A Recap

 The R18 Story: Chapter 13

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The Legalisation of Hardcore: A Recap

The R18 Story, the legalisation of hardcore: Chapter 13: 1997-2000

The Story of the Legalisation of Hardcore in Britain

Published in The Flesh & Blood Book Compendium edited by Harvey Fenton

Flesh & Blood cover

R18 StoryIn the spring of 1997 a refreshing waft of fresh air escaped from the BBFC offices in Soho Square. For the next few months it quietly permeated the sex shops within the immediate neighbourhood. A westerly breeze built up over the summer months which headed out towards the Fleet Street gutters. The fresh air sped onwards largely unpolluted and things were looking up for the air quality forecast. The autumn winds were not so favourable and unfortunately started to blow towards Westminster. The fresh air faded as it came in contact with distinctly lavatorial odours emanating from the Home Office. It was finally extinguished under an enormous pair of jackboots and the perennial London smog returned. So began the UK's first venture into the legal sale of hardcore porn.

The 1984 Video Recordings Act established a two-tier system of classification for sex videos. Videos rated 18 may be sold in general shops where children may be present. The mere presence of children coupled with a lack of confidence in the enforcement of age restrictions has led to a category that is strictly softcore and largely devoid of sex. The R18 classification restricts sales to licensed sex shops where the authorities have more confidence in the age restrictions. Here failure to comply would result in the loss of the license.

In theory, R18, videos are only censored to comply with laws of the land such as the Obscene Publications Act and the Protection of Children Act. Up until recently the interpretation of Obscene Publications was so strict as to make very little difference between the 18 and R18 versions. The only reported differences prior to 1997 were that R18 videos allowed non-explicit group sex and the depiction of genitalia was governed by the slightly more liberal guideline: outer labia in, inner labia out.

The ludicrously censorial treatment of R18s damned them to a commercial graveyard. The large majority of distributors opted to request the few extra cuts required to obtain an 18 certificate. This at least gives them a viable distribution, but left the sex shop sector in spiraling decline.

James FermanThe British Board of Film Classification (BBFC) has been concerned for some time that the UK censorship system for sex videos had been something of a failure. This had been accelerating in recent years to the point where the black market now easily out performed its legal counterpart. Although James Ferman, then the Director of the BBFC, deserves applause for his bravery in sanctioning legal porn, it does appear it had been forced on him more by the success of the black market rather than any championing of our liberty. The following extracts from recent BBFC annual reports outline the sequence of events that has led up to the recent liberalisation of censorship guidelines.

BBFC logoIn 1993, the BBFC reported that the system of R18 videos was not working too well. Legality under British law had been determined by the degree of explicitness in sexual depictions, so that even the R18 category has never included the sort of frank depictions of sex which are legal in most of our continental neighbours. This leaves some sex shop customers dissatisfied at the gulf between what can be acquired on the continent and what is supplied in Britain. The lowering of customs barriers with our EC neighbours in 1992 brought home this disparity in standards, with the result that the sex shop category, already in decline had virtually ceased to operate.

There were 55 R18 releases in 1990 but this had declined to 14 & 19 by 1992 & 1993 respectively. The BBFC also blamed the decline in legal sex shops on the reluctance of local authorities to issue licenses. This point pales into insignificance compared with the fact that they were trying to sell a product that nobody wanted to buy. Also in 1993 the Video Consultative Committee (representatives from the public, local authorities and the video industry) wondered whether it was wise to restrict the availability of censored porn in favour of under-the-counter product which might be far less socially desirable.

The sex video producers were always trying to find new angles to sell their sex-less videos and some of these methods caused concern at the BBFC. The appearance of camcorder sex videos in 1995, most notably those of the Ben Dover series by Steve Perry prompted the following comments. "For British release, these camcorder sex videos are tailored to 18 guidelines, avoiding explicit genitalia and devoting a high proportion of the video to the mating game, ie flirting, persuasion, seduction, bribes by instalment and whatever other pressures the male can bring to bear on the female short of force. This social context is thought be some examiners to be less honest and more sexist than frank hardcore porn". The censors were again wondering whether the strictness of UK censorship was doing more harm than good.

tom sackville By 1996 there was a realisation that the impracticalities of the system have helped to generate a thriving black market. It was this that prompted the liberalisation of the R18 guidelines as described in the annual report: "Unfortunately, the spread of unlicensed sex shops carrying illegal and unclassified material has been difficult to restrict. The City of Westminster Act gave the police power to close down black market premises, but the owners seemed able, with very little delay or inconvenience, to move their illicit operations into empty shops in the same vicinity. Both the police and a junior Home Office Minister (Tom Sackville) suggested to the Board in June 1996 that the closing of shops and seizing of assets might have to be accompanied by steps to direct patronage to licensed sex shops instead".

Orgy in Paris: Summer Wind 2So how far did the BBFC initially go in relaxing their guidelines. The answer is of course, not very. However for the first time in Britain, hardcore scenes were present in the R18 version of an adult entertainment video (ie as opposed to art-house or educational videos). Explicit erections, oral sex and vaginal intercourse all made an appearance. However, this was very much a qualified improvement as such scenes were present only as brief snippets. The majority of each sex scene was the usual censored softcore material with a couple of seconds of explicit footage thrown in once or twice every five minutes. The usual irritating video trickery was used for the majority of the scene, ie zooming into the image and reframing the explicit material offscreen, repeating inoffensive shots several times and cutting out the rest entirely.

The comparison with the original reveals that there are still several prohibitions in operation. All explicit scenes were shown in medium or long shot with no close-ups of genitalia. All cum shots were cut along with any depiction of anal sex (or indeed any verbal references).

