NCROPA on “Obscenity”


Note: Here is another document from NCROPA. The Libertarian Alliance sometimes does these responses to Government consultations, though never in such depth. I don’t think the past tweleve years have made the response obsolete. SIG

NATIONAL CAMPAIGN FOR THE REFORM
OF THE OBSCENE PUBLICATIONS ACTS (NCROPA)

HOME OFFICE CONSULTATION PAPER
ON THE REGULATION OF R18 VIDEOS
JULY 2000

A RESPONSE

 PREAMBLE

The National Campaign for the Reform of the Obscene Publications Acts (NCROPA) is an entirely voluntary, law reform organisation, founded by its present Honorary Director nearly 25 years ago. It is completely independent and has no connections with any business or commercial interest. Its broad aims are the enactment of fundamental changes to the U.K.’s laws which will allow ‘consenting adults’ the freedom to choose for themselves what they see, read and hear. This is a basic freedom in any ‘free society’ and one that is incorporated in both the United Nations Universal Declaration of Human Rights 1948 (Article 19) and the European Convention on Human Rights 1950 (Article 10).

Although, now, virtually all other ‘free society’ countries in the world afford their populations this right, the people of the U.K. are still, shamefully – and almost uniquely – denied it, by being subject to viciously repressive, authoritarian, State censorship laws. This is particularly so with regard to sexually explicit material, which is effectively prohibited. It is this area especially with which the NCROPA is most concerned.

It is difficult to make constructive comment on matters of law about which one has initial general disapproval. However, the NCROPA has, in this response, endeavoured to be as frank, honest and helpful as possible. The Home Office’s Consultation Paper’s terms of reference are, we know, very limited, but we trust the reader will appreciate that, in responding to many of the particular points raised, it is impossible not to include discussion of the much broader issues involved regarding matters of censorship in general.

(N.B. We are responding to the Consultation Paper ‘ad seriatum’.)

1. INTRODUCTION

R18 Videos

1.1. The NCROPA believes that the role of the “designated authority” (viz the Government appointed British Board of Film Classification), as provided for in the Video Recordings Act 1984, should be changed from its present one of classification or refusal of classification to one of classification only (i.e. the removal of the power to impose a legal ban on any videowork). In a ‘free society’ the State should have no power to pre-censor material. A videowork which breaches some other facet of the law would still be properly subject to due legal process according to the provisions of the breached law. (It is not as though a “designated authority” – viz BBFC – awarded classification certificate affords any immunity from subsequent possible prosecution (under the Obscene Publications Acts, for example) at present, bizarre a situation though the NCROPA believes this to be.)

1.2. The observation that our present R18 certificated videoworks “tend to be less (sexually) explicit than those available in much of Europe” is, to say the least, a gross understatement. Virtually the whole of the European Union and most other eastern European countries (the former Communist ‘Eastern Bloc’ counties), as well as nearly all other so-called ‘free-world’ countries, including, of course, the vast First-Amendment protected U.S.A., do not impose the draconian-style pre-censorship State controls to which we, here in the U.K. are subject. The NCROPA deplores the categorised ‘laundry-list’ prohibitions of the present BBFC’s guidelines, not only for their R18 certificates, but for all 18 certificates. The British Board of Film Classification

1.3. The pretence that the BBFC is a “non-statutory” body is absurd. The BBFC is the “designated authority” appointed by the Home Secretary (viz the Government) to pre-censor videoworks in the U.K. in accordance with the provisions of a legal statute (the Video Recordings Act 1984)

1.4. The history of the BBFC and its past and present role as the ‘invited’ censor of publicly-shown cinema feature films (by local authorities) is irrelevant. to the regulation of R18 videos (i.e. those videoworks for sale to over 18 year-olds at licensed sex shops.) R18 videoworks are essentially and almost exclusively for ‘consumption’ in the privacy of the home and are viewed there by the deliberate and conscious exercise of the free choice of individual adults.

1.5. This is a distortion of the truth. Where a “designated authority” (the BBFC) is responsible to the Home Secretary (and appointed and accountable to him) for “applying the statutory classification system for videoworks set out in the Act” (the Video Recordings Act 1984), it is a nonsense to pretend that “the Government is not, however, involved in individual classification decisions.” The BBFC is obliged to implement the Government’s (i.e. the State’s) will or, as we have seen, face the Home Secretary’s severe chastisement or potential dismissal. (What else has brought about this very consultation paper?!) It is an impossible position for any supposedly “independent” “designated authority” to be placed in, and clearly demonstrates just how untenable state censorship is. The Video Appeals Committee

1.6.      The BBFC (the “designated authority”) has, over the past 16 years boasted of the very few times it has refused outright to grant a classification certificate to a submitted videowork. This is hardly surprising when the vast majority of sexually explicit videoworks are not submitted to them for classification in the first place. The NCROPA especially has in mind, of course, the literally tens of thousands of such ‘adult’ videos produced throughout the world (the ‘adult’ X-rated U.S.A. video industry alone is an annual eight billion dollar market and by far exceeds so-called mainstream cinema feature-film industry’s turnover). The producers and distributors of these videos, only too aware of the ridiculous but ruthlessly repressive censorship controls here, are in no way going to be foolish enough to waste money on the inevitable rejections their products would receive by the State’s ‘poodle’ enforcers. It is hardly surprising, therefore, that in consequence, the BBFC Video Appeals Committee has only had to convene 15 times since its inception. This presents an entirely distorted view of the impact of the rampant and unjust video censorship with which the U.K. Government is so obsessed, and of the hidden huge desire and demand here for sexually explicit material as, naturally, elsewhere in the world. Furthermore, the legal costs involved in pursuing an appeal before the Video Appeals Committee are yet another discouraging and often prohibitive barrier for most producers. Only very large companies or the very well-heeled can contemplate such a course of action.

