Select Committee on Culture, Media and Sport Minutes of Evidence

Memorandum submitted by the British Board of Film Classification


    —  The BBFC is a highly experienced, independent regulator of film, video/DVD, and video games. Its determinations have legal force and are based on published guidelines developed through extensive public consultation.

    —  The BBFC is currently experiencing record numbers of submissions, pioneered the comprehensive provision of individually tailored content advice, and has developed a role as a major player in the promotion of media literacy.

    —  The nature of the media it regulates, and the fact that its regulation involves thorough pre-publication scrutiny of the material, sets it apart from Ofcom.

    —  A diversity of regulation is an important guard against concerns relating to civil liberties (especially freedom of expression).

    —  The BBFC has accumulated unrivalled experience and expertise in the regulation of extreme material, including "hardcore" pornography and material which challenges the limits of the law.

    —  Technological changes are presenting various and serious challenges to the established regulation of film, video/DVD and video games, with potentially significant consequences for the welfare of children in particular and society in general.

    —  New media have created platforms for delivery of audio-visual content which is not subject to any independent or statutory based regulation.

    —  Industry self-regulation is unlikely, on its own, to develop a framework which will achieve acceptable standards of public awareness, understanding, trust, effectiveness, accountability and respect for freedom of expression.

    —  Without such a framework children and vulnerable adults will gain easy access to material which is harmful (to themselves or, through their subsequent actions, to society), and parents will be unable to exercise effective control over the material to which their children are exposed.

    —  What is required is a coordinated and systematic approach, driven by Government, in which the major new media industry players and the regulators come together to devise a coherent set of solutions.

    —  The experience of the BBFC in regulating a vast range moving image content in a non-linear environment would be an asset to any such initiative, and the BBFC would very much like to be involved in any future developments.


  1.  The British Board of Film Classification (BBFC) is a highly experienced regulator of the moving image (especially film, video/DVD and video games), and also a service provider for new and developing media. The BBFC regulates not just as a statutory designated authority but also because we believe we serve a socially useful function. Through the efficient classification of the moving image into advisory and age-related categories, the provision of consumer advice and the maintenance of our archive, we: give the public information that empowers them to make appropriate viewing decisions for themselves and those in their care; help to protect vulnerable viewers and society from the effects of viewing potentially harmful or unsuitable content (while respecting adult freedom of choice); provide media industries with the security and confidence of cost-effective, publicly trusted regulation; help to protect providers of moving image content from inadvertent breaches of UK law; and assist Trading Standards officers in their enforcement role.

  2.  The BBFC's independence is protected by its status as a not-for-profit private company funded by the fees it charges for making its determinations. The fee tariff is based on the cost of considering the submitted material and is agreed by the Secretary of State for Culture, Media and Sport. The BBFC's structure reflects the importance of keeping decisions relating to finance separate from those relating to classification determinations. Responsibility for classification decisions and policy ultimately rests with the President and two Vice-Presidents, while the BBFC's business affairs are controlled by a separate Council of Management which has no involvement in policy work or classification. This memorandum is being submitted on behalf of the BBFC by the Director, who is delegated to make executive decisions, and to formulate and ensure the execution of policy.

  3.  This submission was prepared specially for the Committee and seeks to set out the position of the BBFC is relation to new media and the creative industries. Paragraphs 5 to 11 deal with the background issues relating to the current statutory regulation of media content; paragraphs 12 to 18 set out the current position of the BBFC; paragraphs 19 to 30 identify the particular areas of BBFC expertise; paragraphs 31 to 42 deal with the impact of new technology on the established and regulated sphere; paragraphs 43 to 59 look at moving image content in new media not subject to statutory regulation; and paragraphs 60 to 75 discuss the opportunities for the regulation of moving image content in the new media.

  4.  Any account of the rapid development in technology, and the consequent changes in the ways in which the market allows access to media content, runs the risk of creating a sense that ground has already been lost and that the very possibility of regulating new media is rapidly slipping away. It is easy to understand why this impression is widespread but, in the view of the BBFC, it is not appropriate, especially in light of the continuing need to protect children, and other vulnerable groups, from the effects of exposure to certain kinds of media content. Regulatory regimes are rarely free of gaps and anomalies, and the absence of a single, perfect solution to the problems thrown up by the new media should not accepted as an excuse for inaction. What is required is a coordinated and systematic approach in which the major new media industry players and the regulators come together to devise a coherent set of solutions. Such an approach is unlikely to develop unless it is driven by Government, the only authority that has an overview across all aspects of new media, technology and the public policy concerns that underlie all types of media regulation.


  5.  Founded in 1912, the BBFC's role in the regulation of cinema films has evolved over many years, both through legislation relating to the licensing of cinemas and through changes in the nature of the material and in public attitudes towards it. Although licensing concerns were originally focussed on issues such as fire safety they quickly expanded to cover the potential effects of the films themselves on audiences, including child audiences. The current statutory basis for the regulation of cinema films is found in the Licensing Act 2003 which requires that the admission of under 18s must be restricted in accordance with any recommendation made by the licensing authority or by the film classification body designated under section 4 of the Video Recordings Act 1984 (namely the President and Vice-Presidents of the BBFC). In practice, almost all cinema films released in the UK are classified by the BBFC according to its own thoroughly researched guidelines in order to satisfy the licensing objectives set out in the legislation: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The current classification categories for cinema films are "U", "PG", "12A", "15", "18" and "R18", though the latter category is very rarely used in practice. ("R18" is, however, an important and well-used category for video/DVD.)

  6.  The advent of domestic video recorders in the early 1980s led to widespread concern about the way in which the new technology enabled children to gain access to unregulated and inappropriate material, including pornography and extreme horror films. Parliament responded by introducing statutory regulation of video works by means of the Video Recordings Act 1984 (the VRA), and the President and Vice-Presidents of the BBFC were designated as the authorities responsible for making arrangements for determining whether video works are suitable to be classified (having special regard to the likelihood of videos being viewed in the home), and the classification to be awarded to a suitable video. Since the amendment made by the Criminal Justice and Public Order Act 1994, the BBFC has also been obliged to have special regard to any harm that may be caused to potential viewers (including underage viewers) or, through their behaviour, to society by the manner in which a video work deals with criminal behaviour, illegal drugs, violent behaviour or incidents, horrific behaviour or incidents, or human sexual activity. The current classification categories for video works are: "Uc", "U", "PG", "12", "15", "18" and "R18".

