Video Recordings Act 1984 (Exempted Video Works) Regulations 2014

Lord Bates Excerpts

Monday 28th July 2014 Grand Committee

Moved by

[Lord Bates]

That the Grand Committee do consider the Video Recordings Act 1984 (Exempted Video Works) Regulations 2014.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments

[Lord Bates (Con)]

My Lords, protecting children from inappropriate content is vital. We must ensure that consumers have the information they need about the age suitability of video products. For 30 years the Video Recordings Act 1984, which I shall call “the Act”, has helped address these important issues.

Under the Act, certain video material supplied to the public as physical products—for example, DVDs or Blu-ray discs—must be classified by the British Board of Film Classification and appropriately labelled. The public are accustomed to seeing the familiar BBFC age ratings on these products; and retailers are used to ensuring that they do not sell or rent products with BBFC “12”, “15”, “18” or “R18” classifications to anyone younger than the age on the label. It would be an offence for them to do so.

There is now a significant gap in these protections, which the Government aim to address with the regulations. Currently the Act allows for exemptions for video works that are primarily about music, sport or religion, or are designed to inform, educate or instruct. Unless they contain specific types of strong material, such videos do not have to be submitted to the BBFC, do not require any age labels on their packaging and can legally be supplied to any age groups. These exemptions have been in place since the Act was first introduced, when legislators could not have envisaged the wide variety of video works that we see today. A large proportion of video works released in these genres are still family friendly. However, in 2014 we see, for example, sports DVDs containing strong violence, and music DVDs featuring highly sexualised performances and lyrics. This means that children are at risk of exposure to harmful content.

This was picked up by, for example, Reg Bailey in the government review, Letting Children be Children. Responses to a public consultation on the issue overwhelmingly supported changing the exemptions so that in future products in the exempt genres must by law be classified by the BBFC if they are unsuitable for children. By that, we mean children under the age of 12.

These regulations set the exemption threshold at a lower point than at present, so that music, sports, religion and education-themed works in future must be classified if they contain any material that would be classified as BBFC “12” or higher. Video works in these genres that are suitable for young children will remain exempt.

The regulations work by listing depictions which, if featured in a product, will mean that it must be submitted to the BBFC. These relate to, for example, the use of violence, sexual themes, self-harm and other dangerous behaviours that might be copied by children. The definitions were drafted in collaboration with the BBFC to accurately match the standards that are used in practice. Industry stakeholders indicate that they are comfortable with them. However, to guide businesses that may in future be deciding whether their music, sport, religion and education video work must be submitted for classification, the BBFC is creating an online resource that will include extracts from previously classified films to illustrate the various definitions more clearly. The Government ran a full public consultation on the policy over 2012 and 2013, and consulted industry stakeholders and other groups during the period. Many responses were received and they have informed the regulations that are before the Committee today. Officials will monitor the impact of the regulations and the Government are also committed to carrying out a formal review of the policy three years after its implementation.

The Video Recordings Act 1984 covers only offline, hard-copy recordings. However, the Government are committed to ensuring that more online videos are also age-labelled. I welcome the increasing use of the BBFC’s voluntary classifications for online videos, and I am particularly pleased that the music industry and the BBFC are now working together on developing plans to pilot age ratings for online music videos using the same standards that are set out in the regulations.

In conclusion, these regulations will make a real difference to child protection and consumer confidence. They will ensure that hard-copy music, sport, religion and education videos coming on to the market in the future cannot be supplied directly to children. Consumers will be very clear about the nature of the material contained in these products and parents will be able to make more informed decisions about the products that they wish to allow their children to view. I commend the regulations to the Committee.

[Lord Alton of Liverpool (CB)]

My Lords, while I was a Member of another place, I promoted an amendment to protect children from gratuitously violent video material. Happily, an alliance of Members from across the political divide came together and we persuaded the Government of the day of its merits. Ultimately it was down to your Lordships’ House to then incorporate that amendment into law, which it did. It will come as no surprise, therefore, that I warmly welcome the Bailey review recommendations for a new approach towards protecting children from adult content in music videos, and I welcome what the noble Lord, Lord Bates, has said today, especially about extending the criteria and the logic of these regulations to online as well as offline material.