1.7. If it was accepted during the passage of the Video Recordings Bill through Parliament that the appeals tribunal would consist ‘of people of distinction and integrity, wholly independent of the industry and the BBFC’, then that is what must be implemented as much as the letter of the Act itself, even though, as the consultation paper also points out, the Act itself “is silent on how the appeals body should be formed.” It has been established fairly recently, in the High Court, that Parliament’s intentions during the page of any piece of legislation are relevant to its subsequent interpretation. Since these clearly ~ Parliament’s intentions during the Bill’s passage (and the writer was present at all Parliamentary hearings of the Bill, including all Standing Committees, in both Houses), they are effectively part of the terms of the Act. The present V.A.C. certainly comprises of such “people of distinct ion and integrity” and, if and when they subsequently make decisions which are not to the liking of their purportedly ‘neutral’ selectors, it is outrageous that they should be pilloried and reviled, not only by a sensationalist, tabloid press, but by the very Board which appointed them and, even more shamefully, by the Government Minister who appointed that Board – but who is, in turn, claimed to be “not involved in individual classification decisions”! (see para. 1.5.)

Legislative Framework

1.8. As the NCROPA has pleaded with the BBFC on numerous occasions, there is no stipulation in the Video Recordings Act 1984 that the “designated authority” is required to consider any other statutes in determining the classification category (or rejection) of a videowork.

Obscene Publications Acts 1959 and 1964

1.9. The contention that the “designated authority” (the BBFC) must bear in mind the Obscene Publications Acts when considering a videowork for classification in the R18 category is absurd. This is because (1) they are not compelled so to do, and (b) the Obscene Publications Acts are, themselves, absurd. The NCROPA has been fighting these monstrous, antediluvian Acts for 25 years. We acknowledge that this consultation exercise is not intended to cover the wider issue of controls on sexually explicit material in general in the UK (page 3 in the consultation paper – ‘Executive Summary’). However, it is impossible to overlook these controls when their existence and implementation has such a profound and pernicious influence on the content of videoworks deemed acceptable for classification. As we have discussed with both the present and previous Directors of the BBFC, and as we have acknowledged, any “designated authority” has an impossible task in trying to assess whether or not a videowork infringes the provisions of the Obscene Publications Act 1959. The legal test of ‘obscenity’, as defined in the Act – the ludicrous “deprave and corrupt” test, renders such assessment impossible. It is impossible because so-called ‘obscenity’ is an entirely subjective concept, not only completely indefinable and unquantifiable itself, but further aggravated by the Act’s even more ludicrous attempt to qualify it by the application of ‘depravity’ and ‘corruption’ tests which are as equally indefinable and unquantifiable. This view was emphatically articulated by Professor R.M. Jackson, Downing Professor of the Laws of England, University of Cambridge in his evidence to the 1968 Arts Council Working Party on the Obscene Publications Acts:

“The supposed depravity and corruption produced by obscene articles is a matter of conjecture. No hard evidence can be put forward, for nobody can demonstrate that anybody has ever been depraved or corrupted by a particular obscene article. A decision that an article would have such a tendency is based entirely upon opinion unsupported by verifiable facts.”

The net result of this absurd law is that no-one ever really knows what the outcome of any particular prosecution will be since Courts each react differently and verdicts are the product of entirely subjective, idiosyncratic deliberations. In short the result of any Obscene Publications Acts case is nothing more than a ‘lottery’. In the light of such a state of affairs, how on earth can an official classification body make any fair and considered value judgment on a videowork’s legality? The answer is it cannot. The double irony is, however, that, even if and when the BBFC (the “designated authority”), in its infinite wisdom, has boldly seen fit to make such an impossible judgment and deemed a videowork fit for a classification certificate, the duly certificated videowork could still possibly be prosecuted under the provisions of the O.P. Acts. This sanction was deliberately left in the Video Recordings Act 1984 during its Standing Committee detailed discussions.

The NCROPA believes the BBFC and the VAC should pay no attention to the O.P. Acts in their deliberations and confine their assessments of all videoworks within their remit solely to the content per se. Video Recordings Act 1984

            1.12.    This odious Act, another against which the NCROPA has campaigned since its conception in 1983 and enactment the following year, was initially introduced as a Private Member’s Bill (by successful ballot winner Graham Bright M.P.). Any pretence by the then Home Secretary, Douglas Hurd M.P., that it had nothing to do with the Government (a Government which prided itself on its ‘Freedom of Choice’-’Freedom of the Market-place’-’Freedom of the Individual’ platforming) was very soon squashed when it effectively took over the Bill and appointed David MelIor, M.P., Home Office Minister of State, to oversee its safe passage through the House. The suggestion in the consultation paper that there was “increasing public and Parliamentary concern over the unregulated content of videos and, in particular, so-called ‘video-nasties’“ was, in reality, a myth – or, at least, a carefully orchestrated ‘knee-jerk’ reaction to the incitements of a sensation-seeking tabloid press with the hysterical backing of the quite disproportionately representative ‘Mary Whitehouse/NVALA/Bernard Braine/Religious Extremist’ lobby. Subsequent, less emotive academic studies have shown a quite different picture. In any case, if the Video Recordings Act was a piece of legislation essentially designed to catch the so-called ‘videonastiest, it was a sledgehammer to crack a nut. Besides, the ‘video-nastiest were already being caught (and prosecuted) under the provisions of the Obscene Publications Acts. For the first time since the cheered demise of the Lord Chamberlain’s lamentable powers to pre-censor all theatrical performances in 1968, the Video Recordings Act re-introduced the concept of pre-censorship by the State. Nowhere else in British Law (except in the Official Secrets Act) does this disturbing reality occur.

1.13. The further restrictive extension of the Video Recordings Act by Section 90 of Part VII of the Criminal Justice and Public Order Act 1994 (once again instigated by a very vocal minority religious lobby spearheaded by ‘Liberal’ M.P. David Alton) added even more viciousness to the authoritarian censorship powers of the State with, this time, Home Secretary Michael Howard weakly kowtowing to the shrill outcries of a fanatical, unrepresentative few. Their justification was, predictably, the same – ‘protect the children’, that most widely abused, devious and dishonest banner slogan of most pro-censorship factions. The premise on which the “designated authority” (the BBFC) is now required to act (because of the added Section 4(A) to the Video Recordings Act 1984) is, in effect, that the content of any videowork unsuitable for children is also unsuitable for adults – and that, in consequence, it must be banned for all. This is, in fact, what David Alton originally demanded in the legislation. The wording of the Criminal Justice and Public Order Act 1994 amendment, cobbled together in indecent haste by a gut-less Home Secretary to appease intolerant bigots, is, however, little better, particularly with its ominous reference to “human sexual activity”. For the past 25 years, the NCROPA has been endeavouring to ram home the point that there is nothing intrinsically bad about “human sexual activity”. Our pleas have fallen on consistently deaf ears, so we make no apology whatsoever for reiterating them here.