  7.  The definition of a video work under the VRA is any series of visual images (with or without sound) produced electronically by the use of information contained on any disc, magnetic tape or any other device capable of storing data electronically and shown as a moving picture. It therefore encompasses moving image material supplied on VHS tape, DVD, UMD (a disc for playing films on the handheld Sony PSP games console), games console cartridges, memory sticks or similar, but not moving images which are transmitted to the user via, for example, the Internet or mobile phone networks. A video work is also exempt from classification if, taken as a whole, it is designed to inform, educate or instruct, or if it is concerned with sport, religion or music. Drafted at a time when video games had not advanced far beyond "Pong", "Pacman", and "Space Invaders", the VRA also offers exemption to video games. Exemption is lost if to any significant extent, the work depicts: human sexual activity or acts of force or restraint associated with such activity; mutilation or torture of, or other acts of gross violence towards, humans or animals; human genital organs or human urinary or excretory functions; or techniques likely to be useful in the commission of offences. Exemption is also lost if the work is likely to stimulate or encourage human sexual activity (to a significant extent); or mutilation or torture of, or other acts of gross violence towards, humans or animals (to any extent).

  8.  In performing its classification function under the VRA and in relation to the Licensing Act, the BBFC recognises its status as a public authority under the Human Rights Act 1998 and also acts effectively to ensure that regulated works do not transgress against other pieces of legislation. These include the Cinematograph Films (Animals) Act 1937, which makes it an offence to exhibit a work containing real animal cruelty orchestrated by the film maker; the Protection of Children Act 1978, which outlaws the taking, possession, showing or distribution of indecent photographs or pseudo-photographs of children; and the Obscene Publications Acts 1959 and 1964 (OPA). In carrying out its responsibilities, the BBFC also has regard to whether the material has arisen from the commission of an unlawful act. The BBFC provides a convenient and streamlined single source of authority in considering whether such statutes may have been breached. In doing so, it assists not just the public but also the industry in making available its experience and expertise on possible inadvertent breaches of the law.

  9.  In recent years, particularly with the establishment of Ofcom (the regulator and competition authority for television, radio, telecommunications and wireless communications services), content regulation has been concentrated in fewer hands. The BBFC believes that there is a self-evident benefit in having a diversity of regulation to guard against concerns relating to freedom of expression and other civil liberties: the main forms of regulated, popular, cultural content should not all be overseen by a single, statutory body.

  10.  The form of regulation practised by the BBFC also remains quite distinct from that practised by Ofcom, for reasons which, historically, have derived from the nature of film and video content and the different nature of the media concerned. Up until recently, technological factors (eg the spectrum of broadcast frequencies) have placed a limit on the number of TV or radio services that can operate at any one time, encouraging a requirement that providers must be licensed. Ofcom regulates TV broadcasts, radio broadcasts and radiocommunications by means of making adherence to its codes a condition of the licence. Failure to adhere to these codes may lead to sanctions, or ultimately to the licence being revoked, but there is normally no assessment of the content by the regulator prior to its dissemination. An apparent failure to adhere to the relevant code may be brought to the attention of the regulator through complaints and, in such circumstances, Ofcom will rule as to whether the code has, indeed, been breached.

  11.  There is no technical limit to the number of video/DVD distributors. Perhaps more significantly, film and video/DVD have always attracted a significant amount of content which challenges the limits set by the law and which raises issues relating to harm. In light of the experience of the pre-VRA era, which saw large quantities of obscene material widely distributed, a "light-touch" approach based on post-publication oversight has not been considered appropriate for the UK regulation of video/DVD material. Consequently, the BBFC operates a unique system based on the independent and thorough assessment of content prior to its public release. This is carried out swiftly and efficiently, but nevertheless makes possible a thoroughness of scrutiny, an accumulation of expertise and an authority in advice provision which are not available under purely post hoc regulatory systems.


  12.  The BBFC is currently experiencing record numbers of submissions, mainly as a result of the industry move from VHS video tape to DVD and the resulting submission of back catalogue titles and "added value" material. The past year has also seen a dramatic rise in the number of submissions of video games for reasons that are dealt with in paragraphs 41 to 43.  Overall, in 2005 the BBFC dealt with 16,965 individual submissions, compared with 5,259 submissions in 1997.

  13.  Despite the rapidly increasing workload, the BBFC has dramatically improved its levels of productivity and efficiency over the same time period. Average turnaround times for decisions have fallen to a quarter of their previous level, and successive fee reductions in 2002, 2003 and 2004 have reduced the cost of classification by 30%. The industry has the facility to challenge BBFC decisions by reference to the local authorities (for film) or through the independent Video Appeals Committee (for video works). However, appeals of that sort are exceptionally rare, with just two appeals with regard to video works since 2000.  This low rate of appeal is despite the fact over 10% of new films are given a higher category than that sought by the distributor, and over 23% of pornographic "R18" video works are subject to compulsory cuts (usually to material which is obscene, violent, abusive or non-consensual).

  14.  Productivity gains have not been at the expense of the quality of decision making, which continues to be exercised in accordance with the criteria set out in our published guidelines. These guidelines, introduced in 2000 and revised and updated in 2005, are based on over 90 years of experience and expertise in the regulation of the moving image, and are informed by very substantial research exercises designed to ensure that our policies are broadly in line with public opinion. The latest published guidelines were produced after consulting over 11,000 people across the UK covering all ages and demographic groups. The main outcomes of the research were that overall support for the guidelines had gone up from 59% in 2000 to 63% in 2004.  Support for the guideline criteria had also increased on each of the issues of main concern to the public—sex, drugs, violence and bad language. High levels of public recognition and understanding of current film and video/DVD regulation are also recorded by recent Ofcom research [Language and Sexual Imagery in Broadcasting: A Contextual Investigation by the Fuse Group, Sept 2005] which revealed that viewers differentiated between dedicated TV content and films broadcast on television on the grounds that the films had already been classified by the BBFC and the classification was known. A comprehensive and very recent review of media effects research also concluded that "Public attitudes to film content are, generally, more tolerant than for television. This is partly because the public is also aware of and supportive of, current levels of regulation in film, and partly because people understand the decision process behind choosing to watch violent or sexual content." [Harm and Offence in Media Content: A review of the evidence by Andrea Millwood Hargrave and Sonia Livingstone, Jan 2006]. Viewers clearly regard a properly regulated environment to be a safe environment and appear to have confidence in the regulation provided by the BBFC.