I would like particularly to mention an issue that I have raised with the noble Lord, Lord Gardiner of Kimble, on previous occasions, and that is the use of suicide sites. That has led to deaths, including the death of a child at a school where just a few months ago I gave out the school prizes. The child had visited one of these sites and had taken their own life. Indeed, the headmaster of that school told me subsequently that five other students had also been visiting the same site. This is not an abstract or theoretical question.

Perhaps I may turn specifically to the regulations before the Committee. I have to say that it perplexes me that any exempt DVD, be it for music, sport, religion or education, should have been able to show any of the depictions which are listed in the criteria set out in paragraphs (a) to (n) of proposed new subsection (1ZA) of the 1984 Act. Whether we are talking about suicide or self-mutilation, the use of illegal drugs and other very inappropriate imagery, these are all either objectively present or not. If they are, the DVD in question should not have been exempt. However, the depiction listed in paragraph (o) prompts some concern, and is the paragraph to which I should like to draw the attention of the Minister and the Committee. It states that a work is not exempted if,

“(o) it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation, or otherwise”.

Unlike the other depictions I have referred to, this depends on a very subjective category which is heightened by the fact that paragraph (o) makes it plain that “intent” and “extent” are completely irrelevant. At a time when there has been an increase in illiberalism and intolerance towards people of faith, it is not difficult to imagine that any religious DVD could cause offence to someone. Something that is violent or hateful and encourages such behaviour would in any event be covered by other statute. When we consider that according to the wording of paragraph (o) it does not matter whether the creators of a religious DVD intended it to cause offence and that it does not matter how minor the offence is, these regulations seem to threaten implications that the Explanatory Memorandum makes plain are simply not intended. As currently drafted, the regulations may well move us from one pole where no religious DVDs are rated to a place where as a matter of practice all religious DVDs will need to be rated.

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[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very interesting and important debate, although a relatively brief one. Many important points have been made to which I am sure the Minister will respond.

I broadly welcome the direction of travel represented by these regulations but have some questions and reservations which I am afraid are slightly at variance to those we have heard already. I worry a lot about restrictions being introduced on another creative activity even though I understand the dangers that may be exposed by that, but it is important that we bear that in mind.

First, we are exercising censorship of what may appear in front of people who wish to buy it, albeit it is obviously a restricted class, through a private company—the BBFC. I am not sure that we quite understand what the relationship between the BBFC and the Government is at the moment. It has changed a lot in the last 20 or 30 years since I was last involved in it. If the Minister has the information to hand, will he reflect on such matters as whether there is a formal memorandum between the Government and the BBFC in terms of their operations? Will the Government exercise control over the appointment of its board and other related matters? It is important to have that in context so that we understand the impact that these regulations may have. I have a general concern that the Government should not expropriate functions and responsibilities which should be exercised through Parliament to private corporations without providing serious reasons and explanations.

Of course, noble Lords will recollect that the 1984 Act was passed at a time of particular concern about videos. I think that the term “video nasty” was widely used. The regulations that were brought out were perhaps a reaction and, in some senses, account for why the BBFC is in its present form. However, times have moved on. As I will come to in a few minutes—and as referred to by other speakers—we have to be sure that what is being proposed now has a fitness and longevity that will be appropriate for the fast-changing nature of the technology which it is attempting to arrange.

I was glad to hear that the Government will be reviewing these regulations within three years. As the Minister said, that is a good thing, although a number of the points and questions raised by noble Lords already suggest that some of the issues are more important and might need more attention before then.

