Censorship’s Lack Of Appeal

The British video censorship appeals process has always been set up to be as difficult and costly as possible – and new ‘simplifications’ do little to change that.

Unless you are particularly obsessed with the fine points of British film censorship – as we at The Reprobate are, of course – then you’re probably fairly unfamiliar with the Video Appeals Committee (VAC). It’s not something that is talked about very much, despite being at the centre of perhaps the biggest cultural censorship shift in British history when the upholding of appeals brought by two adult movie distributors effectively led to the legalisation of hardcore porn in the UK. You can read all about that here.

The VAC was set up as part of the Video Recordings Act in 1984 in a sop to video distributors who rightly worried about the British Board of Film Classification being given the job of judge, jury and executioner when it came to censorship. As the name suggests, the VAC exists to sit in arbitration when distributors disagree with BBFC decisions – a supposedly neutral body, even though the BBFC oversaw who was appointed to it. Since 1985, there have been just eighteen appeals – notable ones include the aforementioned R18 hearings, the Last House on the Left case and the very first case when British softcore producers Strand International successfully appealed against the R18 awarded to Stag Show Girls (because the BBFC had considered mud wrestling to be ‘sexual violence’).

There has not been a hearing since 2007 and in the words of the BBFC, “we believe that this speaks to the effectiveness of our internal appeals process.” Before anyone gets to appeal to the VAC, they first have to get a second opinion from another set of BBFC examiners. There are no available statistics about how many reconsiderations are requested and how many of them result in a different opinion. Somehow, I doubt that the latter figure is all that high. In any case, there are probably more practical reasons why no one wants to appeal against decisions.

Until recently, an appeal would cost £5000 plus VAT – and that’s before you factor in any legal fees that a company might accrue. Notably, both the Last House on the Left and R18 cases saw David Pannick – now Baron Pannick – acting for the labels and he is not cheap. If you win, you get a refund, but it’s still a major gamble. Given the average sales figures for indie label releases – and make no mistake, no major label will even consider arguing with the BBFC these days – an appeal is likely to swallow up any profits that a release might make; more to the point, it would likely turn a small profit into a huge loss. And that’s if you win. The R18 case feels like a line in the sand – an acceptance that the BBFC was out of step with societal mores. It was a case that the Board was secretly glad to lose because it allowed overdue liberalisation while taking the responsibility for that liberalisation off their shoulders. The Last House on the Left case – and the failed attempt to push non-violent hardcore into the more commercial 18 category – is rather more pertinent, especially for the cult labels looking to release ‘difficult’ movies. Given the combination of cost and the probability that the ‘great and the good’ of the VAC – which included children’s TV producer Biddy Baxter and children’s author Nina Bawden – might not appreciate the film in question, it’s perhaps no surprise that labels have tended not to see the VAC as a practical process to go through. Certainly, I know for a fact that the UK distributors of Human Centipede 2 wanted to appeal the film’s initial ban and subsequent heavy cuts but abandoned the plan on financial grounds. Notably, the most recent appeals have been from video game producers who have both more to spend and more to lose from a ban. In the case of Manhunt 2, the BBFC initially refused to accept the VAC’s decision to overturn their ban and took the case to judicial review, where the decision was overturned; the VAC then reconsidered and again overturned the ban, at which point the BBFC finally allowed the game to be released. But just how much the whole experience cost Rockstar Games is unknown – but it seems likely that the idea of the Board appealing against the decision and dragging the case on at great time and expense has probably not done much to encourage further appeals.

So we might welcome the BBFC’s new announcement that the costs of appealing are now being halved, to ‘just’ £2,500 (plus VAT of course). However, the other changes just announced to the appeals process might raise eyebrows. To quote the BBFC’s letter to distributors:

We have streamlined the process by removing the requirement that VAC hearings be held in-person and by drawing the membership of the VAC from the child-welfare experts who sit on the BBFC’s independent Advisory Panel on Children’s Viewing.

Well. The benefits of an in-person hearing were obvious – appeals were structured much like a court case, with both sides arguing their case and expert witnesses allowed. Now, both parties – the distributor and the BBFC – simply submit written arguments as to they believe the decision is right/wrong and why, but there is no hearing; the VAC members meet online to make their decision. Some might think that this will be very much to the BBFC’s advantage, given that ‘expert’ claims cannot be effectively challenged. The R18 case, in particular, seemed to hang on the BBFC’s own expert being carefully demolished and her ‘evidence’ exposed as nothing more than supposition.

Furthermore, having all the members of the VAC being child welfare experts – who already advise the BBFC – seems a bit off, given that pretty much every appeal has involved films and games aimed entirely at an adult audience. Can we really expect a panel that advises on children’s viewing to suddenly switch and consider things strictly from the likely effect on adult viewers?

There are still unanswered questions beyond this. In the past, the VAC has refused to look at other BBFC decisions – which we might think are relevant in terms of setting precedents for allowing certain content – because they are only judging the film in question. Even obscenity trials allow defendants the opportunity to prove that their material is no worse than what is legally available and it’s hard not to think that this decision (one of the many, many WTF moments in the whole Last House case) is to avoid embarrassing the censors.

Interestingly, the BBFC has framed the VAC as the opportunity to appeal against specific age ratings, perhaps pretending that they no longer ban or cut movies – something that we know to be far from true. It’s also a fact that some films, even now, are simply never submitted to the censors or picked up for UK release because distributors know that it would be a waste of time. all this goes unchallenged because – naturally – no one outside of Redemption Films is willing to piss away thousands on test cases to change the rules. It’s not in the interests of any UK distributor to appeal unless they have an inbuilt revulsion for censorship and want to make a point – and most labels don’t.

Yes, most films now pass uncut – but if companies simply accept cuts and bans when they do occur without question or appeal, it gives more unquestioned, unaccountable power to the BBFC – and it is never healthy for censorship to go unchallenged.

DAVID FLINT

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