Is the UK film industry about to see the implementation of new, liberal classification standards – and the removal of some of the last taboos from film-making. Or is the acquittal of Michael Peacock last Friday, on charges of distributing obscene DVDs depicting a range of allegedly nasty stuff (including fisting, erotic urination and heavy-duty sado-masochistic activity) no more than a false dawn? A setback for our more moralistic censors – but in reality no more than a temporary blip?
Police, Crown Prosecution Service and the BBFC have acknowledged that they must now get together to discuss what to do next.
The unhappy reality is that far from this being a victory for those who want less restriction on film and cinema, the law and the current political climate mean that this is at best short-term tactical gain, at worst, the prelude to a rolling back of the more liberal climate in film that has been abroad for the last decade or so.
To understand the risks now facing British film-makers, it is necessary to understand how the current complex legal edifice for the regulation of film hangs together – and how it impacts on what gets made and distributed.
Let’s start with general exhibition of film. This is governed partly by the Obscene Publications Act, which makes it an offence to publish or distribute film that “tends to deprave or corrupt”. The process of working out what might fall foul of the law is managed formally by the British Board of Film Classification who, despite their pre-eminent role in this area, are not legally responsible for what is exhibited.
They were formed in 1912 – almost precisely a century ago – to protect the nascent film industry from accusations of corrupting public morals, as well as to preserve it from death by a thousand cuts, from myriad local authorities all applying different standards. Because without a state body in place to regulate film – and parliament has been reluctant to create such – film-makers were always going to be vulnerable on both these issues.
Even so, and despite statutory acknowledgement of the BBFC’s role (in Section 3 of the Cinematograph Act 1952) , individual councils can still refuse to accept its view: most famously with widespread bans on The Life of Brian, as well as bans on Crash by a handful of councils.
Still, the BBFC effectively sought to enforce “morality” in films by enforcing the OPA: how did they know what to cut, given that there are no hard and fast rules as to same? Simple: they ask the police and Crown Prosecution Service who have, over the years, developed a list of what they believe a jury would find obscene; and the BBFC neatly fall into line behind these.
Taboo topics, from the CPS guidelines, include torture, perversion and bdsm.
This has not led to major cuts in mainstream film (or "mainstream" porn) – though mostly not because the BBFC is wielding the cutting room scissors selectively widely, as because the cannier, cost-conscious directors have simply self-censored. If you know that the BBFC is likely to block your film because its content is on a checklist of stuff not to show, why bother adding that content in the first place.
Thus, there have been occasional spats implicating this guidance – not least in respect of female ejaculation which, the BBFC claimed, was merely urination and therefore (see above) out of bounds. Not so, argued back feminist porn producer Anna Span, who famously took on the BBFC on this issue and won.
Otherwise, though, the films that have suffered most at the hands of the BBFC have been cut (or rejected) in line with the Video Recordings Act (1984/2010) which requires videos (and DVDs) to be regulated. The VRA also contains statutory reference to the BBFC, who are named as the certifying body for regulatory purposes. This – in respect of their issue with DVDs – is where A Serbian Film and Human Centipede II, not to mention nf713, have fallen foul of the law. For unlike the OPA, which references moral standards, the VRA regulates material that has the potential to “cause harm”, although in the view of Professor Julian Petley of Brunel University, ‘harm’ is most certainly understood to include moral harm.
Somewhere in there is an entire debate about why films that show Daniel Craig killing people don’t have that potential, whereas films that show fisting using five fingers (as opposed to the industry accepted four) supposedly do have that potential. But for now it is worth just being aware of that legal fact.
It also highlights a possible tactical error on the part of police and CPS in this latest case: had they brought prosecutions for the DVDs not being certified and being potentially harmful, they might have won. But they didn’t.
Last but by no means least in this legal spaghetti is the law on “extreme porn”, which makes the possession of certain imagery (bestial, necrophile or highly sado-masochistic) unlawful unless granted classification by the BBFC. So, again, these DVDs quite possibly fell foul of that law – but the BBFC can’t call that particular law into its thinking when seeking to classify film, because …whether it falls foul of the law or not depends on whether they give it a classification...so the logic would be circular!
Where does that leave us? The Peacock verdict is not binding: it sets no precedents, according to the CPS. However, it does push the entire edifice of film classification into serious disarray, since the BBFC position, hitherto, has been that the CPS have a pretty good idea of what would be considered obscene by a jury.
Clearly they don’t: and equally clearly, film producers who have argued that the BBFC is wrong just meekly to accept the CPS view have a point and will be emboldened. 2012 is likely to see more fisting, “golden showers” and heavier-duty sado-masochism, and it's hard to see the BBFC resisting without risking a re-run of the absurd R18 affair.
But it is unthinkable that the moral majority will not strike back. The OPA was always a figleaf: a pretence that the UK was well-defended against moral turpitude, when it wasn’t. With that shown to be a hollow threat, expect “disgusted of Tunbridge Wells” to strike back in two possible ways: by arguing for an extension of the extreme porn law so the BBFC must take it into account before classifying; and by forcing the BBFC to apply the doctrine of potential harm much more widely.
Neither will be good for film-making. Both are now very much on the cards.