My first point, therefore, is about the status of the body that is being entrusted with the regulations that we are considering. My second point concerns the question of format. We are talking about video material in physical form. The impact, perversely, is largely on the purchasing decisions of people who are under 12, given that that, to a large extent, is the focus of the regulations. My personal view is that a very small number of citizens of this country who are 12 or under are going to be purchasing the videos we are talking about. I am interested to know whether the Minister has any figures relating to the likely impact on the market. If it is anything like what happens in my household, these children are much more adept at the virtual world and will be seeking out the information they wish and the material they want to watch in a non-physical form. We have talked about that issue; we still lack any real, credible strategy in relation to it. This particular set of regulations, although long promised and arriving at an interesting time, is in fact missing the boat in relation to where the majority of the viewing public are going to be—certainly those under 12.

My third point concerns the question that has been raised to some extent by the problem of the wording of the regulations, which seek in a curious way to specify the carve-out, not by putting down a simple principle about what would and would not be considered, but by listing in exhaustive detail the sort of things that would create a break across the various guidelines.

In its briefing for this meeting, the BBFC made it very clear that it was concerned that there was no blanket requirement that all video in physical form should be subject to BBFC review. It has a point and I would be interested to know on what basis the Minister has decided—I think I am right, but, again, I would be grateful if the Minister could confirm it—that the onus for submitting material to be classified will still lie with the producers of the material. Therefore it is possible that those who are producing material that perhaps is veering towards the boundary of the 12 certificate may take a view that the material does not fall within the new, enlarged carve-out. Would that constitute a defence in any court proceedings that might be brought forward as a result? The guidelines are only guidelines. The discrepancy between what the BBFC is saying and doing in practice and what is now going to be in the regulations in paragraphs (a) to (o) is going be a problem, not least because the BBFC—rightly so, although the timescale is slower than I would have liked—tries to keep in touch with the views of the public it is serving by carrying out triennial surveys and consultation with people about whether the guidelines it is currently using need to change and, if so, to what extent.

The regulations contain a set of statements, some of which, as has been said, seem to be rather loosely drafted. The noble Baroness raised the question of religion, but some of the drafting concerning sex and violence is equally culpable. Yet we will also have, by the time these regulations are in mid-flow, a new set of guidelines from the BBFC about where it thinks the boundaries of the 12 certificate are going to be. Can the Minister explain how we are going to reconcile that change?

It is perhaps not as important an issue in reducing the threshold from 18 and R18 to 12, but it is well known in the world of classification that, in Britain, we have an obsession with language, which is in stark contrast with, for example, the Nordic countries, which have a very different view of these matters. We are relatively relaxed about physical violence and a bit squeamish about explicit sexual activity, including sexual violence. It is almost the reverse situation in the Nordic countries. A lot of this will lie in education. The real remedy to this issue is making sure that parents take responsibility for what their children see and understand, and talk to them about what they do. To take examples from the list (a) to (o), how on earth are people to judge whether something includes,

“words or images intended or likely to convey a sexual message (ignoring words or images depicting any mild sexual behaviour)”—

a point picked up by the noble Baroness, Lady Howe? How are they to judge whether it affects,

“an animal that exists or has existed in real life”?

How far back do we want to go? The same goes for whether a human is being represented in proper description or in matchstick format. These can be very trivial or very difficult matters and should not take us away from the importance of making sure that children are not unreasonably exposed to images that they should not receive. On the other hand, I think that there are ways of doing it. It might have been better if the approach taken had been to try to work with what the BBFC has published as its principal guidelines without attempting to define them in a way that is bound to cause trouble.

Those were my three points, but as I said at the start of my speech, I am not against the direction of travel. I shall look forward to hearing the Minister’s response.

[Lord Bates]

My Lords, I am grateful for noble Lords’ comments and questions. Once again, we find an instrument that drifted through the other place with the mildest breeze of comment and scrutiny coming up against the deeply entrenched expertise that your Lordships’ Committee has shown today. I counted some 16 specific questions that noble Lords asked me to address. I shall do my best to do that, but I suspect that I will need to write, because a considered reflection might be useful and a fair response to the legitimate concerns that have been raised here today.