  15.  In recent years the BBFC has also sought to enhance its reputation as centre of excellence in media regulation and related functions, both nationally and internationally. This is particularly evident in the field of media education. For the BBFC, enabling members of the public to make informed choices about what to view, and what to allow those in their care to view, is a fundamental aim. The provision of a clear classification and of some specific content advice for each individual work is a significant contribution but the usefulness of such information is greatly enhanced if the public itself is aware of the nature, purpose and extent of regulation and possesses the critical media literacy tools that allow the information to be used effectively.

  16.  To that end, the BBFC has developed two dedicated educational websites. The first, CBBFC (, launched in 2003, is aimed at primary school children and their carers and teachers and seeks to heighten awareness and understanding of the regulation of the moving image through interactive activities in an appealing and fun environment. During 2005, the site achieved 1.3 million hits resulting in over 34,000 significant sessions lasting, on average, nearly 12 minutes each. The second website, SBBFC (, is aimed at media studies students and teachers and features a range of resources, including case studies of key decisions. It was launched in June 2005 and by November was receiving over 108,000 hits per month resulting in over 6,000 significant sessions per month. Both websites are constantly updated and improved. They also complement the longstanding commitment to make presentations to education establishments on the work of the BBFC, a programme which resulted in around 60 presentations to over 5,000 students (from primary school to University level) in 2005 alone. The BBFC is thus a major player in the promotion of media literacy in the UK, and no media literacy strategy would be complete without adequate treatment of the films, videos, DVDs and video games which the BBFC regulates.

  17.  As required by the VRA, the BBFC keeps an archive of classified works and uses this resource to assist Trading Standards Officers (TSO) in their enforcement role in relation to alleged breaches of the legislation. In many cases, before a prosecution can take place, the TSO must first establish the true classification of the video work, or that the work is not classified, or that the work differs from the version classified. The BBFC provides this information in the form of a Certificate of Evidence, after checking the title on screen against our database of classified titles or, where necessary, by conducting a detailed comparison between the seized copy and the archive copy. In 2005 the BBFC provided Certificates of Evidence for use in court proceedings involving 13,269 video works.

  18.  During 2005, one of the clear intentions of Parliament in passing the VRA was challenged by a number of distributors using the mechanism of the VAC. Eight distributors appealed, claiming that nine explicit "hardcore" sex videos works should be classified "18" and allowed on general sale rather than "R18" with sale restricted to licensed sex shops. The videos were fairly typical "hardcore" fare, featuring close up images of genitals engaged in various consensual and legal sexual acts, and designed primarily for the purpose of sexual arousal. The BBFC vigorously defended the decision to classify the works "R18", engaging leading counsel and arguing that such a classification was appropriate given Parliament's clear intention, the public policy objectives underlying it, and the evidence of public opinion on the issue. The appeal was unanimously dismissed.


  19.  There is inevitably some overlap between the work of the media regulators: films classified by the BBFC for cinema and/or video/DVD release often end up being transmitted on television (and subject to regulation by Ofcom) while successful television programmes and series will often be submitted to the BBFC in order to allow their release on video/DVD. Although the regulators take broadly similar approaches to the suitability of certain types of mainstream content for different age groups (not least because they rely on a common body of research evidence) there are very significant differences in terms of the manner in which the regulation is carried out, and the range of material dealt with on a daily basis. The BBFC would also stress the value of the existence of a diversity of media regulation, not least in ensuring freedom of expression.

  20.  The BBFC believes that much of the trust and respect its regulation commands among the public is derived from the fact that it examines each and every piece of classified material prior to its release, attaches a simple and unequivocal rating based on criteria set out in researched and published guidelines, and provides clear and concise content advice (eg "Contains strong language and bloody violence"). Our classification symbols are instantly recognised and very widely understood, especially by children and those with responsibility for children.

  21.  Beginning in the mid-1990s, the BBFC pioneered the systematic and comprehensive provision of content advice and has persuaded the film, video/DVD, and video game industries to carry the advice provided on video work packaging and film promotional material. The nature of the advice provided is kept under constant review and will be shortly be adjusted in accordance with the results of a major research exercise designed to discover ways in which the wording of the advice might be improved to make it even more useful to the public. The BBFC remains convinced that content advice is best provided by an impartial body, free from commercial considerations, and that a simple but individually tailored sentence deriving from continuous scrutiny is far more effective than a simplistic and rigid system involving numbers or pictograms.

  22.  The material submitted to the BBFC for classification covers a much broader range than that broadcast on UK television, from the mildest of entertainment for pre-school children to the most horrific and exploitative examples of fictional sexual violence and real death and mutilation. Importantly, the BBFC's judgements have statutory force: it is illegal to sell or hire an unclassified video work (unless exempt), or to sell or hire a classified video work to a person below the age specified by the certificate. As a regulator, the BBFC is unique in its experience and expertise in relation to "extreme" material and has developed robust policies and procedures for ensuring that the right to freedom of expression is properly balanced against the need to protect the vulnerable from harm. Two recent examples, both refused classification by the BBFC, illustrate the nature of the trend in "reality" material.

  23.  Bumfights: A Cause for Concern is a US video/DVD work in which the film makers persuade real homeless people, who are often incapacitated through drink or drugs, to fight or take part in dangerous stunts. Some of the incidents result in significant injuries, for instance one man pulls his own tooth out with pliers and another sustains a broken ankle during a fight. Part of the work is given over to a spoof wildlife programme in which the film makers approach homeless men who are asleep in public areas and treat them as if they are wild animals. This typically involves startling, forcibly subduing and then binding their arms, legs and mouths with duct tape. Their physical attributes are then discussed as if they are not human. There is considerable doubt as to whether the homeless men in these sequences are consenting and they appear bewildered, frightened and angry. The film makers were convicted for soliciting an assault during filming and the video is reported to have sold over three hundred thousand copies in the USA. Two sequels have been made.