Human sexual activity is a perfectly natural and highly pleasurable phenomenon. It thus follows that material about human sexual activity, especially sexually explicit material, will, likewise, be naturally and enthusiastically pursued and consumed, including, of course, that in videowork format, probably (and arguably) its most efficacious format yet. Sexually explicit, sexually titillating videos provide enormous, harmless pleasure to millions all over the world. They may not be as sexually satisfying as ‘the real thing’, but they constitute a very effective and acceptable substitute, especially for those who, through no fault of their own, are denied the good fortune of a real-life sexual partner. It is also, of course, the safest form of ‘safe sex’! That the U.K. Government should seek to censor such innocuous material (and that includes videoworks of ‘sex’ in all its many and varied delightful forms) for consenting adults, is as extraordinary as it is cruel and unjust – notwithstanding the abject absurdity of the Government censor (viz the “designated authority”, viz the BBFC) being expected to predict possible harm caused to any potential video-viewer and base a videowork’s acceptability for viewing on such a prediction.

The Protection of Children Act 1978 1.14. This Act, again originally introduced into a Private Member’s Bill (by Cyril Townsend other example of ‘a sledgehammer to crack a nut’.

Parliament through M.P.) was yet anThe NCROPA opposed this Bill at the time, not because of any support for or condoning of the use of children in sexually explicit material, but because, yet again, we were convinced that there was already ample legislation on the Statute Book to address Mr. Townsend’s concerns. In a NCROPA Press Release at the time we included the following:

“there is ample adequate legislation for the protection of children in existence. This is the view, not only of the Director of Public Prosecutions, but also of the Lord Chief Justice, Lord Widgery. In a Court of Appeal judgment (R. v Sutton) delivered on April 28th 1977 in a case which involved a man, who, under the 1956 Sexual Offences Act had been wrongly convicted of indecent assault against three boys (aged 11 to 13) whilst photographing two of them in the nude, Lord Widgery, whilst reluctantly upholding the man’s appeal, said that:

‘the proper course where there was an act which no-one in their right mind could call an assault but which took place in an indecent situation, was to prosecute under the Indecency with Children Act 1960 and not under the 1956 Act.’

The Indecency with Children Act is still very much on the Statute Book and Mr. Cyril Townsend’s Protection of Children Bill is, therefore, unnecessary.”

In that press release (of 16th February 1978) we also went on to cite the views of Professor Ivor Mills Of the Department of Investigative Medicine, University of Cambridge, that evidence that pornography in general is damaging to children is “surprisingly difficult to find.”

 The extension of the Protection of Children Act 1978, by Section 160 of the Criminal Justice Act 1988, which criminalised mere possession of ‘indecent’ photographs of children under 16, was, again, opposed by the NCROPA – and, again, not because we condoned such material, but because of the precise – or rather imprecise – terms in the legislation. We objected to the use of the unqualified term ‘indecent’ which we described as vague, imprecise and capable only of subjective 10 interpretation. The critical line we took has been graphically vindicated since this extension to the Act came into force by a number of high profile cases in which bona fide, celebrated artists and photographers of children have alarmingly, suddenly found themselves caught up in police raids on their homes and quite wrongly stigmatised with criminality. This is what happens with knee-jerk, badly-thought-through, quick-fix legislation, something which seems to be the hallmark of most of the U.K. ‘s censorship law.

The Cinematograph Films (Animals) Act 1937

1.15. We have no quarrel with the protection of animals used in the making of videoworks from being treated cruelly. Such treatment would, of course, constitute a form of coercion and ‘no coercion’ is a NCROPA ‘yardstick’.

European Convention on Human Rights

1.16. The BBFC, as the “designated authority”, a statutory-appointed body under the provisions of the Video Recordings Act 1984, should have been mindful of its obligations under the European Convention on Human Rights 1950 ever since its inception. Whilst it is true that the incorporation into U.K. Statute Law by way of the Human Rights Act 1998 and its fully operative date of October 2000 formally endorses and institutionalises the U.K.’s acceptance of and adherence to the E.C.H.R., the U.K. was an original signatory to the Convention in 1950 and has been a voluntary ratifier of all its protocols and Court of Human Rights decisions ever since. To suggest that only now does the ECHR hold any sway over the Video Recordings Act 1984 and the BBFC (its “designated authority”) is incorrect. It always has.

1.17. In the NCROPA’s view, the Video Recordings Act 1984 (like the Obscene Publications Acts of 1959 and 1964, the Customs Consolidation Act 1876 and numerous other Acts of state censorship in the U.K.) infringes the provisions of Article 10 of the ECHR (as well as Article 19 of the United Nations Universal Declaration of Human Rights.) The restrictions on ‘freedom of expression’, and sexual ‘freedom of expression’ in particular, imposed by this iniquitous facet of our national law, can in no way “be capable of objective justification as being necessary in a democratic society” for either “public safety”, or “for the prevention of disorder or crime”, or “for the protection of health or morals”, or “for the protection of the reputation or rights of others.” If there was such justification, other democratic societies would not have almost universally jettisoned the kind of draconian censorship restrictions to which U.K. citizens are, scandalously, still subject, especially on sexually explicit videoworks.

 2. ISSUE

Current Classification Safeguards

2.1. In principle, the NCROPA disapproves of any requirement by the State for all videoworks (or, indeed, for any pUblication) to be submitted to its prior scrutiny for classification or refusal of classification (i.e. prohibition) purposes. That is the requirement of the Video Recordings Act 1984. It is not true to imply that “the effect of this Act was to require the BBFC to apply an additional test with regard to the classification of videos.”, as the consultation paper states. Before the Act, the BBFC had no jurisdiction over videoworks whatsoever. They were none of its business. It was not until the former British Board of Film Censors was appointed as “the designated authority” by the Home Secretary of the day – and sheepishly changed its name to British Board of Film Classification (even though its new additional role entailed much greater state censorship power than formerly), that it had authority to scrutinise and censor videoworks at all. It was entirely as a result of the introduction of the Act that the BBFC became involved – and not because of any “effect” of it.

