Cinematters: Makin' the law, Makin' the law

As previously reported, the Video Recordings Act, which has regulated film censorship for the home in the UK since 1984 was, by some oversight by the Government, never actually enacted into law. Of course the act will be re-enacted, and in the interim all is proceeding pretty much as normal. BBFC recently released a statement on the matter on the front page of their website. It reads, in part…

The Government has set in train the actions necessary to remedy this situation as soon as possible and, as part of that process, have notified the Commission of the new draft Act and the Labelling Regulations deriving from it.

The Government has made clear to the BBFC that, once the process of re-enacting the VRA is complete, all video classification certificates issued by the BBFC since 1984 will be valid, and the legal consequences of non-compliance with the classification regime will be re-instated and enforced as vigorously as previously. Any video recording containing an unclassified video work which has been released in the interim period will need to be withdrawn from sale once the new Act is in force, unless the work can claim exemption.

The Government has therefore urged the industry in the interim to comply with the provisions of the VRA on a voluntary and best practice basis. The BBFC will continue to classify video works submitted by distributors on a voluntary basis for this period.

Essentially, for the moment, little is changing. However, in a climate that has recently seen the tabloids kick up a huge fuss about the release of Antichrist, asking whether it’s uncut certification means that censorship has been rendered pointless, this 25 year old oversight provides the Government a very easy way to tinker with the law, and possibly score some populist points in the run up to an election. So, if the VRA is going to be revised, I thought I’d put my two cents in, and rewrite the British film censorship system, as I would see fit.

1: It will be written into the VRA 2009 that at 18 the assumption will be that adults should be free to choose their own entertainment.
This is already BBFC policy, but enshrining this in law would make it considerably harder for films intended for adults to be censored. This, of course, would not include images that would fall foul of common law. Whenever the discussion of essentially repealing censorship of films for adults comes up somebody, who always seems convinced that they are the first to think of these questions and thus will really stump me, tends to ask one or both of the following questions.

Q1: If we’re going to allow everything does that mean that child porn should be legal?
A: No. Idiot. Because both the acts of producing, purchasing and viewing that material are already illegal, and punishable by custodial sentences, under common law. The same goes for so called ‘snuff’ films (which likely don’t exist, but are so pervasive an urban myth that they often come up in this discussion), for the sort of spycam videos that BBFC have previously refused to classify and for films and sequences of genuine cruelty to animals.

Q2: So you think children should be able to see all the sex and violence they want?
A2: Again, no, of course not. But I’m a responsible adult without children, it’s not my responsibility to make sure that other people’s children don’t see sex and violence, it’s theirs. If they aren’t able to do that then that’s their fault and they should have to deal with and answer for that. The thing is that some people want to limit my freedoms, and yours, because some people are crap parents, and they shouldn’t be allowed to do so. It is not hard to keep kids away from films that are unsuitable for them, my parents managed it and that was without the technology that is now available to make it easier.

2: The VRA 2009 will not be linked to the Obscene Publications Act 1959.
The OPA, as you might expect, is a hopelessly outdated piece of legislation, and yet, our censorship system is still largely predicated on its rule that an article is obscene (and thus subject to suppression) if…

its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

This is a ludicrous standard, by which almost anything could be deemed to be obscene. It’s also problematic because it provides no definition of what it regards as a tendency to deprave and corrupt. In the US there was a shooting at a screening of Schindler’s List. Does this one incident at one screening of a film seen by millions mean that the film exhibits a tendency to deprave and corrupt? Certainly you could make the argument. Does the fact that Jeffrey Dahmer, the infamous cannibalistic killer, sometimes wore yellow contact lenses so he would more resemble the Emperor in his favourite film - Return of the Jedi - mean that that innocuous seeming film depraved and corrupted Dahmer? Is that enough to constitute a tendency? What about the several cases of murderers who cited Natural Born Killers as an inspiration? The only one that came to trial (backed by John Grisham, whose friend had been a victim in that series of crimes) was thrown out of court in very short order. In all the hundreds of times that films have been cited as inspiration in the commission of serious crimes not once has the connection been proven, nor, even in the cases in which a film may have inspired a method of murder has that film been shown to have been the direct cause of that crime. No film has ever been banned of withdrawn as the result of a crime, with the exception of A Clockwork Orange. That’s a special case; it was not withdrawn under the OPA, but by Stanley Kubrick himself, as a result of threats received to his family.

This is not to say that no films have ever been found to be obscene, many of the films on the DPP list that led to the foundation of the VRA in 1984 were convicted, and people even imprisoned for supplying them. Zombie Flesh Eaters, Tenebrae, Driller Killer, Possession, Dead and Buried, The Bogeyman and The Toolbox Murders were all convicted, among others. All of these films, with the exception of The Toolbox Murders, are now available uncut.

This point leads on to another massive flaw in the OPA; the sentence that is its very foundation is one that cannot be objectively applied, it simply can’t be done. What one person (or twelve people) considers depraving and corrupting is a value judgement. Values vary not just over time but also from person to person, and thus trying to regulate art on that basis is ludicrous.

3: Enforcement has to mean something.
The problem of children seeing films that are unsuitable for them arises not from the fact that the VRA is unfit for purpose but the fact that enforcement at both shop and police level is extremely lax. Countless are the times that I’ve seen a clearly underage kid buying an 18 certificate film, or, worse, a parent purchasing an 18 rated film for their very young child. Honestly, what kind of parent buys a copy of Robocop for a nine year old? I understand that a shop assistant can’t do much about the latter case (at least at the till, a friendly word of advice on the shop floor couldn’t go amiss though) but in the former case assistants need to be trained to question younger shoppers more frequently.

Prosecutions under the VRA tend to be for piracy, which is fine, but if the rules are truly going to work then shops need to be made to understand that if they are caught selling films to underage purchasers they will be prosecuted. We don’t need a draconian law, because we ought to be encouraging both artistic freedom for filmmakers and freedom of choice for audiences. We may, however, at least for a while, need draconian enforcement, because the laws need to work, and there are always going to be films that need to be restricted, as effectively as possible, to an adult audience.