  24.  Terrorists, Killers and Other Wackos Volume 1 [aka Terrorists, Killers and Middle East Wackos] also appears to have been produced in the USA but features real, documentary material from around the world. The work edits together over 50 minutes of footage of people being killed or seriously injured. The incidents are not put into any recognisable documentary or news context and appear to have been selected for shock value alone, and edited together almost at random. Upbeat music and "jokey" captions (including an onscreen graphic which keeps a running score of the number of "mullet" haircuts seen onscreen) suggest that the primary purpose of the work is to entertain or even amuse but there is little doubt as to the reality of the footage. Sequences include live kangaroos having their limbs sliced off, a man having his arm hacked off, a man being shot in the face but remaining alive for a while with his face half destroyed, people on fire in the Bradford City FC disaster, a dead man being scalped and many similarly horrific images.

  In both cases, the context as much as the detail was crucial to the decision to reject.

  25.  The BBFC is also unrivalled in the UK in its experience in relation to the regulation of sex material. Since the adoption of new guidelines in the summer of 2000, legal material designed to sexually arouse and featuring clear sight of real sex between consenting adults has been classified in the specially restricted "R18" category. "R18" video works can only be sold to adults who visit a licensed sex shop and must not be supplied by mail order. The Ofcom code also specifically outlaws the transmission of "R18" material or its equivalent on UK television. During 2005, the BBFC classified 1285 video works "R18" (including trailers). The type of material classified at "R18" is that informally known as "hardcore". Such works normally feature close up images of genitals during the performance of various sex acts, including oral, anal and vaginal penetration, masturbation and ejaculation. Unlike the "softcore" images commonly passed at "18", in "R18" works there is normally no doubt that the sexual act is being performed for real rather than simulated.

  26.  The regulation of "hardcore" sex material is a particularly difficult and specialised enterprise which is not well suited to a "light touch" approach based on responses to complaints, not least because the audience is unlikely to complain at the excesses. Much of the material deliberately skirts the boundaries of consent, legality, abuse, and harm with the result that the BBFC is forced to intervene with a regularity unmatched in other types of material: during 2005, 23.3% of "R18" features were subjected to compulsory cuts. It is abundantly clear to us that self-regulation would not work in such an area, and would leave serious abuses.

  27.  The modern trend in explicit "hardcore" sex works is to depict sexual activity free from any pretence at narrative or relationships, and to show participants (especially women) being pushed to the very limits of their physical capabilities, often in a group sex scenario. Consensual adult activities are carried out in a manner which ranges in tone from gentle to mechanical to domineering to aggressive to abusive, and the task of establishing at which point to draw the line is not at all straightforward. Many "hardcore" works also play around with notions of consent, youth, innocence, inappropriate relationships, pain and violence in ways which range from relatively innocuous to extremely disturbing. Over the course of years of experience of classifying thousands of "hardcore" submissions, the BBFC has developed policies and procedures which allow for the consistent application of the tests of harm and legality.

  28.  In relation to pornography and harm, the BBFC takes account of the vast and varied body of research evidence and also takes expert advice from specialist psychologists and psychiatrists.

  29.  The legal issues relating to pornography are also complex and include consideration of offences which may have been committed in the UK during filming (eg public indecency, voyeurism), issues relating to privacy (eg private home videos being distributed commercially), and material which may itself be illegal. The latter category includes both indecent images of children and material which might fall foul of the OPA. The question of what might be considered "obscene" in UK law is particularly difficult. In effect, it is up to each jury to decide what constitutes obscenity and the standards not only change over time but also vary from jury to jury and from geographical area to geographical area. The BBFC seeks to avoid classifying obscene material by ensuring that it is up to date with the current application of the law.

  30.  As a result of its daily experience of regulating extreme material in the age of the Human Rights Act, the BBFC has developed significant expertise in balancing freedom of expression against the constraints on such freedom required by UK law in the interests of the public and of society. The BBFC has offered this expertise to the Home Office as it considers introducing a new offence relating to possession of extreme pornographic material. The BBFC's response to the Home Office consultation is available on our website and on request. It deals in some detail with the difficulties of legislating in this area, and offers practical solutions.

The impact of new technology on the established and regulated sphere

  31.  The advent of new technology has always had an impact on the regulated sphere, usually by providing previously unthought-of ways of getting around the rules, either legally or illegally. For instance, long before video the advent of domestic 8mm cine projectors facilitated an under-the-counter trade in "stag films" which would not have been classified for cinema release at that time. It may not be realistic to eliminate all such circumvention, but it does not follow that it will have a serious impact on the ability of the established regulatory regime to satisfy the public policy objectives that led to its creation. However, some developments may herald a scale of circumvention that undermines the efficacy of the existing system. The advent of the domestic video cassette recorder (VCR) was such a development: the sudden, widespread, cheap and easy availability of extreme moving image content, especially to children, with no effective statutory control beyond the clumsy instrument of the OPA, threatened to make a nonsense of the long established regulation of film and television and necessitated the creation of a new framework under the VRA.

  32.  Of course, the regulatory atmosphere is very different in 2006 from in 1984.  Changes in public attitudes and the Human Rights Act have encouraged the BBFC to place more emphasis on classification and the provision of information, and less on censorship for adults. The result is that in 2005, there is simply no gap between what most adults want to be able to see and what the BBFC classifies. For most adults, the facilities offered by new technology and new media to avoid regulation are irrelevant. However, for those who actively seek the most extreme material (including: animal cruelty; real killing, torture and mutilation; sexual violence; violent or abusive pornography) technology and new media certainly offer easy access to the forbidden. The following paragraphs provide real world examples of the challenges the new technology is making to the established regulation of film, video and video games carried out by the BBFC. They are based entirely on publicly available information, and do not claim to give an authoritative or definitive account of the plans of players in the market.


  33.  The rise of DVD in place of videotape does not represent the same degree of change as the advent of domestic VCRs, not least because the DVD format falls squarely within the VRA's definition of a video work, meaning that moving image material is subject to the same regulation whether it is distributed on video tape or DVD. However, the medium of DVD, with its perfect freeze frame images and choice of fast forward speeds has prompted some distributors to exploit a lack of clarity in the law by displaying as still images content deemed unacceptable at the classification awarded.