With regard to “suitability for viewing in the home”, this is, or should be, entirely a matter for the free choice of the adult consumer. Where there are children living in the home, it is the responsibility of the adult(s) in charge of them (i.e. parents or guardians) to ‘police’ the accessibility of videoworks and video-players (and also the Internet, of course). The premise on which such a monstrous piece of legislation as the Video Recordings Act 1984 is enacted, must be that the Government believes that £2 videowork should be available to any adult, unless it is also suitable for children’s viewing. This is an outrageous idea and one that needs drastic re-thinking.

If everything marketed for adults had also to be suitable for children, the consequences would be disastrous – as well as lunatic. We make no apology for repeating here a passage from the NCROPA’s invited Memorandum to the House of Commons Home Affairs Committee Inquiry into Computer “Pornography” (October 1993) (which was also subsequently included in our “Critique” of the Criminal Justice and Public Order Bill – Part VII, February 1994). The arguments it promulgated are very relevant to this response and are those we have consistently put forward throughout the past 25 years. They are at the heart of our campaigning and, thus, still very, very valid. We stated then:

“The most commonly articulated justification for ‘censoring’ anything in this increasingly-regulated, censor-obsessed country is that we have to protect the children. This presupposes, of course, that children would be ‘in danger’ or ‘at risk’ if sexually and/or violently explicit material is not ‘censored’. We do not accept that this is so. Whilst we accept that some parents (or guardians) may choose to shield their children from such material whilst under their control and supervision, and that they certainly have the right to bring up their children in this way if they so wish, the fulfilment of that desire is in their own hands. They must exercise appropriate parental control by not affording or permitting their children access to books and magazines they disapprove of, to films and videos they disapprove of and, if necessary, to telephones and computers, and computer hardware and software which is capable of disseminating material they disapprove of including computer games.

Such an expectation of parents is not ridiculous or extreme. Society expects, for example, that parents who smoke tobacco will not permit their children access to their cigarettes or pipes. Parents who have alcoholic drinks in their homes are expected not to permit access by their children to whisky-macs and gin-and-tonics. Society expects – nay, demands that children are not permitted access to poisonous substances and potentially dangerous articles in the home, like matches or kitchen knives. The imposition of such discipline by parents is taken for granted and in cases where it is not imposed and where society deems that as the result of such parents’ irresponsibility their children are ‘in danger’ or ‘at risk’, society legally and properly intervenes. Why should the same criterion not be applied to sexually and/or violently explicit material’ – however it is packaged and in whatever medium – including the medium of the computer? The issue is not whether or not something is or is not “obscene” or “pornographic”. It is whether or not parents (or guardians) are exercising proper parental control and supervision regarding that ‘something’. It is not a Broadcasting Standards Council – nor a Computer Standards Council – this country needs, but a ‘Parenting Standards Council’.

In anticipation of the comeback outcry from our opponents that this may be fine where children have responsible and conscientious parents and/or guardians but that, sadly, many do not, we can only question what real harm would be caused to a child accidentally exposed to sexually and/or violently explicit material and reiterate our contention that the answer is virtually none. We would suggest, for example, that by and large there would be no more harm caused to the child than that caused by a schoolboy’s furtive glimpses of a “Health and Efficiency” magazine behind the cricket pavilion. It is simply part of life and part of growing up.”

The appalling further extension of the already draconian powers of the Video Recordings Act 1984 by the 1994 Criminal Justice and Public Order Act (the additional Section 4A), which increased the BBFC stranglehold ever more tightly by placing a requirement for a “designated authority” to have special regard “to any harm (among other relevant factors) that may be caused to potential viewers or, through their behaviour, to society” when making classification decisions “whatever the category”, is, frankly, outrageous. The notion that images shown on a television (or cinema) screen have an extraordinary, exclusively all-powerful effect on people’s behaviour is simply untrue. No-one denies that screen images of all kinds have some effect on the viewer’s subsequent outlook and therefore possibly resulting behaviour pattern, as indeed does any published or communicated image, but they merely constitute a tiny part of the multitude of multifarious influences and phenomena which contribute to moulding and shaping our lives, attitudes and thinking. By far the greatest influence is that of parents and parental upbringing.

The impact of screen images on the viewer is not one of unqualified and unchallenged persuasiveness. Screen images certainly publicise (sometimes glamourise) and familiarise and inform the viewer, but that in no way ensures or compels approval or acceptance, or even any positive effect one way or the other of such images or ideas depicted or suggested by them. The concept that any activity or behaviour shown on a television or cinema screen is automatically and uncontrollably desired or imitated by the viewer may be an advertising agent’s ‘pipe-dream’ but it is, in reality, a myth. What we rarely hear is the opposite, but much more plausible and valid theor~ that whatever is screened that is distasteful, unpleasant or repugnant will provoke aversion to such activity or behaviour in the viewer.

Current Controls on Sales of R18 Videos

2.2. The consultation paper’s admission that there are only approximately 92 sex shops in the U.K., shows how very few legitimate outlets there are for the sale of R18 certificated videoworks to the public. This is the result of another shabby piece of repressive legislation, the Local Government (Miscellaneous Provisions) Act 1982, whereby local authorities may, if they so choose, operate schemes for the licensing of sex shops. This was yet another piece of hurriedly cobbled-together legislation to appease the ‘Puritan Brigade’ and wherein, at the eleventh hour of the Bill’s passage through the House of Commons (its Third Reading), an intimidated Home Office Minister of State (Patrick Mayhew M.P. – now Lord Mayhew) caved in to the bigots and agreed that local authorities would be afforded the right to decide, if they so wished, that the appropriate number of sex-shops in their area could be ‘nil’. In such cases, there is no right of appeal whatsoever for any sex-shop applicant refused a licence and sex-shops are, thus, effectively banned altogether. This certainly requires urgent repeal, together with the unlimited ‘ceiling’ local authorities are permitted to charge for sex-shop licence applications and for the licences themselves, which are in most cases exorbitant, yet another barrier to the freer availability of sex-shops for the adult consumer and another covert device for the imposition of the statutory censorship of sexually explicit material. With certain safeguards, we can also see no reason why ‘RI8’ videos cannot be sold by mail order. We have no quarrel with strict penalties for suppliers of adult videoworks to children.

