Ongoing court case re legality of hardcore DVDs in Ireland
Thanks to Anthony who emailed John Kelleher, the Irish censor
A Further exchange of emails added 6th May 2008
Dear Mr. Kelleher,
You may recall I e-mailed you last year asking you to tell me what was the current legal status of R18 UK classified DVDs in the Republic of Ireland.
You replied that you could not so do, because, inter alia, your office was a party to High Court proceedings concerning that very issue.
I assume that those court proceedings have been resolved, one way or the other, by now, given that over a year has passed since then.
So, would you tell me what the "official position" is on this issue, please ?
Indeed I might remind you of your own statements in an
interview with Gerry McCarthy of The Sunday Times newspaper (2nd July 2006) stating support for "good wholesome shagging" in the context of DVDs etc.
You go on to say: The biggest change is a recognition that people who are 18 are adults,
they should be able to make up their own minds. Our role would be to advise, a consumer guide."
Well I, an adult, am directly asking you for the above said "advice" on this material's legal status in this jurisdiction.
John Kelleher replied:
I have no difficulty in responding to your question regarding the current legal status in Ireland of DVDs classified R18 in the UK. The position is that irrespective of whether a DVD may be classified R18 or otherwise in the
UK, it cannot not be distributed in Ireland without a certificate from this Office.
My reluctance to comment did not relate to that question but to others which touch on the legal case referred to, which is, in fact, still before the courts. The High Court judgment of Mr. Kevin O'Higgins in December 2007, which found in favour
of this Office and the Censorship of Films Appeal Board, has since been appealed to the Supreme Court.
Update: Sex Shop Legislation Being Considered in Ireland
May 6th 2008
Anthony emailed again and John Kelleher replied with answers interleaved and shown coloured in maroon:
Anthony: Dear Mr. Kelleher,
I'm afraid, however, that your answer leaves me more confused than I was before.
Perhaps you misunderstood my question, I wasn't asking if a British BBFC R18 certificate was legally valid in the Irish Republic - I am aware that all videos rented or sold here and issued after Sept 1993 need a certificate from your office.
My question was whether video content that was consistent with the R18 category was likely to receive a certificate from your office or not.
John Kelleher: I cannot at present envisage a situation where video content consistent with the UK's R18 category would receive a certificate from IFCO. As you know, unlike the UK, where
adult shops are licenced by local authorities and access to R18 material is strictly monitored, Ireland does not have licenced adult or sex shops. It will be a matter for the Oireachtas to determine whether this may change.
Anthony: In other words is consensual non-violent, "couple friendly" explicit sexual material going to be granted a, (presumably 18) certificate, or not ?
John Kelleher: That is not 'in other words'. The circumstances which determine a certificate may vary.
Anthony: I believe a cert was granted to 9 Songs , so the degree of explicit sexual detail would not seem to be the sole criterion in deciding whether a cert can be granted. In effect, the cert granted to 9 Songs shows that
hardcore images are not legally "obscene" in the Republic.
John Kelleher: As with 9 Songs , the degree of explicit sexual detail was not the sole criterion. The key is context. In fact, the cert granted to ' 9 Songs does not, as you
say, show that 'hardcore images are not legally 'obscene' in the Republic'.
Anthony: There's a second question which is related - What is the legal position of personal imports from the UK or indeed elsewhere in the world ?
John Kelleher: The Video Recordings Act 1989 makes it an offence to import into the state a video work for which a prohibition order is in force.
Anthony: If one should order by mail order a dvd featuring this content from abroad, is the importation of this dvd "distribution" in the meaning of the Act of the Oireachtas that you're working under? I refer you to the Video
Recordings Act 1989, which governs the control and regulation of the supply and importation of video recordings. If it is, would the shop or the recipient, or both, be considered to have breached the Act?
John Kelleher: See preceding paragraph.