  34.  Whether such collections of still images can legitimately claim exemption under the VRA has not, to our knowledge, been tested in the courts to date, but it has certainly happened. For example, the Japanese animation Urotsukidoji IV- Infernal Road—Episode One—The Secret Garden, was refused a classification on the grounds that scenes in which adults engage in an orgy of pornographic sexual activity in front of, and at the behest of, child characters were, on the basis of expert psychological advice, likely to stimulate paedophile fantasies to a degree which justified rejection of the work outright. The distributor released a DVD which included a different, classified episode in the series together with a series of still images from the rejected episode (including some of the most contentious images) accompanied by the original soundtrack, claiming exemption for the stills gallery as a separate video work on the grounds that it did not contain moving images. The same apparent loophole allows a distributor of sex material to include explicit "hardcore" stills on a disc rated "18" for general sale when similar but moving images would attract an "R18" classification, limiting sale to licensed sex shops. It is not clear to what extent distributors are taking advantage of the legal ambiguity at present.


  35.  Material cut as a condition of classification can also be posted on a website, with addresses advertised both on the packaging and on the disc itself. The viewer then simply has to visit the website to see the material that was cut under the VRA. A similar scenario was played out by the distributors of Last House on the Left, a grittily realistic 1970s horror film in which two young women are sexually humiliated, raped, killed and disembowelled. The BBFC was concerned that certain sequences in the video work presented sexual and sexualised violence in a manner which raised unacceptable risks of harm and consequently asked for cuts to be made. The distributor appealed to the VAC, arguing that the video work should be passed uncut. On losing the appeal, the distributor released the video work with the cuts made but allowed UK viewers to watch the cut material online (including a woman being forced to wet herself under threat of violence, a woman having a rapist's name carved into her chest with a knife, and a woman's entrails being pulled out). The BBFC has never accepted that the possibility of such website posting of cut material is a valid reason for it to relax its regulatory vigilance, but it would obviously be preferable if such circumvention could be challenged.


  36.  Many UK hotels now offer access to explicit "hardcore" "R18" material via the TV set in guest bedrooms. Hotels are supplying the service on the grounds that, in their view, it falls outside the regulation conducted by both the BBFC and Ofcom. Because no physical storage device (eg a tape or disc) is physically supplied to the guest, the hotels claim that it falls outside the remit of the VRA and so avoids the condition that such works should only be supplied in licensed sex shops. The hotels further claim that the nature of the service also allows them to operate beyond the reach of Ofcom, whose television code forbids the broadcast of "R18" material or its equivalent.


  37.  We have provided a separate note to the committee, on an in-confidence basis, on how such services may seek to circumvent UK law and regulation.


  38.  As noted in paragraph 7, the general exemption for video games under the VRA was drafted at a time when video gaming was in its infancy and the possibilities for content were extremely limited. At that time it was simply not possible to create, or perhaps even to imagine creating, the sort of violent role playing game that has now become commonplace, complete with increasingly realistic representations of human characters and highly detailed depictions of violent and sexual acts, especially on the latest consoles.

  39.  In terms of realism, the gap between conventional live action video material and video games is rapidly shrinking yet the latter may only lose exemption from statutory classification if they depict (or, in relation to sex and violence, stimulate or encourage) human sexual activity or acts of force or restraint associated with such activity; mutilation or torture of, or other acts of gross violence towards, humans or animals; human genital organs or human urinary or excretory functions; or techniques likely to be useful in the commission of offences. In effect this means that unless a depiction of violence is brutal, repulsive or horrific, the video game can claim exemption. In the view of the BBFC this is a very high test which leaves much material which is clearly unsuitable for young children, and which would clearly attract an age restrictive category if submitted, exempt from statutory classification.

  40.  In recent years the video game industry has attempted to self-regulate via the voluntary "PEGI" system (in which video game developers fill in a questionnaire and are allocated a non-statutory rating on the basis of their answers) creating a two tier system in which some games have unenforceable voluntary ratings based on self assessment while others have legally binding classifications based on a thorough examination of the game by independent BBFC examiners. It is notable that since media and political concern about the possible harmful effects of video games was highlighted by the video game Manhunt, the industry has decided to claim exemption for far fewer games than before. This has resulted in a dramatic rise in video game submissions to the BBFC, from 43 in 2004 to 198 in 2005, with the upward trend still very apparent. Unlike the PEGI system, the BBFC's regulation of games is based on extensive sampling and the power to intervene and, if necessary, reject a game.


  41.  The issue of direct weblinks is becoming a significant issue with respect to interactive discs, including video games. It is increasingly common for interactive discs submitted to the BBFC to include weblinks, reflecting the fact that the PCs and consoles on which such discs are played are routinely linked to the internet by ever faster broadband connections. Although the material on the disc is "fixed", the weblink directs the user to a space on the internet and this space can be filled with any manner of material, the nature of which can change from day to day. Although many weblinks are obvious to the user, allowing a conscious choice to be made to enter the unregulated world of the internet, others are "seamless" and it is easy for even an experienced user to be unaware that what is on screen is unregulated internet content. The result is that an interactive disc rated "12" or "PG" may lead directly to online material which is wholly inappropriate for children, material which may not have existed when the disc itself was classified. It is likely that many parents are completely unaware of the possibilities created by weblinks.


  42.  Video game players are now commonly offered, via the internet, downloadable "patches" or enhancements which are free from regulation and which significantly alter aspects of the regulated, retail version of the game. A parent may buy their child a video game classified "12" on the basis that the violence is bloodless, only for the child to download a "patch" which adds blood every time a violent act is depicted. The changes brought about by the "patch" may take it beyond the limits of the classification category awarded to the original disc. The existence of such "patches" was widely reported in relation to the game Grand Theft Auto: San Andreas, the fastest selling video game of all time (one million copies sold in nine days). In this case a "patch" downloaded from the internet allowed the player to see a sex scene which was written into the code of the classified retail disc but which was otherwise impossible to access (and which had therefore necessarily been invisible to BBFC examiners at the time of classification). "Patches" may be provided online by the games developers or by "amateurs" with no links to the makers of the game. They may also be sold as retail discs, attracting BBFC classification if exemption is not claimed.


  43.  In the view of the BBFC, regulation of the moving image has demonstrated its social usefulness over many decades. Effective regulation gives the public information that empowers them to make appropriate viewing decisions for themselves and those in their care, and helps to protect vulnerable viewers and society from the effects of viewing potentially harmful or unsuitable content while respecting adult freedom of choice. Far from being a burden upon industry, the best regulation provides media industries with security, confidence and public trust, and helps to protect providers of moving image content from inadvertent breaches of UK law.

