, it is equally confident that many websites offering video material which is likely to harm children, vulnerable adults and society (especially: pornography and extreme reality material) will not voluntarily submit to regulation either because the material they offer would not be approved for sale by a responsible regulator, or because they will choose not to bear the costs that are inevitably associated with any form of regulation.

  162.  Of course, parents should be encouraged to make use of Internet filters and both children and parents should be educated on the importance of, and techniques for, using the Internet safely. But even with the best will in the world, filters are not perfect, parents will not always be able to use them properly, and children will not always follow best practice for safe surfing. It is likely that as long as material harmful to children is accessible from the UK without effective gatekeeping measures in place, UK children will access it.

  163.  Even if children could be prevented from accessing the material, the concern remains that harm may be caused to children through the behaviour of adults who have viewed the material. A significant number of adults actively seek out the most worrying and harmful material and their exposure to such material will not be prevented by "parental controls" systems or labelling. This is a particular concern in relation to pornography which presents child-like characters being abused. Such material escapes prosecution under the Protection of Children Act by using performers who are at least 18 years old. But by casting adults with underdeveloped physiques and youthful faces, dressing them in childish clothes, and encouraging them to act in a childish fashion in a scenario which mimics child abuse, such videos provide powerful validation and stimulation to viewers already predisposed towards abusive behaviour. Such pornography is not rare and the demand for it within the UK is not insubstantial. The provision of filtering tools and effective labelling, and all the media education in the world, will not prevent this material from being accessed by adults in the UK with consequent harmful outcomes for the children who are unlucky enough to come into contact with them.

  164.  In the view of the BBFC, it is possible to define particular sets of video material which are likely to cause particular harm. Pornography is an obvious example and will have a statutory definition ("An image is `pornographic' if it appears to have been produced solely or principally for the purpose of sexual arousal") when the Criminal Justice and Immigration Bill becomes law. It would be quite possible to make it unlawful to distribute within the UK via the Internet pornographic video material which had not been classified "R18", and which did not display the appropriate classification symbols, and which did not have effective gatekeeping measures in place.

  165.  Any such scheme would obviously face serious issues around enforcement, particularly due to the extra-territoriality of the Internet (UK authorities cannot prosecute if the publisher is, and remains, outside the UK). The BBFC believes that such issues can be overcome but even if they cannot, there is surely value in ensuring that the UK does not host Internet services which offer video material of a nature, or in a manner, which is likely to seriously harm children. This is exactly the line that the UK has taken over child pornography. At the European level, the EU directive discussed at paragraphs 143 to 144, requires member states to adopt regulatory measures even though the measures will not apply to services outside the EU. There is merit in putting our own house in order even if others do not immediately follow our lead.

  166.  As indicated, the BBFC does not share the view that the cross border nature of the Internet makes it impossible to deal with material hosted abroad. Given the political will, controls can be imposed by utilising the pinch points at which the services do interact with entities with a UK presence.

  167.  The first of these is the Internet Service Provider (ISP). If given the appropriate information the ISP can remove the content from its server or otherwise block access to it. This system already operates with respect to child pornography (a useful chart sets out the process in the Ofcom publication "Online Protection: A survey of consumer, industry and regulatory mechanisms and systems" (page 73)) although the ISP is not obliged to act in respect of material hosted outside the UK. A well funded "notice and take down" procedure with statutory authority could be a highly effective tool against harmful Internet content other than child pornography.

  168.  It would be quite possible for a designated body to perform, in relation to pornography or other harmful material, the function currently performed by the Internet Watch Foundation in relation to child abuse images. Such a body would identify sites offering unclassified pornography, or offering classified pornography without effective gatekeeping controls in place, and would maintain and update a database of such sites which ISPs could remove from their servers or block access to. It could be made mandatory for ISPs to act within a specified period of time.

  169.  The second pinch point is the banking system. Although some sites are free to use, almost all sites offering video material are funded by advertising or by direct charges using a credit or debit card or other form of non-cash payment. For example, the USA has used the commercial nature of online gambling sites as a means of preventing the sites from being used for gambling from within the USA. This measure has been very effective and almost completely removed online gambling from the USA overnight.