Judicial Review of R18 Videos

2.3. If the Home Secretary is concerned about a potential conflict with the enforcement policies of both Customs and Excise and the police (as the result of the BBFC relaxation of its guidelines), there is only one appropriate solution for himself and the Government, and that is the long overdue repeal of the Obscene Publications Act 1959 and of that obnoxious little section of the Customs Consolidation Act 1876 whiab prohibits the importation of so-called “indecent” or “obscene” articles into the U.K. – an out-moded, antiquated, antediluvian piece of legislation, if ever there was one! (Incidentally, why should the Home Secretary be so upset because the Board (the BBFC) “unilaterally” relaxed their guidelines? As a Board proclaimed to be a non-statutory, complete1y “independent organisation” (see paras. 1.3. and 1.5. of the consultation paper], how else could it honestly act other than “unilaterally”?). These law reforms are those for which the NCROPA has been fighting for the past 25 years and are the only real measures which will satisfactorily resolve the problem and permit true freedom of expression “regardless of frontiers” to the U.K.

Throughout this long period, many M.P.s and Parliamentarians have endorsed our views and/or acquiesced in our philosophy, a philosophy now almost universally shared by all countries of the greater ‘free world’ who have sensibly and justly applied it in formulating their censor-free laws. However, very few of these British libertarian friendly politicians have had the courage to stick their heads above the parapet of hypocrisy and bigotry and come out and say so publicly, let alone get involved in essential moves to rid the U.K. of its obsession with censorship. We trust that the present Home Secretary will have the courage to do what is right – and what was, incidentally recommended by the Home Office’s own two-year investigation into “Obscenity and Film Censorship” – the Williams Committee – in 1979. This distinguished Committee, originally set up by the Home Secretary of a former Labour Government (Merlyn Rees M.P. – now Lord Merlyn Rees), unanimously concluded that sexually-explicit material should be freely available to those consenting adults who wish to have it. (H.M.S.O. Cmnd. 7772).

The open acknowledgement in the consultation paper that the Home Secretary “instructed the Board (the BBFC) to rescind their policy change” (in 1997, of easing up a bit on the prohibition of sexually explicit material) confirms what the NCROPA has already asserted in this response (see paras. 1.3. and 1.5.), that the Government is involved in individual classification decisions and that any pretence to the contrary is a sham.

2.4. The bizarre situation whereby the Government’s own appointed “designated authority” (i.e. the State’s censor) appealed via the High Court against a legitimate decision of its own appointed appeals body (the Video Appeals Committee) is quite ludicrous. It is no wonder that the High Court dismissed the application. 2.5. In applying Section 4A of the Video Recordings Act 1984 (i.e. regard to possible harm caused to potential viewers) the High Court decided, quite properly in our view, that the BBFC had decided incorrectly and that the VAC had decided correctly. That should have been an end of the matter. That the Home Office refuses now to accept the verdict of the highest Court in the land with good and sensible grace, and is now embarking on possible ways to thwart the Court’s ruling, is extremely lamentable.

2.6. Mr. Justice Hooper’s rationale for his decision is of enormous importance and one which the NCROPA has been waiting to hear for a very long time, i.e. –

“ ..• I have no doubt that the conclusion ‘that the risk of (the videos in question) being viewed by and causing harm to children or young persons is, on present evidence, insignificant’ is one that a reasonable decision maker could reach ••• “

In ruling the decision (to classify the videos) ~one that a reasonable decision maker could reach”, Mr. Justice Rooper has thus adjudged tBB Video Appeals Committee to be such a “reasonable decision maker”. That the Rome Office clearly thinks otherwise is not only grossly insulting to that Committee, but shows how grossly out of touch it is with current public opinion on what is and what is not nowadays acceptable. ‘Sex’ and the portrayal and/or depiction of ‘sex’ is clearly approved of nowadays by the majority. That such an entirely natural, instinctive, human activity should be so is hardly surprising and it is high time our ‘nannyist’ Government accepted that.

2.7. The consultation paper’s claim that there remains “substantial public concern in the U.K. that such material may fall into the hands of children and that it is clearly unsuitable for them” is an emotive distortion of the reality. Such “public concern” is (a) not “substantial”, and (b) originates, in the main, from the same, old, familiar, predictable sources, viz the intolerant extreme religious lobby and the intolerant extreme feminist lobby. Both these lobbies have been systematically abusing the “protect the children” rallying banner for many years, aided and abetted by an equally mEchievous, distorting media, always hungry for a rabble-rousing, sensationalist story. They are, intruth, a comparatively small minority, but shout loudest and longest. Why successive Governments have been so lily-livered in standing up to their repressive dictates for so long, when they all purport to share a common allegiance to freedom and tolerance,is somewhat puzzling – although it may be that ‘hypocrisy’, sadly so often ‘the name-of-the-game’ in this country, could well have something to do with it!

The consultation paper concedes that “the evidence of such harmful effects (of sexually explicit material on children) is limited”, yet persists in harping on about this alleged “substantial public concern” and the entirely hypothetical effect on children of the “mechanistic and impersonal way sexual activity can be portrayed in the videos.” Whilst this myth continues to be perpetuated, any rational, sensible and fair resolution of the whole censorship dilemma is impossible. Governments must start leading the public on the truth of this matter (as they have done in the past on capital punishment, for example) and stop capitulating to a handful of high-profile bigots. As Magnus Magnusson said in a BBCTV “Wogan” interview some years age, whilst expressing his strong opposition to censorship, if children are young, they don’t understand ‘pornography’ – and if they are old enough to understand it, it won’t harm them.

Writing in “The Times” on 22nd February 1978, Dr. A.P.McEldowney, a former Metropolitan Police Surgeon, gave further strong expert support for the view that the adult sexual intimidation of children (whether accidental or deliberate), apart from actual sexual activity, did little or no real harm. He was responding to a letter from Professor Ivor H. Mills, to whom we have referred earlier in this response (see para. 1.14). Hew wrote thus:

“There can be no doubt that the professor is wholly right. In over 25 years as a Metropolitan Police Surgeon I saw a large number of cases of children who had sexual interference by an adult and it was always my conviction that far more harm was done by the repeated questioning by parents police and myself, and any subsequent examination, than by the act itself, which if left alone the child would have soon forgotten. Children are far more matter of fact than adults generally realize and such sexual experiences should be played down rather than up.”