Anthony: If as seems likely (judging by your office and the Appeals Board's actions in the High Court case you refer to), the Irish Film Censor's Office has decided to keep what the man in the street would call "hardcore movies"
effectively illegal -by denying such videos a certificate - that would seem at odds with your professed statement to let adults decide for themselves.
John Kelleher: I don't believe it is at odds but for reasons stated above, I do not wish to comment at this time.
John Kelleher: I have given answers, in so far as I can, to some of the questions you raise.
Because, as previously mentioned, there is a relevant case before the Supreme Court, it would be inappropriate for me to comment on some aspects of these matters. Likewise, there is amending legislation going through the
Oireachtas currently, and perhaps further changes to censorship legislation in prospect, so I wish to reserve my opinion until such time as it may be sought in that regard.
Anthony: His reference to amending legislation going through the Oireachtas (S. Irish Houses of Parliament) is intriguing.
My guess would be that they intend requiring sex shops here to have a licence, but not that they intend to allow them to sell hardcore dvds, in effect the pre-"loosening up" R18 situation in the UK. I may be wrong, perhaps they intend
to copy the UK regulations, but my experience says otherwise. I'll enquire further about this legislation.
The line that doesn't mean that hardcore images are not legally obscene is an amazing statement. I mean presumably the ones contained in that particular film, 9 Songs , aren't obscene, or is the Film Censor breaking the law?
Court review of Irish Censor's depraved ban of Anabolic Initiations 5
Note that in the UK, Anabolic Initiations #5 was passed R18 after 4m 11s of cuts with the following BBFC comment: Cuts required to sight of man throttling woman during explicit sex scene, and to sequence in which a woman appears
to be distressed as she is held roughly by the hair and gags while performing fellatio.
Has the legalisation of R18 tended to deprave and corrupt British viewers? Of course not. And of course the same applies to Irish viewers. The Irish censor is talking through his arse and putting his own opinion above the available evidence.
It is about time these people started producing some of these depraved and corrupted viewers that they are so worried about. There are probably 100's of millions of people that have watched hardcore. You would think the moralists could
demonstrate depravity and corruption by now.
A case which came for hearing before Mr. Justice Kevin O’Higgins in the High Court in November 2007 was relevant to certain issues relating to censorship legislation.
On 13th April 2004, the Film Censor, John Kelleher had issued a Prohibition Order in respect of Anabolic Initiations #5 , which had been submitted for certification by Jacqueline Byrne, because in his opinion the viewing of it would
tend, by reason of the inclusion in it of obscene and indecent matter, to deprave or corrupt persons who might view it. Notice of the Prohibition Order was published in Iris Oifigiúil on 16th April 2004.
On 11th June 2004, the applicant gave notice of appeal against the Prohibition Order.
In processing the appeal, which involved protracted correspondence with the applicant’s legal advisers, the Censorship of Films Appeal Board agreed to two oral hearings and acceded to a request that additional time be made available to the
applicant so that expert evidence could be sought and submitted.
On 11th July 2006, the Censorship of Films Appeal Board upheld the decision of the Film Censor.
On 24th July 2006, the applicant applied to the High Court for a Judicial Review seeking, inter alia, to set aside the decisions of the Film Censor and the Censorship of Films Appeal Board.
At the hearing of the case before Mr. Justice O’Higgins, the issues netted down to whether or not sufficient reasons had been given to justify the decision and to comply with fair procedures. This issue concerned both the response of the Film
Censor to the Board’s request to him for a statement in writing of reasons and to the affirmation by the Board of the Film Censor’s decision and, in particular, whether the reiteration of the grounds set out in the Video Recordings Act 1989 was
sufficient. It was contended by the applicant that insufficient reasons for the failure to certify the video work were given, that this gave rise to a breach in fair procedures as she did not know why the work was refused and that this in turn
limited her ability to challenge the decision - for example, on the basis of irrationality.