  44.  The rapid development of new media platforms for delivering moving image material, and the fact that content provision on those platforms has often been global or regional in nature, has meant that effective national regulation has been largely absent. Although many new media companies operate their own content standards and means of control, it is not clear that these are understood or used effectively, especially by those with responsibility for children. Indeed, in many cases where technological solutions are offered, children appear to be more capable of controlling the viewing of parents than vice versa. After researching the effectiveness of PIN protection systems with regard to subscription TV services, Ofcom concluded that the currently available systems were not sufficiently effective in preventing underage access to allow "R18" equivalent material to be broadcast under any circumstances.

  45.  Of course, there are legal controls, including offences relating to the distribution and possession of indecent images of children, but beyond this very serious area of concern, existing legislation struggles to make an impact, either because the means of distribution falls outside the legal definitions of regulated media such as television, video/DVD and film, or because the source of the material is outside the UK. The result is something of a free-for-all, in which the best efforts of self-regulation are undermined by both the lack of a consistent form of regulation and the vast amount of unregulated material available. This leaves the public poorly equipped to make informed choices about their viewing, and the viewing of those in their care. It also leaves children open to exposure to material that is clearly unsuitable for them, with consequent risks to their well being and to the well being of society in general. Real examples of the possibilities for unregulated viewing offered by new media are discussed below.


  46.  A feature of the latest 3G mobile phones is the ability to view high quality video clips and the mobile phone operators are making available a wide range of video content to paying customers on dedicated and branded portals. In the future this is likely to include full features and well as short clips. The type of content ranges from sport (eg Premiership goals) and soap operas to clips from horror movies and of simulated sex. "Hardcore" pornography, featuring close up images of genitals during the performance of various sex acts, may start to appear, even if major players set their faces against it. The industry has set up its own content board which uses a binary system which identifies content as either for general access or for adults only. New phones are barred to material rated "adult only" until the user establishes that they are over 18.  It is not clear how effective this form of self-regulation will be as the operators have little or no experience of video content regulation and phones are routinely passed on to younger family members. The self-regulation also only applies to material provided directly by the phone operator.

  47.  When mobile phone operators provide audio-visual content as part of a mobile TV channel (ie where content is broadcast to phone handsets in a schedule controlled by the content provider) they are subject to regulation by Ofcom, but the phones are also designed be used to access the Internet, and material accessed in this way is not subject to any regulation. As a personal possession, carried in a pocket or bag, it is very easy for children to access inappropriate material using a mobile phone without a parent or carer being aware.

  48.  Mobile phones also enable video material to be viewed in public places, for example on a bus or train, risking unwanted exposure to material which is offensive, disturbing or age inappropriate. The same risk is present with portable DVD players but the ubiquity of mobile phones makes the problem potentially much larger in scale. The ease with which the latest mobile phones allow users to download Internet clips (eg of hostage beheadings) or to create their own videos (eg of sexual encounters) exacerbates the problem.

  49.  Bluetooth technology, which is free to use and available on most new mobile phones, also makes it very simple for friends to swap video clips between mobile phones, and children's charities have already expressed concern over the ease with which pornographic video clips can be passed from phone to phone in the playground. A child using a phone with Bluetooth technology could also receive unsolicited video clips from an unknown adult nearby. If the video clip was of a lewd act then investigation of the incident would be hampered by the lack of an audit trail (in contrast to e mails, phone calls and text messages).


  50.  The latest version of Apple's best selling portable music storage device allows for the storage of video clips as well as music and still photos. Unregulated video clips can be downloaded from the internet with ease and viewed anywhere and with anyone.


  51.  Software exists, and is easily available online, which enables internet users to share video files with users who are not known to them, in much the same way as "Napster" allowed the sharing of music files. Using a "Kazaa" or a BitTorrent server, a PC user can gain access to video clips stored on the computers of other users of the software. Such sharing is usually without charge so lacks even the flawed proof of age afforded by a credit card transaction. Moreover, such sharing can be undertaken on the family computer without any of the signs (eg an entry on a credit card statement) that might be left by a commercial online transaction.

  52.  Google have recently made such peer to peer activity much easier with the launch of "Google Video" ( in January 2006.  This enables individuals (or companies) to upload clips to an online video store where Internet users can view them online or download them for future use. Previews can be viewed for free and much content is free to view in full. Only "premium" content must be paid for. Google's conditions of service prohibit pornography, invasions of personal privacy, promotions of hate or incitements of violence, and the company claim that both human and software-based censors vet the content. However, such measures did not prevent video content very similar to reality footage rejected by the BBFC being available. This included: footage of a bloody, bare-knuckle, unlicensed boxing match between two men in a backyard; a 17-minute film of violent altercations between women, with the combatants egged on by a crowd of onlookers, and ending, in one instance with a teenage girl appearing to have been knocked unconscious; and footage that purportedly shows a suicide bomber blowing himself up on a busy street.


  53.  This submission has already touched upon some of the issues that arise from the connection between classified video games and the internet, by way of weblinks and "patches". Of equal concern is the way in which the internet allows gaming to take place completely on line, and this is a feature which is actively promoted by the industry. A whole class of games, known as "Massively Multiplayer Online Role-Playing Games" (MMORPGs) are specifically designed to be played online between a great number of players who are otherwise unknown to each other and may involve content which would attract an age restrictive classification if submitted for classification. Such games often involve taking the role of a character who engages in acts or violence or sex, at the instigation of the player. If the code that enables the individual to play the game is located online rather than on a disc or other physical storage device then it arguably falls outside the current remit of the VRA, though the law is not clear. With games becoming increasingly realistic it is possible that online gamers may soon be able to play games which would be rejected if submitted for classification under the VRA.

  54.  Video games also lend themselves to constant review and improvement, as "bugs" in the code revealed by wide use are ironed out and enhancements are offered, often in return for payment. Unlike a feature film, a game may not have a final version but will instead be capable of evolving almost constantly. When distributed as a disc or similar, enhanced versions require a new classification (unless exempt) and a whole new physical product must be manufactured and shipped to shops and customers. Not surprisingly the industry regard physical product as a cumbersome means of delivering the code to games players and Microsoft, a leading player in the industry, has already announced its intention to sell games for its X Box 360 consoles via downloads from the Internet rather than on discs in the future. A similar outcome is likely for the upcoming Sony Playstation 3.  Such a development would lift games out of statutory classification altogether and has already started to happen: the video game Half-Life 2 was available to download online before it was released as a disc classified "15" by the BBFC.