The young are already grossly and unnecessarily over-protected from exposure to presumed (but quite unproven) harmful effects from videos. Rather than considering ways in which they can be “better protected”, this consultation exercise should be considering ways in which they may be less “protected” and less cocooned by a very misguided authoritarian State. There is an already available storehouse of child protection law elsewhere on the U.K. Statute Book. A blanket ban for all on sexually-explicit adult, videos would be an absurdly extreme ‘O.T.T.’ addition to this legal arsenal.

2.8. The NCROPA was invited to submit a Memorandum to the House of Commons Home Affairs Committee Inquiry into Computer “Pornography” in October 1993 (and an extract from which has been quoted in this response). Our views on the censorship of the ‘Internet’ for adults are, of course, consistent with our overall anti-censorship philosophy.

3. OPTIONS FOR CONSIDERATION

Child Protection Measures

Option 1 – Amendment of Section 4A of the Video Recordings Act 1984 3.1. The only amendment to Section 4A of the Video Recordings Act 1984 which is acceptable to the NCROPA is its repeal. It is based on the premise that a videowork per se has the potential to cause harm to a potential viewer. We do not accept this premise. This point was dealt with under para. 2.1.in the quote from our Memorandum to the Home Affairs Committee Inquiry into Computer Pornography (October 1993). The question of whether or not a child or young person “is likely to view” a sexually-explicit, ‘adult’ orientated videowork (although we believe “insignificant”, as did the Judge in the BBFC’s Judicial Review High Court hearing) is not, therefore, relevant.

3.2. R18 classified videoworks are already sold under strictly controlled conditions only via licensed sex shop outlets. Access to these shops is only permitted to 18 year olds upwards, and there are only around 92 of these (probably less) throughout the whole of the U.K. There are millions of 18 year-olds plus who live in homes (or establishments) where there are no children. It is preposterous to deny all these potential ‘consumers’ of sexually explicit videos their right to view the material of their adult, conscious choice simply because it is not deemed suitable for children also. Where there are homes with children, there are also parents and/or guardians and it is their responsibility to monitor and supervise what their charges are viewing, not a ‘Big Brother’ Government enforcer. If this parental responsibility is neglected or abused, there is plenty of appropriate legislation on the Statute Book to deal with any resulting improper criminal impropriety.

3.3. We deplore any further powers of repression and suppression being afforded the “designated authority” (the BBFC). The consultation paper rightly acknowledges that, even if it were, arguments would still persist about the extent to which children would be exposed to sexually explicit material “particularly in the absence of firm evidence of the extent to which children are affected by this material.” In such a climate of uncertainty and lack of incontrovertible evidence, any harshening of the legislation would be totally unjustified.

3.4. We re-iterate that the NCROPA strongly disapproves of any strengthening of this Section 4A of the VRA 1984.

Option 2 – The creation of criminal offences of showing an R18 video to a child; allowing a child to watch an R18 video; failing to take reasonable care to prevent a child from watching an R18 video, and sentencing options.

3.5. For the purposes of this consultation exercise and within its terms of reference, the NCROPA does not oppose the retention of this offence (Section 11 of the Video Recordings Act 1984) of unlawful supply of a classified R18 videowork to a person under the age of 18 in a licensed sex shop, and the liable penalties. 3.6. Again, for the purposes of this present consultation exercise, and within its terms of reference, the NCROPA does not oppose the retention of this offence (Section 12 of the VRA 1984) of unlawful supply of a classified R18 videowork to a person under the age of 18 other than in a licensed sex shop, and the present liable penalties.

3.7. The creation of an offence of showing a classified R18 certificated videowork to a child (this would mean someone under the age of 18 downwards) is not really acceptable because it would deny parents the right, individually, to decide what their children should or should not be allowed to see. It would also conflict with the pro visions of the European Convention on Human Rights, particularly (and to which the consultation paper refers in para. 3.10) Article ~, the right to respect for a person’s private and family life, but also to Article 10, ‘the right to freedom of expression, ••• the right to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ There are many perfectly well-adjusted, responsible parents who believe in complete openness with regard to sexual matters and the raising of their children. There is certainly no available evidence that the children of parents who follow such a course are in any way harmed by it. Indeed, it often appears that the contrary is true and that children positively benefit from the experience.

In the ECHR, there is, of course, provision made for permitted interference by the State with these basic freedoms in certain limited circumstances (e.g. for ‘the protection of health and morals’), but this is only allowed where national laws are “necessary in a democratic society”. The NCROPA fails to see how such interference could be claimed to be “necessary” when (a) the UK Government accepts that there is no incontrovertible, proven harm caused by viewing a sexually explicit videowork, and (b) virtually all other Governments of both European Union Member States and Council of Europe Member States do not deem such interference “necessary”, and thus do not enforce statutory censorship controls on their populations.

3.B. Notwithstanding the NCROPA’s views already expressed in the forgoing para. 3.7., we believe the creation of an offence of allowing a child to watch an RIB video or failing to take reasonable care to prevent a child from seeing it, would be hugely impracticable and unenforceable in the home. There might be a case for the creation of an offence of allowing a child of whom one is not either the parent or legal guardian to watch such a videowork, but, and as the consultation paper accepts in para. 3.11, “it is necessary to be cautious in criminalising negligence.”

3.9. Subject to the accommodation of our views set out in paras. 3.7 and 3.B, we certainly believe that any such ‘offences’ should apply only where the child is a young child. We would not, therefore, oppose this ‘under 16’ option. The age limitation of 16 Years seems to us to be a sensible compromise, to be in line with the age of consent, provided that this is all-embracing and makes no distinction between heterosexual and homosexual activity. 3.10. The NCROPA accepts that the main responsibility for what children are allowed to watch in the home should rest firmly in the hands of parents or legal guardians. We have already dealt with the other points raised in this part of the consultation paper (para. 3.10) regarding the difficulties of enforcement and the upholding of human rights.