Let me go through as many of the points as I can, so that we might get at least some comments on the record. As I say, I shall write to noble Lords and expand on them. The noble Lord, Lord Stevenson, asked whether distributors would understand the definitions well enough in deciding whether to submit a product to the BBFC. The definitions are fairly detailed. Terms such as “mild” are long-standing features of the BBFC’s classification guidelines and are familiar to many video distributors and consumers. To help further understanding, the BBFC is preparing new guidelines specifically for industry, which will include clips from previously classified films to illustrate how definitions might be interpreted.

On the nature of the relationship between the Government and the BBFC, the BBFC is designated by the Secretary of State to classify video works. It is an independent body, but it is required to make an annual report to Parliament. Many noble Lords have welcomed the review after the regulations have operated for three years as being a sensible way forward, so that we might see from day-to-day experience whether fears are borne out in practice. Corrective action can be taken at that point.

Under the regulations, music, sport and education-related themed products will lose their exemption. This was the area that many noble Lords focused on. The latest guidelines issued by the British Board of Film Classification were produced after a major consultation exercise involving over 10,000 people. The listing, categorising and wording reflect what came forward from the consultation process.

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[Lord Alton of Liverpool]

Can the Minister tell us how many children comprise that 10% who are not covered by the filtering at present? What is the actual number? Also, when do the Government intend to bring forward measures to make compatible these various criteria for offline and online? How long must we wait for that to happen?

[Lord Bates]

The noble Lord asks a very pertinent question, but I do not necessarily have the numbers at my fingertips to be able to provide him with the pertinent answer. I will endeavour, after the Committee, to get some further information on that.

My noble friend Lord Clement-Jones asked why this took so long. This was a long process because of the consultation. I understand that we are getting some criticism from colleagues who say, “Have you actually got this right? Have you actually talked to people? How is this actually going to work in practice?”. However, we also get criticised for taking too long because we are consulting too much. This is always a difficult balance to get right, but we totally understand the point about promises that have been made in the past and need to be honoured. These measures are doing that and, we hope, doing it in a way that is actually going to work.

The noble Baroness, Lady Howe, asked whether the condition in new paragraph (o) in the regulations is set too low. The industry, child protection organisations and other organisations supported the regulations, including the definition in new paragraph (o) as drafted. The Government will monitor how the regulations work in practice.

The noble Lord, Lord Alton, asked why we cannot refer to BBFC guidance. Section 2A(6) of the Act allows regulations to refer to guidance when it comes to conditions relating to video games. We do not have a similar power in respect of guidance for video works, which these regulations address.

Also on new paragraph (o), as with sport, music and educational products, video works primarily about religion will lose their exemption from classification only if they contain any of the material set out in the regulations. It will be for the BBFC to determine how they should then be classified. The BBFC is already experienced in making classification decisions about religious themes—for example, when they appear in films. The noble Baroness, Lady Howe, asked whether people might take offence at hymns et cetera. I accept that the question needs to be addressed, but I cannot quite see that BBC box sets of “Songs of Praise” are necessarily going to come within the ambit of the Act. However, again, we have to be careful with the wording to ensure that that does not happen, that we catch the material that we want to catch and that we do not inhibit the excellent material that we want to see more widely viewed.

The noble Lord asked whether the BBFC guidance is inconsistent with new paragraph (o). The BBFC guidance applies in respect of those works that it is to classify, while new paragraph (o) applies in deciding whether a work should be classified. If a work is caught by the condition, BBFC guidelines will then be applied to decide, on objective grounds, what classification it can be given, including, for example, U.

I have tried to respond to most of the questions that have been raised and I again thank noble Lords for sharing their expertise and their concern to ensure that these regulations work in practice as they are intended to do. I undertake to write to noble Lords with further reflections on the points that have been made. With that, I commend the regulations.

Motion agreed.