  55.  Long heralded as the new media application that would kill video tape and DVD, this form of delivery has so far failed to encroach upon the mainstream video/DVD industry which, as noted earlier, continues to thrive. However, the major obstacles to its uptake as a commonplace means of accessing film content and similar are likely to decrease in size in the near future. The ability to download the material in a high quality format, in short time periods, and without technical hitches improves almost daily and in time the deciding factor may be the business models of the main providers of content (especially the major Hollywood studios). Currently DVD provides the major revenue from a film production but VOD has already begun to be offered after the initial DVD release of a major film (as another stage in the release schedule, alongside TV rights) and both BT and Sky have announced plans to launch broadband Internet VOD services which will feature major films. In the long term, it is possible that VOD might replace DVD altogether.

  56.  Internet based VOD services would not be covered by the existing regulatory regime and could quickly become a mainstream means of accessing the full range of moving image material currently classified under the VRA. With the BBC launching Internet VOD services for its popular TV programmes, public interest in using this facility, and commercial interest in providing content in this way, may rise dramatically in a short space of time.

  57.  The sex industry, which often leads in finding profitable business models in new media, is already offering a vast range of VOD services and many in the industry are privately predicting that, given the restrictions that apply to the sale of "R18" videos and DVDs, the UK adult video industry will soon be a predominantly online industry, free from regulation under the VRA. Already those intent on accessing the most worrying types of pornography can use VOD to do so. For example, a consumer, wishing to view the uncut version of an "R18" DVD, from which the BBFC has ordered the removal of scenes of abusive and violent sexual activity, can log onto the US production company's website, from where the original, uncut version of the work is available electronically. The customer has the choice to: "stream" the video (watch it on a high speed connection as it is downloaded); save the whole video to his hard drive and watch until he deletes it, or its digital licence expires; or burn the file to a DVD. Unless the individual was intending to publish the material (thus bringing possession within the scope of the OPA) or underage participants were involved (engaging the Protection of Children Act), no offence would be committed. The unregulated market in Internet pornography offers material which goes way beyond that permitted in BBFC classified "R18" works, and routinely features scenes in which women are made to gag repeatedly as they perform deep throat fellatio, are depicted as underage children, or are subjected to violence or other forms of abuse. In the view of the BBFC, the production of such material is likely not only to risk harm resulting from its consumption, but also to risk harm to those who perform in it.

  58.  There are many different types of "adult" Internet VOD services, including live sex webcams in which viewers pay to see a performer follow their instructions, but common to all is the lack of independent regulation and the difficulty in establishing over the Internet the age of the purchaser of the material. The industry standard is to rely on possession of a credit card along with a self-declaration as proof of age. Unfortunately, the possession of a credit card is no longer reliable evidence of age. Leading credit card companies offer a service in which an adult account holder can purchase additional "pre-paid" cards for use by children as young as thirteen. The card is "topped up" as one might "top up" a pay-as-you-go mobile phone and as long as there are sufficient funds deposited, the thirteen year old can use the card exactly as an adult would. Some parents clearly see this as a convenient way of paying a child an allowance but an online business has no way of knowing that the cardholder is thirteen. The only check is that the transaction will eventually show up on the adult account holder's statement, though whether this will enable the adult to identify age inappropriate purchases of pornographic material is debatable.

  59.  Other websites offer more ghoulish fare, including uncensored video footage of real killings and mutilated corpses. For example ( offers, among dozens of video clips of gruesome accidents and murder victims, video clips of British hostage in Iraq Kenneth Bigley pleading for his life and being beheaded. The site is sponsored by, and has hyperlinks to, various Internet sex sites offering explicit, "hardcore" sexual content, a combination of real violence and real sex that raises still further the level of concern about the effect the material might have on viewers. The site can be freely accessed by anyone who is prepared to tick a box saying they are 18.


  60.  This submission has attempted to set out some of the issues which have arisen, and which are likely to arise, from the provision of moving image content in, and via, the new media, concentrating in particular on the gaps that have arisen in the regulatory framework established by Parliament in a technologically different age. In doing so, it has concentrated on the potential for these gaps to undermine the existing regulation of film, video, DVD and video games if they are not dealt with. It must be emphasised, however, that the point at which the unregulated new media overwhelms the regulated sphere is still some way off and the BBFC is committed to finding ways in which the benefits of the independent regulation it specialises in can be offered to providers and consumers of currently unregulated moving image content. To that end, the BBFC has commissioned leading industry analysts Screen Digest to undertake research intended to deliver valuable insights into the way the new media is moving and the sorts of services the BBFC might be able to offer.

  61.  Without prejudice to the outcomes of that research, the BBFC is convinced that models of regulation, including co-regulation, can be developed for the new media and is keen to play a part in closing the gaps in the current system. The BBFC is widely recognised as a trusted guide to moving image content, has much to offer in the way of experience and expertise, and has already been approached by new media companies, including major mobile phone operators, video game developers and video on demand providers, seeking advice and assistance in creating an environment in which consumers can choose moving image content with confidence. At present, these initiatives are rather piecemeal and it is likely to take a lead from Government to ensure that a critical mass of new media providers make full use of the regulatory services on offer.

  62.  It is worth noting that the current EU proposals for amending the Television Without Frontiers Directive would, if adopted, require the establishment of basic rules for "non-linear" audiovisual services delivered over electronic communication networks (including Internet based video-on-demand). In particular, Member States would need to take appropriate measures to ensure that audiovisual services under their jurisdiction are not made available in such a way that might seriously impair the physical, mental or moral development on minors; and that they do not contain any incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. We make no comment here on the desirability of the latest version of the proposals, which have been criticised. Our point is, rather, that any sensible approach to the issues set out in this memorandum will benefit from the expertise which the BBFC has built up.

  63.  Of course, arguments will be put forward in favour of models of pure self-regulation. Such regulatory frameworks have advantages in certain circumstances but often struggle to attain necessary standards of understanding, trust, effectiveness, accountability, independence and respect for freedom of expression. A major European Commission funded study of existing modes of media regulation [Self Regulation of Digital Media Converging on the Internet: Industry Codes of Conduct in Sectoral Analysis—by the Programme in Comparative Media Law and Policy, Oxford University Centre of Socio-Legal Studies, PCMLP-IAPCODE] looked in depth at the various regulatory frameworks used in regulating broadcasting, Internet content, computer games, films, and mobile phone services, particularly across the EU. It identified significant weaknesses in many current models of self regulation, especially in relation to Internet content.