  170.  In basic outline, the US legislation (the Safe Ports Act) works as follows: it defines certain financial transactions as "restricted transactions" and makes receipt of payment by way of a restricted transaction an offence. Restricted transactions are those involving online gambling. Those involved in receiving payments can only be prosecuted if they landed on US soil (as some have been foolish enough to do) but the establishment of "restricted payments" enables enforcement to be carried out via the banking system. This is the key to effective enforcement and works on the basis that a commercial transaction involving customer funds held within the US banking system can be blocked by US financial institutions. The US legislation simply requires the banks to identify the restricted services and block the transactions that involve them.

  171.  Although such a measure which would be deeply unpopular with the banking system, this could clearly be adapted in the UK as a means of blocking the commercial supply of unregulated pornography (or other sets of harmful content), especially if advertising on such sites was also outlawed (a measure which has precedent in the UK in relation to TV broadcasters based outside the UK). To ease the burden on banks, UK payment systems could simply be required to block "restricted transactions", placing the responsibility for identifying services offering such transactions on a designated authority. Under this model, the designated authority would maintain a "proscribed list" of services offering restricted transactions and the payment systems would be obliged to block payments to such services.

  172.  Given the range of possible enforcement mechanisms available, the BBFC also believes that a VRA style approach, so successful in relation to videos and DVDs, can be made to work in respect of video material on the Internet. Indeed, we have already worked up an outline of the legislative changes required to achieve such an outcome.

  173.  The BBFC believes that statutory force, or at least the threat of statutory force, may be required if children are to be adequately protected from harmful video material on the Internet, both in relation to extreme material and in relation to the marketing of age-inappropriate mainstream material to children (a natural tendency in a market based on attracting the widest possible audience). Co-regulation models are far more likely to succeed if failure is bound to result in a statutory alternative. If Government is minded to legislate in the short term then reserve powers could be taken, if not then an intention to do so in future should be clearly indicated.

Concluding remarks

  174.  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 Internet provides 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 welfare of children or society. 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.

  175.  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. Through the development of the BBFC.online scheme the BBFC has already moved to create an effective solution for those providers of video content who see a commercial advantage in presenting consumers which video content which is regulated, classified and labelled according to a system they already recognise, understand and trust from the world of cinema and DVD; and in which age restricted material is subject to effective gatekeeping.

  176.  With regard to Internet video services which are unlikely to voluntarily submit to effective regulation, truly effective child protection systems are unlikely to develop unless 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.

  177.  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 review and to be involved in any future developments.

APPENDIX 1

EXTENDED CLASSIFICATION INFORMATION/EXTENDED CONSUMER ADVICE EXAMPLES AS PRESENTED ON PARENTS BBFC (www.pbbfc.co.uk)

(A)  FILMS

Charlotte's Web (2007) Classification: "U"

Film released: February 2007

DVD released: 2007

Run time: 96 mins 51 secs

Director: Gary Winick

Cast: Dakota Fanning, Julia Roberts

Consumer Advice: Contains very mild language

Summary

  Dakota Fanning and Julia Roberts (voice) star in this adaptation of the popular children's book.

Extended Consumer Advice

  Based on the classic children's tale, this features part live-action, part CGI-animation, and tells the story of how friends on a farm, including a spider called Charlotte, help save Wilbur the pig from being butchered and cured for Christmas. It is classified U. THIS PARENTS INFORMATION INCLUDES A PLOT SPOILER!

  The defining issues for the film include the use of mild language, threat and the death of a character.

  The mild language refers to one use of "bloody" heard within the first 15 minutes. However, this is neither aggressive nor directed at anyone in particular. Elsewhere, language gets no stronger than a few utterances of "heck".

  The mild sense of threat and dread that comes from the plan to see Wilbur turned into lunch is handled sensitively enough for younger children, with comedy helping to dilute the tension. Reference is made to Wilbur becoming "Christmas dinner with an apple in his mouth" and is reminiscent in tone of similar themes in the film, Babe. The food chain theme is highlighted further by a scene that shows the spider grabbing and wrapping up a fly in its web and commenting: "I eat their blood", but this scene lacks any gory detail.

