Makin' Whoopee

 The R18 Story: Chapter 2

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Makin' Whoopee

The R18 Story, the legalisation of hardcore: Chapter 2: Summer 1998

The BBFC had experimented with hardcore snippets throughout the middle of 1997.

JackBoots Straw stopped this experiment later in the year but not before Makin' Whoopee had been promised a certificate. When the certificate was not forth coming the distributors appealed.

The appeal was heard in the summer of 1998 and caused more controversy...


  July 1998

R18 StoryThe BBFC issued a press statement with the headline Video Appeals Committee In Surprise Obscenity Decision. This revealed the  news that an R18 video certificate has been issued for a video containing snippets of hardcore. Of course this decision is little do with BBFC who were by now bound by Jack Straw's repressive reading of the Obscene Publications Act. Instead the Video Appeals Committee were to thank for a more enlightened view of the law.

Makin' Whoopee DVD coverThe story started last September when the distributors, Sheptonhurst (associated with the Private Shop chain), submitted their video Makin' Whoopee for an R18 certificate. This 1997 video was made in the US by Jace Rocker. It has a vague storyline about advertising executives pursuing a movie star for a product endorsement. The video submitted video was not the original version and had presumably been pre-cut to R18 standards.

At the time of submission, the BBFC were issuing R18 certificates to videos with explicit but brief hardcore. The BBFC indicated that the video would be passed uncut via an 'interim clearance form'. Sheptonhurst went away to produce their release publicity and packaging etc based upon this information (eg to add 100% hardcore on the cover). To make matters worse, the distributor had also purchased similar titles on the strength of this interim information. By the time final certification was due, Jack Straw had stepped in with his own repressive view of the Obscene Publications Act, This left the BBFC with little option but to suggest the usual extreme and commercially damming cuts. Feeling justifiably peeved Sheptonhurst went to appeal with a persuasive set of arguments.

Sheptonhurst argued that:

  • The video contains only heterosexual and lesbian sex. It is completely consensual and non-violent. There is no hint of stronger sexual material.
  • The BBFC had originally accepted the legality of the video by the issuance of the interim R18 certificate and Sheptonhurst had purchased additional titles on the strength of this information.
  • The BBFC had issued certificates to similar material which have never been prosecuted by the authorities.
  • Just because the BBFC had received new instructions from the Home Office it does not mean that these necessarily reflect a correct interpretation of the law.

The BBFC argued that:

  • Potential viewers may include children who may be harmed
  • The video contravenes the Obscene Publications Act (because Jack Straw says so, the BBFC didn't think so last year)
  • There exists small print to say that an interim certificate is not binding

The Video Appeals Committee unanimously decided that the video work is not obscene within the terms of the Obscene Publications Acts and that it should be granted an R18 certificate.

  August 1998

BBFC logoAs soon as Sheptonhurst were notified of the outcome of the appeal, the appropriate certification forms were returned to the BBFC for signing. The BBFC began stalling for time presumably as they were referring back to their lords & masters at the Home Office.

  September 1998

Old BaileyThe distributors finally had to start pursuing their elusive certificate via the legal process. They called upon the high court to issue a Writ of Mandamus which would compel the BBFC to issue the certificate. This is an order (I think) used to deal with people or organisations that refuse to comply with legal processes.

The distributors obtained a date to visit the High Court which was to have been on the morning of Monday 14th September The BBFC finally capitulated with a few minutes to spare at the close of play on Friday 11th September. They finally faxed through the signed certificate.

The distributors of Makin' Whoopee are rightfully trying to capitalise on their successful appeal for an R18 certificate. On the day after the appeal they submitted four further titles to the BBFC  containing similar strength material including some hardcore footage. And guess what, these were issued with the usual stupid cuts list and so started another story.

  Pregnant & Milking 5

Pregnant & Milking DVD coverAnother R18 story from this time was that of the BBFC's change of heart towards a series of mild fetish videos featuring pregnant and lactating women. The first four in the series of Pregnant & Milking videos were passed 18 but Pregnant & Milking 5, containing similar material, proved personally distasteful to Whittam Smith and was therefore classified R18. Unfortunately for the distributors, this certificate precluded their usual mail order business so they appealed against the decision. Even more unfortunately for the distributor, the Video Appeals Committee turned down their appeal by a vote of 3-1.

The appeal highlighted a number of predictably alarming trends. First of all it must be emphasised that the video is strictly softcore. The only addition to the usual sexless material allowed by the BBFC is that some of the participants were pregnant and a couple of scenes showed milk spraying from breasts. The BBFC contended that reasonable people would find it offensive to have the video generally available even to those over the age of 18. I don't know who on earth gives the BBFC the right to speak on behalf of reasonable people. In fact the BBFC admitted to being deeply divided on this particular decision and it was the new president that swung the decision.

The appeal also showed a serious deficiency in the law in that R18 certificated videos are not allowed to be sold by mail order. This seems a strange constraint as one of the principles of the R18 certificate is that it keeps films out of the public gaze. Mail order seems ideal to uphold this requirement. Both the BBFC and Video Appeals Committee agreed with the need to relax the law on this point and showed a certain sympathy for the distributor who has basically been screwed by bad and increasingly discredited UK law.



Legalisation of R18 Hardcore  Chapter 1: Jacking Off the Censor Hardcore snippets temporarily got BBFC approval in 1997
 Chapter 2: Makin' Whoopee in Summer 1998
 Chapter 3: Rumours of a Return to Porn in November/December 1998
 Chapter 4: Porn is In & Out & In & Out Again the state of play in January 1999
 Chapter 5: The Video Appeals Committee Forcing the BBFC to respect the law, May 1999
 Chapter 6: Censoring Safer Sex Discrimination at the BBFC. May 1999
 Chapter 7: Hiding Behind Children Giving up on obscenity and using concern for children, July 1999
 Chapter 8: The VAC R18 Appeal Report from the VAC Appeal, July 1999
 Chapter 9: An Appealing Victory Video Appeals Committee judgment allows hardcore, August 1999
 Chapter 10: The Censor and the State BBFC seek Judicial review, winter 1999/2000
 Chapter 11: Judicial Review Confirms Legality of Hardcore: Spring & Summer 2000
 Chapter 12: More Sex Shops Required according to Andreas Whittam Smith, November 2000
 Chapter 13: The Legalisation of Hardcore: A recap 1997-2000

 

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