Hardcore in Ireland

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.

Yours sincerely,
John Kelleher

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.

Yours sincerely
John Kelleher.

Comment: intriguing

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?

I decided to fire off some more questions to the Southern Irish State Film Censor, John Kelleher.

Here are a few news articles covering some of the film censorship developments over recent times.

This one is particularly interesting, and depressing. At least the censors hired by the BBFC aren't selected on a party political-jobs for the boys basis.

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 Fáil 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.

This article says that it's IFCO sending them in.

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.

Other articles:

• 750-pornographic-dvds-seized-in-dublin
• gardai-seize-8000-adult-movies-in-raids
• This article mentions 76,569 illegal dvds seized in 2007 and 62,724 so far in 2008, although it's not clear whether these figures mainly comprise hardcore dvds or pirate Disney movies etc.

There is now a new act, the catchily named Civil Law (Miscellaneous Provisions) Act 2008 . It is available online as a pdf

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.

This new law was reported in the press:

• new-powers-set-to-tackle-illegal-dvd-trade
• This supine, non-critical article about the name change was published.
  film-censor-ditches-nanny-state-image

I have received a reply from the censor but I want to follow up some of his answers so I'll send you more when I have it.