  Sensitivity is also used when dealing with the death of Charlotte towards the end of the film and is explained by the spider herself as being "part of the natural cycle". Her actual death is free of disturbing imagery. There is later evidence of life turning full circle with the birth of new spiders which ensure a positive and uplifting ending for the film.

  "U" stands for Universal, which means that we think the film is suitable for audiences aged four or older.

Stardust (2007) Classification: "PG"

Adventure/Fantasy

Film released: October 2007

Run time: 126 mins 07 secs

Director: Matthew Vaughn

Cast: Robert De Niro, Michelle Pfeiffer, Claire Danes

Consumer Advice: Contains moderate fantasy violence and scary moments

Summary

  In a countryside town bordering on a magical land, a young man makes a promise to his beloved that he will retrieve a fallen star by venturing into a magical kingdom.

Extended Consumer Advice

  "Stardust" is a fantasy adventure about a young man who ventures into the magical world of Stormhold to find a fallen star. The film contains moderate fantasy violence and scary moments. It also contains one use of very mild language and very mild sex references.

  The combination of fairy tale and adventure story in this film means that the battle between good and evil often results in violence and occasionally death. However, the film's fantastical nature prevents either the violence (which is mostly sword to sword duelling) or the deaths from being graphic or realistic. The impacts between weapon and body are generally hidden by clothing or furniture and the "bad" characters are either killed off-screen or the fatal moments are brief and free of blood.

  The film's scary moments include some scenes where the main heroes are threatened by the bad witches or the evil Princes. However, these scenes are fantastical as well as brief and quickly resolved, leaving the good characters safe and sound until the next stage of their adventure.

  The very mild language consists of one use of "bloody".

  The sex references include a rejuvenated witch admiring her own bottom in a mirror and a joke from a jovial pirate about "not wearing a wench out".

  "PG" stands for Parental Guidance. A "PG" film should not disturb a child aged around eight or older. However, parents are advised to consider whether the content may upset younger or more sensitive children.

Harry Potter and the Order of the Phoenix (2007) Classification: "12A"

Film released: July 2007

Run time: 138 mins 03 secs

Director: David Yates

Cast: Daniel Radcliffe, Rupert Grint, Emma Watson

Consumer Advice: Contains moderate fantasy violence and horror

Summary

  Harry and Dumbledore are targeted by the Wizard authorities as an authoritarian bureaucrat seizes power at Hogwarts.

Extended Consumer Advice

  "Harry Potter and the Order of the Phoenix" is the fifth film based on the popular character created by J K Rowling. The film contains moderate fantasy violence and horror. In addition, it contains some mild language.

  The violence is mostly undetailed and fantastical, with powerful magical spells being exchanged throughout. This sort of action will be familiar to fans of the previous films in the series. For example, one scene features Harry and his gang casting spells to combat Malfoy and the Death Eaters—this involves dramatic music and special effects, but there is no emphasis on blood or injuries.

  The film also contains some moderate horror imagery, with some potentially frightening fantasy creatures. Good examples are the Dementors and the noseless Voldemort. It was felt that many of the creatures would be familiar to the large fan-base and the horror is balanced by lighter moments.

  The mild language includes uses of "tosspot", "bloody" and "bugger".

  No-one younger than 12 may see a "12A" film in a cinema unless accompanied by an adult. No-one younger than 12 may rent or buy a "12" rated video or DVD.

(B)  VIDEOGAMES

Spongebob's Atlantis Squarepantis (2007) Classification: "U"

Action adventure

Released: November 2007

Consoles: Nintendo DS/Nintendo Game Boy/Nintendo Wii/PlayStation 2

Consumer Advice: Contains very mild cartoon violence

Summary

  SpongeBob and his friends leave Bikini Bottom and journey to Atlantis in search of hidden treasure. When they get there, things go wrong and the friends must flee or they will be destroyed by Plankton.

Extended Consumer Advice

  Spongebob's Atlantis Squarepantis is an action-adventure game featuring characters from the animated TV series. Characters must avoid obstacles and attack enemies in order to win the game. The game contains very mild cartoon violence.

  The violence consists of the characters firing ice-cream guns/hamburger patties/ping pong balls at their enemies. All of this action takes place within a non-threatening cartoon environment.