3.11. “Pornographic material” (sexually explicit material) may, the NCROPA accepts, be used in an attempt ”to ‘groom’ children for paedophile activity”, although we believe this is grossly exaggerated and much ‘hyped’ as alarmist propaganda by the prohibitionist, pro-censorship lobby. It is, however, certainly no justification for the total banning of such material for ‘consenting adults’. It is time the ‘consenting adults – no coercion’ lobby, for which the NCROPA has so vigorously championed for the past 25 years (with scant regard from cowardly, often hugely hypocritical politicians of all parties), had its day. The ‘consenting adults’ lobby in no way condones the use of sexually explicit material to coerce children into paedophile activity any more than it condones paedophile activity per se.

As Sir John Mortimer QC has often declared, there may, indeed, be a tiny risk in allowing adults freedom from censorship, but it is a risk that any ‘free society’ must take in the wider and much greater libertarian interests of all. We must keep this in perspective and remember that coercive paedophile behaviour is heavily proscribed by law anyway. The imposition of massive blanket State censorship to combat such a comparatively minor sphere of aberrant social and sexual behaviour (however serious), is using sledgehammer to crack a nut. It is State ‘nannyism’ run riot and totally unreasonable.

3.12. The NCROPA does not accept that the solutions in this area are difficult, as the consultation paper suggests. A basic acceptance by the Government of the sentiments expressed in Article 10 of the European Convention on Human Rights for the right to freedom of expression in the U.K., as enjoyed in most other ‘free’ countries nowadays, and a commitment, not to even more restrictions and prohibitions, but to drastic reforms of the U.K. censorship laws, is all that is required. Why shouldn’t R18 videos (or, indeed, all 18+ videos) contain the most explicit material if that is what the video producers wish to produce, and the adult public wishes to see? and it certainly does. And if and when it does, it will be harming no-one.

Sentencing Options

3.13. The NCROPA feels it inappropriate to comment on levels of penalties for (in most cases) alleged “offences” which it considers ought not to be “offences” at all. However, we will go so far as to say that we can certainly see no reason whatsoever for any increase in the present levels of penalties set by the Video Recordings Act 1984.

3.14. The repeal of Section 11 of the Post Office Act 1953 has always been a target of the NCROPA since our foundation. This legal provision criminalises the sending (or procuring the sending) of allegedly “indecent” or “obscene” material through the post. Consistent with our main objective of the repeal of trl9 Obscene Publications Act 1959 and the removal of the ridiculous twin concepts of ‘indecency’ and ‘obscenity’ from proscriptive British law, we believe that this archaic sanction should be quashed. This would be necessary should R18 videoworks be allowed to be sold via ‘mail order’ something we propose in para. 2.2. (see page 15) with appropriate safeguards. It will follow, of course, that the mooted suggestion for a colossal maximum fine of £20,000 for the illegal supply of R18 videos is quite unacceptable.

3.15. Dealt with in previous paragraphs (3.1. to 3.14.)

Appeals Process

Option 3 – a) Re-establishment of the Video Anneals Committee as a statutory body, or b) Modernisation of its existing recruitment and appointment procedures.

3.16. We have already commented on the background to the establishment of the Video Appeals Committee in paras. 1.6. and 1.7.

3.17. The consultation paper states that “There seems to be a general public perception – reflected in the large number of letters which the Home Office has received – that the (Video Appeals) Committee is unrepresentative and unaccountable.”

First of all, the receipt by the Home Office of a “large number of letters” from the pro-censorship lobby critical of the VAC is in no way necessarily truly reflective of “general public perception”. As the NCROPA has regrettably learned during its 25 years of campaigning, those who wish to suppress, ban and dictate to others what is and is not good for them are always those who are most vociferous and militant. They are the ones who write the letters, join the protests and bang the drum. Sadly, the vast majority, are those who plump for freedom and tolerance and reasonableness but are notoriously sluggish about rousing themselves into action. That does not mean, however, that their views are invalid and should not hold proportionate sway. In fairness, the consultation paper does, in fact, explain how the VAC is accountable to Parliament through its coverage each year in the BBFC’s Annual Report, and that its appeal hearings are held in public. The NCROPA finds it ironic, however, that on the one hand the Home Office is always at pains to boast that its own appointed “designated authority” (the BBFC) is completely independent from Government interference, and therefore presumably chosen because it is a representative body of the public at large, but on the other hand bemoaning the alleged unrepresentativeness of the BBFC’s own subsequently appointed Appeals Committee!

There are clearly double standards at work here and the NCROPA finds the Home Secretary’s impetuous and ungracious response to the High Court ruling most regrettable. His decision not to accept either the findings of a claimedly independent body (albeit operating as part of State censorship machinery duly appointed by himself) the moment it makes a decision which is not to his liking; or the subsequent findings of a High Court Judicial Review of the correctness of that “independent” body’s decision, is deplorable. Furthermore it is pedantic to claim that the VCA’s membership does not reflect “the diversity required”. The v~A only has five members, but this is quite sufficient for the task it is so infrequently called upon to carry out. A committee of five can hardly reflect enormous diversity but the present VAC, comprising of one journalist and playwright (female); one child psychiatrist (male); one legal expert (male); one author of children’s’ books (female); and one solicitor and former head of legal services at the Crown Prosecution Service (male), seems pretty diverse to us.

The VAC is already effectively “on a statutory footing” and it is nonsense for the consultation• paper to pretend otherwise. All that can be construed from this ominous option is that the Home Secretary now, not only wants the power to appoint the body responsible for carrying out State censorship, but also to appoint the individual members who are to serve on that body – and its appeals committee!to thereby ensure that they come up with the decisions he thinks they should come up with!

3.18. A new statutory VAC, in the form of a Lord Chancellor appointed tribunal, would be just another Government ‘quango’.

State censorship is far too important a matter to be entrusted to such a body, simply yet another arm of Government, and the NCROPA rejects it outright.

3.20. The NCROPA is, of course, unhappy about any State censorship body, but it would rather see the present system continue, but unfettered by Government interference, either overt or covert, and whereby the BBFC appoints its own VAC, as at present. The BBFC should not, however, be permitted to appeal against its own appeals committee, as it effectively did in the recent High Court Judicial Review hearing, a situation which is clearly farcical.