The constitutional challenge to the relevant sections of the 1989 Act was not pursued at the hearing. Mr. Justice O’Higgins delivered his judgment on 21st December 2007. He states in his judgment that it is apparent that the Film Censor can only
refuse to grant a certificate declaring a video work fit for viewing if he is of the opinion that the work is unfit for viewing on very specific grounds set out in Sec. 3 (1) (a) or (b). The Court found that the reasons given in this case by the
Film Censor informed the applicant of the specific grounds on which the decision was made and were sufficient.
The Court stated that just because a statement of reasons follows the wording of a Statute does not render an adequate reason into an inadequate one. Accordingly, the Court found that sufficient information was conveyed to the applicant in
relation to the decision to refuse to certify the work, such that she could form a view on whether or not to challenge the decision. Accordingly, the Court found that there was no basis on which the Film Censor’s decision (affirmed on appeal)
should be quashed.
A notice of appeal was served in late December 2007.
According to the Irish Censor's annual report 5 works were banned in 2007.
Perhaps most notable, but previously covered in detail, was the ban on the video game Manhunt 2 . The censors wrote:
Manhunt 2 was prohibited under the section of the Video Recordings Act 1989 which refers to acts of gross violence or cruelty (including mutilation and torture)..
IFCO recognizes that in certain films, DVDs and video games, strong graphic violence may be a justifiable element within the overall context of the work. However, in the case of Manhunt 2 , IFCO believes that there is no such context, and
the level of gross, unrelenting and gratuitous violence is unacceptable'.
In addition the censors banned 4 adult DVDs citing their usual unbelievable bollox:
I said to the Irish Censor, about a year ago, that the assistant censors were largely female, and married (or had children) or were older, and that all three of these factors had been shown to give a predisposition towards censorship.
He had the nerve to question my basis for saying that!
5 minutes spent reading the public research on either the BBFC or Ofcom websites would convince anybody of that, quite apart from it being plainly obvious to anyone who has talked about these issues to these different groups or just has a grasp
of real life.
Of course I was on the wrong tack, what I didn't know back then was that the assistant censors were largely picked for their present or past membership of the Fianna FÃ¡il political party!
In addition, despite the appeal by Shauna's Adult shop over Anabolic Initiations No.5 to the Supreme Court still not having been resolved, the police here are still seizing adult dvds on the basis that they don't have a certificate from
IFCO which IFCO refuses to grant, of course.
But the censor told me that they were just called in by the police to adjudge whether a seized video was something that would be classifiable or not, ie just an expert witness which is also the BBFC official line.
The sections to do with censorship are sections 9 and 10.
It amends the law on cinema certification and dvd certification, reaffirming as it does so, a ban on a cinema certificate if the film contains blasphemy , something I raised with the censor as they clearly just copied the phrases used in
the Censorship of Films 1923 Act.
The (Irish) Video Recordings Act 1989 in contrast talks about stirring up religious hatred which isn't quite as bad, or out of date as a concept if still objectionable on free expression grounds.
National Archives show minister for justice Alan Dukes clashed with attorney general John Rodgers over access to the film censor's historical files.
In 1986 Kevin Rockett, then academic and chairman of the Irish Film Institute , wrote to attorney general John Rogers to say he had been refused access to the film censor's files, even for films of the 1920s, by then minister for justice Alan
Rogers wrote to Dukes saying that he did not see the legal basis on which access to the files, especially for films made 30 years or more previously, could be resisted or refused.
A month later, Dukes responded that over the years, censors and ministers for justice had always considered themselves precluded , on the basis of breach of confidence, from disclosure of information on films.
Further letters ensued and eventually the files were opened following a long struggle. Rockett told The Irish Times that a fter a long and frustrating campaign he eventually convinced the Official Film Censor in 1998 to transfer the more
than 100 volumes of film censorship material to the National Archives.
Rockett wrote Irish Film Censorship: A Cultural Journey from Silent Cinema to Internet Pornography in 2004, with the help of those files.