Let’s finally erase this ‘law’ from the statutes

The revelation that the Video Recordings Act is not a real law shows the dangers of kneejerk, censorious legislation.

Graham Barnfield

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Could the UK Video Recordings Act of 1984 get any more useless?

It was passed amid a moral panic over ‘video nasties’, many if not most of which are now freely available on DVD and marketed as collectible ‘classics’. The Act was, formally speaking, a response to a rapid expansion of the home video market, notably VHS (remember that?). In the mid-1980s, sceptical observers could have been forgiven for thinking that it was also designed to bankrupt anyone trying set to up a video shop using their redundancy money. It is an Act that dates badly: while subsequent legal amendments have padded out the list of technologies to be regulated to include DVDs, consumers have moved on to newer methods of delivering their home entertainment. As an Act ‘to make provision for regulating the distribution of video recordings and for connected purposes’, it was hardly fit for purpose from the outset.

Regulating the British film industry is as old as the industry itself, whose bosses backed the British Board of Film Censors (BBFC) as a pragmatic alternative to local government regulation (which itself survives to this day). From its inception in 1912, the BBFC has worked with different state bodies to varying degrees. One of its continuing activities has been to specify the age at which someone could be admitted to a particular film; and putting it mildly, more than a few of these decisions have displayed a peculiarly British combination of snobbery, shaky logic and philistinism (1). Little wonder Sergei Eisenstein used a 1930 trip to Britain to denounce those banning his Battleship Potemkin in these evocative terms: ‘One of them is blind and probably deals with the silent films; another one is deaf and so gets the sound films; the third one chose to die while I was in London.’

After the Video Recordings Act 1984, the BBFC became the British Board of Film Classification and its age-rated system was extended to home video. At the time, it seemed like an offence to supply videos to individuals who are (or appear to be) younger than the age classification designated to the product. In addition, if certification was refused – or delayed interminably as in the case of The Exorcist – the product could not be legally sold or supplied to anyone of any age. This set a precedent where a law legitimised through the issue of child protection had a direct influence on what over-18s could watch (and go to prison for selling).

Now it is revealed this week that the Act was never officially enacted. Long-term critics of the legislation – be they Tom Dewe Matthews, Mark Kermode, Julian Petley or yours truly – have been missing a trick all these years. When the regulations were first brought in, there was a legal obligation to notify the European Commission, as required under the terms of EEC Technical Standards Directive 83/189/EEC (or Directive 98/34 as it is now known). How this commonsense detail escaped our collective attention remains a mystery. In consequence, the 1984 ‘law’ was not, er, passed into law and is therefore not a law.

The Act attempted to criminalise selling video cassettes that were not certified by the appropriate authority (subsequently taken to mean the BBFC). In theory, this meant that audio-visual products from within the erstwhile Common Market would be stopped at Britain’s borders if they lacked the correct age-related classifications and labelling. Back in the 1980s, this meant British viewers could say cheerio to giallo, and that the various subgenres of German pornography would remain hearsay, neither heard nor seen, and that Swedish Erotica would be stopped at Calais. The sudden relevance of vintage EEC directives reflects the fact that the Video Recordings Act 1984 introduced trade restrictions within Europe by banning imports of unclassified films. Member states are entitled to do this, but they were obliged to notify the EEC within a suitable timeframe.

Given the ill thought-out and pernicious nature of the legislation, it’s hard to avoid a rip-roaring, if not gut-wrenching, belly laugh at the schadenfreude of it all. Panic measures in reaction to newspapers running plot summaries of 1970s exploitation flicks could result in dozy lawmaking? Well fancy that! The same law was tightened in 1994 in response to speculation over the role played by Child’s Play 3 in the killing of toddler James Bulger; next, like the malevolent doll Chucky, its spirit lived on amid the hated Criminal Justice Bill in the mid-1990s. A half-baked debate over media effects and copycat violence rumbled on in the background, supplying the popular press with reservoirs of dogma (2). Is it surprising that rules made up in an irrational context lack even the basic technical requirements to function?

If all this sounds hilarious, spare a thought for the 1,659 people prosecuted under this non-law between 1995 and 2007. Now, a panicky memo from Barbara Follett of the UK Department for Culture, Media and Sport instructs that there be no new prosecutions and ongoing ones be discontinued, yet there’s nothing to indicate that existing convictions will be overturned. Commons Home Affairs select committee chair Keith Vaz – himself a moral entrepreneur when it comes to violent video games – is not convinced, ruminating that ‘if the Act has never been brought into force, prosecutions under it are void. You cannot prosecute someone and convict them on the basis of legislation that has never been in force’. (Follett also flaps about unclassified DVDs flooding the market, although this sounds almost as dated as Betamax, given the ease with which most broadband users in Britain can download more or less what they want, when they want it.)

Regardless of what one thinks of the Video Recordings Act, it would be useful if the situation were clarified. Who wants to be the equivalent of a pause button trapped beneath a legislative finger? Recognising this, the government hopes to reinstate a version of the Act, this time with the correct European notifications built in, within three months of the end of the parliamentary recess. If this scenario sounds familiar, recall that Part 5, Section 63 of the Criminal Justice and Immigration Act 2008 made possession of ‘extreme pornography’ a criminal offence from 26 January this year, drawing on minimal debate and a slender, selective base of evidence. Rather than rushing through yet more kneejerk legislation, wouldn’t it be better to have a grown-up discussion, not least on whether scrapping the Act in its entirety would be preferable?

There is a lot wrong with the BBFC, from government involvement in its senior staff appointments to its double standards on sexually explicit material (3). Do we really need those clunking warnings of content when films are certified, such as ‘brief sight of bloody injury and scenes of emotional distress’ (The Time Traveller’s Wife); ‘strong language and moderate fantasy horror’ (Mega Shark vs Giant Octopus) or ‘misuse of fireworks and mild language and violence’ (Aliens in the Attic)? Could we separate parents reading advice on which materials are suitable for children – or better still, exercising their own discretion – from adults watching what they want? Why is it that in the adults-only R18 category we see the most cuts, applied to 27 per cent of such DVDs in 2007? The list goes on.

The idiocies of the BBFC would be less frustrating were they not also the springboard for prosecutions. Why should the subjective decisions of a quango form the basis for fines and incarceration? The bottom line is that criminal law needs to butt out of the cinema and home entertainment industries. If consenting participants in film productions emerge unharmed from the production process, then the resulting films would meet a revised, forward-looking minimum legal threshold in future. (Whether they should go ahead on aesthetic or commercial grounds is a separate issue.) This latest humiliation for the Video Recordings Act 1984 should be a chance to wipe the tape clean and treat adult viewers as adults.

Graham Barnfield blogs at the Loneliest Jukebox.

Previously on spiked

Graham Barnfield untangled the supposed links between videogames and violence. He also straightened out rumours of the so-called ‘happy slap’ epidemic. Tim Black wondered why the BBFC is so scared of arousal, and reckoned that it is scarier than The Dark Knight. Or read more at spiked issues Liberties and Free speech.

(1) See Tom Dewe Mathews, Censored: What They Didn’t Allow You to See, and Why – Story of Film Censorship in Britain, 1994

(2) See Graham Murdock’s chapter in Ill Effects: The Media Violence Debate (Communication and Society) eds. Martin Barker and Julian Petley, 1997

(3) Antichrist and the posh porn trade, First Post, 23 July 2009

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