3.21. As detailed in paras. 3.17 to 3.20, the NCROPA rejects Option 3(a) in the consultation paper. Since we do not believe the existing recruitment and appointment procedures for the VAC need so called “Modernisation”, we also reject Option 3(b). The status quo should continue.

DRAFT REGULATORY IMPACT ASSESSMENT (Annex)

Purpose and Intended Effect of the Regulations Issue

1. The NCROPA does not accept that there is, in fact, “considerable public concern over the possibility that children may be exposed to sexually explicit material in the form of videoworks which are given an R (restricted) 18 classification.” The statement is, thus, based on the wrong premise in the first place.

Objective

2.         The “safeguards” protecting children from exposure to sexually explicit material in videoworks given an R18 classification by the BBFC (the “designated authority”) are already much more than “adequate”. They are, in fact, excessive. Risk Assessment

3.         As the Draft Regulatory Impact Assessment correctly states, “there is no known and substantiated health or other risk associated with watching a video which has been given an R18 classification.” That is to accept (and the NCROPA hEH:”tily concurs) that there is “no risk” involved. That being so, it is irrational for the Government to take “the common sense view that exposure to such material at an early age may be harmful to children.” This is not a “common sense” view, especially when the Government gives no specific details of what form such harm may take nor can produce any evidence of its impact. This being so, there is no justification and ‘need’ for ensuring “that controls on the distribution and viewing of these videos is as stringent as possible.” (sic)

Options

4. Child Protection Measures

Option 1.(Amendment to the definition of “potential viewer” in Section 4A of the Video Recordings Act 1984) The VRA 1984 already acts as an unnecessary ‘straitjacket’ to ‘freedom of expression’ in the U.K. The impact of this additional restriction will be to add further to the massive State censorship the citizens of the U.K. already have to endure. It is quite unacceptable. Option 2. (Creation of various offences e.g. showing an R18 video to a child, etc.). The implementation of these measures would impact in different ways and the NCROPA’s views on each of them have been set out in paras. 3.5. to 3.14. certainly be extremely difficult to police and enforce acceptable to us in part, as already explained.

Appeals Process They would and are only option 3. «a) re-establishment of the Video Appeals Committee as a statutory body, or (b) modernisation of its existing recruitment and appointment procedures.) The impact of (a) would be a further , even greater alienation of libertarian, freethinking minds from an already largely perceived ‘Big Brother’, authoritarian, nanny-state Government, and the NCROPA deplores it. The impact of (b) would be less alienating but will still be regarded with great suspicion by those who reject censorship. Business Sectors affected

5.         The producers of sexually explicit videoworks in the U.K. are, indeed, small in number. This is hardly surprising in view of the appalling restrictions and hazards under which they operate. The Government should be mindful that, if and where these draconian restrictions were lifted, a highly profitable source of additional revenue would be opened up to them from the inevitably increased sales of legitimate ‘adult’ videos. The BBFC will also substantially increase its income from the thousands of presently proscribed videoworks which, even if they manage to escape the formidable Customs and Excise barriers to importation into this country, are never likely to be submitted for present VRA-restricted classification via the BBFC. Not that any tears need to be shed for the BBFC’s coffers, however. Their present fees are already excessive, in our view. Any additional costs to them as a result of the introduction of new legislation should be absorbed by themselves, but not passed on to the video producer or distributor.

These are presently far too few licensed sex shops in the U.K. This is the result of the enormous difficulties in acquiring such a licence. because of the iniquitous requirements of the Local Government (Miscellaneous Provisions) Act 1982. These obstacles must be removed to go hand-in-hand with the easing-up of restrictions on R18 videoworks. There is no point in allowing “adult” videos greater legal availability if there so few legitimate outlets at which to obtain them.

Benefits

6.         There will be absolutely no benefit to a supposedly ‘free society’ by still further strengthening of the U.K.’s ruthless and unjust censorship laws. The inference in the Draft Regulations Impact Assessment that there is at present “public confidence in the controls on sexually explicit videoworks” is breathtakingly, arrogant nonsense. When virtually all other ‘free societies’ in the world have few or no controls over the free availability of such material, the British public resentment of our draconian laws in our uniquely censor-obsessed country creates an atmosphere of great disquiet and supreme lack of confidence.

Compliance costs for Businesses

It ought not to be necessary for businesses to be subjected to such compliance costs – viz the need to bring appeals against the BBFC and the incurred costs for the operating machinery of unnecessary State censorship policy.

The NCROPA agrees that there would be no additional burden on “legitimate business” under Option 2.

Results of Consultations

After analysing and carefully considering all the details of this consultation paper, the NCROPA does not accept there is real justification for the proposals as presented by the Home Office nor, in consequence, that the balance between cost and benefit is right. It recommends that they are not approved. EPILOGUE The issue is a ‘human rights’ issue. Should the fundamental right to freedom of expression be denied adults to ‘protect’ children? Do children need protection anyway and, if so, why and to what extent? Where there is incontrovertible proof that a child would be harmed by exposure to a sexually explicit videowork, stringent statutory controls on the availability of such material would be justified. The NCROPA is gratified to note that the consultation paper acknowledges that there is no hard evidence to sustain the contention that a child would be so harmed.

We are less gratified to note, however, that, in spite of this, the Home Office is still intent on retaining the harshest of restrictions via statutory censorship, out of all proportion to the perceived, conjectural possible risk.

Whilst we believe this approach to be intolerably repressive, we do not wholly reject certain limited restrictions remaining on sexually explicit material to ‘protect’ children, but we are still vigorously opposed to censorship restrictions on such material for anyone over 16. Our campaign’s aims for the repeal of much of U.K. censorship legislation, especially the Obscene Publications Act 1959, remain as solid as ever and we urge this course of action as the only proper solution to the contentious issue_ of State censorship which still bedevils the U.K., now almost uniquely so. The videowork is an ideal medium for the marketing of uncensored adult material, because it is acquired as the result of a conscious desire on the part of the adult consumer, and is for consumption only in the privacy of the home.

‘Where to draw the line?’ – the censor’s eternal dilemma – will never be satisfactorily resolved. A toleration of another’s means of expression is the only answer. We trust that the Home Office will live up to the legend on the cover of its consultation paper of building a safe, just and tolerant society in which freedom of expression is paramount.

NCROPA, October 2000

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