  "U} stands for Universal, which means that we think the game is suitable for those aged four or older.

Assassin's Creed (2007) Classification: "15"

Action adventure

Released: November 2007

Consoles: PlayStation 3/Xbox 360

Consumer Advice: Contains strong bloody violence

Summary

  The game takes place during the Third Crusade, in the year 1191. The player assumes the role of Altr, a member of the Hashshashin sect, whose objective is to slay nine historical figures who are exploiting the hostilities created by the Crusades.

Extended Consumer Advice

  "Assassin's Creed" is a third-person perspective action-adventure game in which the player takes on the role of a Crusades-era Assassin. The game contains strong bloody violence. It also contains mild language.

  The violence occurs throughout the game and includes sight of gushing blood when characters are attacked by a variety of hand-held weapons including swords, daggers and throwing knives. However, this violence does not extend to body dismemberment or other similarly gory images. The player-character is also shown stabbing some enemies in cold blood or slitting their throats, although the sight of the latter is obscured by the camera angle.

  Some non-interactive scenes in the game also show violence perpetrated between characters, such as stabbing or public execution. The visual representation of these events is graphically similar to the game itself, with sight of spurting blood during the murders.

  The language includes "bastard" and "shit".

  No-one younger than 15 may rent or buy a "15" rated game.

50 Cent: Bullet Proof (2005) Classification: "18"

Shoot-'em-up

Released: November 2005

Consoles: PlayStation 2/PlayStation Portable/Xbox

Consumer Advice: Contains frequent strong bloody violence

Summary

  Shoot-'em-up game, in which the gamer plays the role of rapper 50 Cent who, having been shot and left for dead, gets a gang together to fight criminal gangs and uncover an international conspiracy involving terrorists and drug smugglers.

Extended Consumer Advice

  "50 Cent: Bullet Proof" is a third person perspective shoot-'em-up, where the gamer plays as rapper 50 Cent as he fights rival gangs and criminals in New York. The game contains frequent strong bloody violence. It also contains strong language and hard drug references.

  Strong bloody violence is the key issue in this game. Armed with a number of modern weapons, the player fights large numbers of enemies. Bullet impacts cause large bloodspurts. The player may also take, interrogate and execute hostages. A key feature of the game is the player's ability to watch himself killing his enemies in bloody slow motion with guns, knives, boots and fists while swivelling the camera around the kill to get the best possible view. The lethal violence—including shooting and stabbing game characters in the face, stamping on characters' heads and eviscerating characters with a knife—dwells on detail and the player is rewarded for these killings.

  As well as strong violence, the game contains strong language ("f**k") and drug references.

  "18" means suitable for adults only. No-one younger than 18 may rent or buy an "18" rated video game.

APPENDIX 2

BBFC.online "WHITE CARD"

EXAMPLE

APPENDIX 3

BBFC.online "BLACK CARD"

EXAMPLES

January 2008

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134   Language and Sexual Imagery in Broadcasting: A Contextual Investigation by the Fuse Group, September 2005. Back

135   Harm and Offence in Media Content: A review of the evidence by Andrea Millwood Hargrave and Sonia Livingstone, January 2006. Back

136   http://www.bbfc.co.uk/downloads/index.php Back

137   http://www.bbfc.co.uk/downloads/index.php Back

138   http://www.bbfc.co.uk/downloads/index.php Back

139   Awareness and Perceived Authority of Age Ratings on Video Games-Modulum S.a.r.l. Back

140   Classifying Games: Qualitative Research Findings-Slesenger Research/GoldstonePerl Research (2008) http://www.bbfc.co.uk/downloads/index.php Back

141   http://www.game.co.uk/Help/OrderingQuestions.aspx?help=willyourgameswillyourgames Back

142   Violence And Abuse In "R18" Level Pornography-BBFC Expert Consultation 2007 (http://www.bbfc.co.uk/downloads/index.php) Back

143   Downloading Classification Study, TNS Worldpanel 2007 (http://www.bbfc.co.uk/downloads/index.php) Back

144   Downloading classification study-TNS Worldpanel 2007 (http://www.bbfc.co.uk/downloads/index.php) Back

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Prepared 31 July 2008