Judicial Review

In September 1999, the BBFC bosses announced they were seeking Judicial Review of the VAC decision because, in the Board’s view, it is based on a definition of harm which is an incorrect interpretation of the Video Recordings Act. The VAC judgement, if allowed to stand, would have fundamental implications with regard to all the Board’s decisions, including those turning upon questions of unacceptable levels of violence.

We had to wait until May 2000 for the Judicial Review to be heard in the High Court. It was well worth the wait as the landmark ruling declared that the film censors were wrong to ban the sale of the explicit hardcore porn videos in licensed adult sex shops in Britain. Mr Justice Hooper dismissed the test case brought by the BBFC, saying that the risk of the seven videos involved being seen by and causing harm to children was, on the present evidence, insignificant.

July 18th proved to be a remarkable day in British history. It was the day when the British Board of Film Classification (BBFC) accepted the judgement that hardcore pornography was legal and that it should be made available to adults through licensed sex shops.

The BBFC issued a carefully worded press release which meant that practically every US or European hardcore video may now be sold in the UK uncut. At first people were worried that perhaps there would still be limitations. It soon became clear that this was not the case, anal sex, double penetrations, gang bangs and facials have all been passed unscathed.

The updated BBFC guidelines are presented below:
 

The following content is now to be permitted for both heterosexual and homosexual activity: Aroused genitalia Masturbation Oral-genital contact including kissing, licking and sucking Penetration by finger, penis, tongue, vibrator or dildo Non-harmful fetish material Group sexual activity Ejaculation and semen. The following content is not acceptable: Any material which is in breach of the criminal law Material likely to encourage an interest in abusive sexual activity (e.g. paedophilia, incest) which may include depictions involving adults role-playing as non-adults The portrayal of any sexual activity, whether real or simulated, which involves lack of consent The infliction of pain or physical harm, real or (in a sexual context) simulated. Some allowance may be made for mild consensual activity Any sexual threats or humiliation which do not form part of a clearly consenting role-playing game The use of any form of physical restraint which prevents participants from withdrawing consent, for example, ball gags Penetration by any object likely to cause actual harm or associated with violence Activity which is degrading or dehumanising (examples include the portrayal of bestiality, necrophilia, defecation, urolagnia)

Customs finally joined in the process when they relaxed their guidelines in September 2000. It is therefore now permissible to import hardcore from abroad, bizarrely enough though, this concession does not apply those that like S&M or fisting. The Customs prohibition on these still appear to be absolute. The latest Customs guidelines are as follows:

Customs has now revised its criteria for assessment of obscene material. This follows a judgement by the court of appeal which led the BBFC to publish new guidelines for its issue of R18 certificates. Customs will therefore no longer seize material depicting sexual activity between consenting adults which falls within the BBFC published guidelines. This will avoid conflict with The Human Rights Act, and existing European legislation and will sustain our policy of seeking to maintain common standards as accepted by the courts, and other enforcement agencies. Sexual acts which are excluded from the BBFC criteria for R18 certification will continue to be considered obscene. This includes anal and vaginal fisting, urination, defaecation, sado masochism and bondage. We will also maintain controls on material involving children or animals, and also material depicting rape, excessive violence or animal cruelty. Customs explained more in response to a letter

Customs explained more in response to a letter:

In answer to your questions I can confirm that Customs has now revised its criteria for assessment of obscene material. This follows a judgement by the Court of Appeal which led the British Board of Film Classification (BBFC) to publish new guidelines for its issue of R18 certificates. Customs will therefore no longer seize material depicting sexual activity between consenting adults which falls within the BBFC published guidelines. This will sustain our policy of seeking to maintain common standards as accepted by the Courts and other enforcement agencies. Sexual acts which are excluded from the BBFC criteria for R18 certification will continue to be considered obscene, this includes anal and vaginal fisting, urination, defaecation, sado-masochism and bondage. We will also maintain our controls on material featuring sexual activity involving children or animals and also material depicting rape, excessive violence or animal cruelty. We have submitted an amendment to the HM Customs website to reflect the new guidelines which will be included when the site is next updated. The change in guidelines applies to both personal and commercial imports. However, you may wish to note that it is an offence to commercially distribute videos which do not hold a BBFC certificate under the Video Recordings Act. Therefore, commercial importations of uncertificated videos may attract criminal proceedings by the police or Trading standards Officers. We do not distinguish between material imported personally or via the post. However, it is also an offence to distribute uncertificated videos through the post on a commercial basis. You may also wish to note that the change in guidelines is not limited to videos or DVDs but also applies to all visual material including books and magazines. HM CUSTOMS & EXCISE Counterfeit & Pornography Enforcement 2

The legalisation process created remarkably few waves. The Daily Mail seemed to accept the situation with more of a sense of resignation rather than any inclination to campaign against the changes. Politicians have wisely decided to say very little about changes.

In fact the BBFC guidelines were so well pitched at an acceptable practical compromise that they have become the defacto standard for all of the enforcement agencies. Furthermore the guidelines have been adopted for use in other media. The interpretation of obscenity has been set according to accommodate the R18 rules. This definition has then been applied to both traditional and web publications. Hardcore magazines are therefore available in high street newsagents and hardcore websites may now be hosted in the UK. Perhaps a notable exception is that of the broadcast media. We have yet to see a hardcore satellite, cable or terrestrial broadcast. There is no law against porn on TV but the regulators still have rules which prohibit hardcore. No doubt these will be challenged in time but in the meantime the British Government has at least backed off from prohibiting foreign satellite broadcasters from selling to the UK.

Surprisingly there has also been little effective campaigning from nutters. Mediawatch UK, the revamped National Viewers and Listeners Association, have made a few ineffectual mutterings but they understandably prefer to take issue with broadcast TV rather than sales via sex shops.

The viewers seem happy enough with this status quo in that they can watch the vast majority of films without undue interference yet the regulators are happy in that there is still a little material that they can cut, ban and prosecute.

For example, by 2002, the BBFC had awarded over 1000 R18 certificates for hardcore videos yet they still found about 90 to cut. The most notable cut to date is to Young Gushers . This sex film was cut by a stonking 95 minutes. The BBFC say that 50 minutes were removed beyond that which was strictly necessary but it is still a hefty cut. The BBFC detailed several reasons for the cuts but the must unusual was the removal of penetration involving a power drill. They justifiably think that this may constitute sexual activity with potential for physical harm.

Other common reasons for cuts were for throttling, gagging, hair pulling, spitting, fisting and urination during sex.