  64.  The existing use of "trust marks" (logos indicating that a website has been certified by a self-regulatory body) is rendered rather ineffective by very low levels of knowledge and trust, with just 10% of EU citizens aware of trustmarks in 2003.  In addition to low brand awareness, monitoring of compliance is rarely proactive, and sites are very rarely removed from a trust mark scheme. Without government intervention, or the threat of government intervention, and without independent oversight, it is doubtful whether the industry will of its own accord devise and fund a trust mark system which is both commonly used by content providers and widely recognised, understood and trusted by the public.

  65.  The PCMLP-IAPCODE study also set out in detail how the particular legal framework within which Internet service providers and Internet search engines operate has led to negative consequences arising from the operation of self-regulation through "Notice and Take Down" procedures. This is the system whereby service and content providers remove or block access to illegal material when it is brought to their attention. There is no doubt that, especially in the UK, this mechanism has led to the removal of a great deal of harmful material, indeed, in 2003, the Internet Watch Foundation recorded over 25,000 incident reports. However, such successes mask inherent weaknesses.

  66.  In general, service providers and search engines are not legally liable for the content of material accessed using their services. They are treated as a mere "conduit" (in the same way as a telephone operator is not held responsible for the content of a phone call). However, when a service provider or search engine obtains actual knowledge of illegal content then they are usually legally obliged to remove it or to prevent consumer access to it. Legally speaking (we make no comment on the actual policy intentions of individual players), it is therefore in the interests of service providers and search engines to be as ignorant as possible of the content being accessed using their services, because if they do not know then they cannot be held liable. This is known as the "see no evil, hear no evil, speak no evil" effect and one consequence has been an increase in the number of unmoderated chat-rooms as major players such as Microsoft and AOL have closed down moderated chat-rooms for fear of being liable for the content posted by users. This cannot be in the interests of children.

  67.  "Notice and Take Down" schemes depend upon reports of illegal content from Internet users, via dedicated "hotlines". Even the most successful are hampered by a lack of public awareness, with a European Commission "Eurobarometer" survey of 17,000 citizens revealing that, in 2003, just 5% were aware that illegal or harmful material could be reported to a hotline, with just an additional 8% aware that it could be reported direct to the Internet service provider.

  68.  The "Notice and Take Down" system of self regulation can also have negative consequences for the right to freedom of expression, as it encourages Internet service providers to block access to material when notified by a third party without carrying out any independent assessment of whether the material is, indeed, in breach of the law. This amounts to censorship without transparency, without accountability and without any means of appeal or redress (except through the courts).

  69.  It is possible that some form of co-regulation will emerge as the preferred solution in many circumstances. Such schemes combine the advantages of self-regulation with the trust, accountability, effectiveness and concern for civil liberties that comes with independent regulation. In such a scheme industry players would regulate themselves under the supervision of a respected independent regulatory authority, backed by statutory powers if necessary. The role of the independent regulatory authority might be to audit the regulatory procedures put in place by the industry, to draw up codes and guidelines, to rule on complaints, and to impose sanctions when required.

  70.  With regard to the more extreme material, it is possible that stronger controls may be preferred. In its response to the Home Office consultation on the possession of extreme pornography, the BBFC proposed making material classified by the BBFC exempt from prosecution under the proposed law, in order to remove uncertainty over exactly what material might be found to be illegal to possess in different parts of the UK (it being left to individual juries to determine whether material was indeed "extreme pornography" as defined). Such an approach would encourage prior regulation of the most contentious material and would have obvious advantages for Internet providers of material which was intended for robust and broadminded adults but which nevertheless came close to the limits of acceptability in relation to the law. It is not without precedent in the EU: in Sweden, an official classification protects the distributor of a video or DVD from prosecution under the Penal Code for pornography or violence.

  71.  Alternatively, where the new media is merely delivering formerly regulated content by other means, independent classification and content advice, modelled on the proven formula of film and video/DVD classification, might be appropriate. Finland have taken a lead in this regard, incorporating Internet "movies-on-demand" within the same framework as that used for films delivered by more traditional means.

  72.  Looking back at the history of media regulation, it is clear that the precise form of the regulation has been dictated by the nature of the medium and the mode of delivery. With no spectrum limit on the number of providers of content, and with private citizens able both to pay for and consume the media content in private, the Internet poses a unique challenge as the normal points of control in a public space simply do not exist. There is no doubt that the new media provide great opportunities for innovation, commerce, art, research, etc, but with those advantages come disadvantages. These include easy access to material which is illegal, harmful or otherwise unsuitable, including by children and by disturbed adults who are likely to be affected in ways which are contrary to the public good. As the uptake of broadband grows rapidly, access to inappropriate content by children and vulnerable adults is bound to increase. Proper regulation would help to minimise the risks without compromising the real and substantial benefits that the technology provides. Indeed, regulation which enhances trust in the Internet as a safe place may act as an incentive to consumers considering engaging in social, cultural, political and commercial transactions online.

  73.  No one agency can provide a single, ready-made solution, and the divergence of interests both among industry players and between the industry and the public make it unlikely that a satisfactory regulatory framework will emerge without the coordinating hand of Government. Independent regulatory authorities are also bound to play an important role if trusted and effective regulation of new media is to be achieved. However, in the interests of civil liberties, care will need to be taken to avoid creating a single mega-regulator with too much control extending over too many means of communication.

  74.  What is required is a coordinated and systematic approach, drawing on the different areas of expertise to be found in a number of regulators and other bodies, in which the major new media industry players and the regulators come together to devise a coherent set of solutions. Such an approach is unlikely to develop unless it is driven by Government, the only agency that has an overview across all aspects of new media, technology and the public policy concerns that underlie all types of media regulation.

  75.  The BBFC believes that its long experience of regulating moving image content in a non-linear environment and, in particular, its unique experience in regulating explicit, hardcore pornography and other extreme material, gives it a skillset that may be of significant use when considering a set of solutions for regulating the new media. Should the committee decide to recommend the establishment of a forum drawing together the key stakeholders in an effort to find the best regulatory solutions, the BBFC would very much like to be involved. The BBFC would also welcome any other opportunities to provide further assistance to the committee and to be involved in any future developments.

20 February 2006

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