It is difficult to understand where this peculiarly British compromise was heading. A viewer who wanted to watch porn would not appreciate why it is that a few seconds were OK yet any longer segment was still forbidden. Those that wanted to ban porn would still consider explicit sex objectionable whether there were 2 seconds or 2 hours of such material. The Home Secretary at the time, Jack Straw, subscribed to the latter view. He was at least consistent in his policy of wanting to ban every pleasure known to man. R18 videos proved to be no exception.

Jack StrawThe Home Office was reportedly notified by the customs service that feared that the R18 videos would undermine their fight against imported porn. Customs are supposed to enforce the law of the land, not to write it. After so many years of deciding law for themselves they simply seem to have forgotten their role. Anyway, Jack Straw came down hard on the BBFC. The R18 policy was suspended pending review (whatever that means) but worse was to come.

Jack Straw elected to exercise his legal option to appoint the president of the BBFC. Lord Harewood had retired due to ill health and the Vice President; Lord Birkett had been deputising pending Home Office approval. Instead Straw chose Andreas Whittam Smith, ex editor of the Independent. It was not long before the reasoning became apparent. An interview on Newsnight revealed that Whittam Smith never watched violent or erotic movies and believed that any video more restrictive than a PG should not be available for home viewing.

Andreas Whittam SmithWhittam Smith had been directed to improve the public accountability of the BBFC in the belief that if the public were given the power to challenge the BBFC then it will be Mary Whitehouse types who would do so. In fact Whittam Smith did sterling work in this direction, and if anything, public transparency eventually led to a liberealisation of policy.

So at this point, January 1998, hardcore was again banned and the BBFC were now staffed by bosses unlikely to voluntarily oppose the wishes of Straw. The next step in the push for liberalisation therefore had to come from a new direction. In fact the video distributors Sheptonhurst, (associated with the Private Shop chain), took up the challenge.

Makin' Whoopee DVD coverSheptonhurst had previously submitted a video, Makin' Whoopee for an R18 when the BBFC were still issuing certificates to videos with explicit but brief hardcore. The BBFC at the time indicated that the video would be passed uncut. Sheptonhurst went away to produce their release publicity and packaging etc based upon this information. By the time final certification was due, Jack Straw had stepped in with his jack boots. This left the BBFC with little option but to backtrack on their previous advice and suggest the usual extreme and commercially damming cuts. Feeling justifiably peeved, Sheptonhurst went to appeal and won their case in August 1998.

The appeal was heard and granted by an independent Video Appeals Committee (VAC) who were established under the Video Recordings Act. The very careful and well reasoned members of the VAC would soon continue to play an active part in the liberalisation of porn.

Robin DuvalIn fact the VAC decision prompted a brief return of the previous R18 guidelines that permitted snippets of porn. This period only lasted a couple of months and was terminated by the new BBFC Director, Robin Duval, as soon as he took up office in January 1989.

The distributors were again not pleased and this time Sheptonhurst were joined by Prime Time Promotions. Between them they submitted seven hardcore titles. The VAC were again called upon for a judgement. The latest batch of semi-hardcore titles were Horny Catbabe, Nympho Nurse Nancy, T.V. Sex, Office Tart, the trailer for Carnival (International Version), Wet Nurses 2 (Continental Version), and Miss Nude International (Continental Version).

And again the VAC granted their appeal. By this time the BBFC had given up on the argument that such videos were obscene and instead argued that they may cause harm to children who may get to see them. The VAC felt that the safeguards of the licensed sex shop system were adequate to prevent any significant amounts of children from seeing R18 videos.

Old BaileyThe BBFC were by now starting to feel the pressure. 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.

BBFC logoThe 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)


HMR logoCustoms 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.

Since the memorable summer of 2000 things have been incredibly static. 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. The Lib Dems proved an exception to the rule and openly debated the reduction of the age restriction on porn from 18 to 16.

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.

John Beyer of Mediawatch-UKSurprisingly 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. A more interesting campaign, which proved partially effective, was by the so called Internet Vigilantes. This group trawl the internet looking for minor transgressions against the law such as selling via mail order rather than through a sex shop. They would then report the offending trader to police and Trading Standards etc. The campaign seems to have dwindled though, as the authorities do not seem unduly worried about mail order. Also whilst the actions may prove pretty devastating to a few harangued traders, they hardly have done anything to reduce demand for a very popular product.

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.

Over the last few months the commonest reason for cuts seems to be the use of the word "teen". This is a little unfortunate as the hardcore industry freely use the term to describe a whole genre of videos. All commercial companies strictly enforce a minimum age limit on performers of 18 and there is no hint that anyone is pushing the legally acceptable age of 16. Yet the BBFC still insist on re-titling such videos and eliminating any references to teens in the dialogue.

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

Most of these cuts are uncontested by the distributors. The BBFC have however been challenged about their view that female ejaculate is in fact urine and must therefore by removed. Research material has been submitted arguing that female ejaculate is an entirely different fluid but this has yet to sway the views of the censor.

The distributors of a sex education video called: More of What Men Want were caught out when the so called educational content was not found to be medically sound by the BBFC advisors. This resulted in a cut removing the sight of pieces of ice being inserted into the vagina prior to intercourse. This was on the grounds that the educators did not inform that ice may cause harm if it isn't allowed to melt a little first.

The BBFC frequently refer to 'potential harm' as justification for cuts. 22 seconds were removed from Maneuvers: Agony of Victory. The censors gave the following justification: Cut required to sight of urolagnia (in this case a man licking urine from his hand) in accordance with BBFC guidelines and in line with current interpretation of the Obscene Publications Act 1959. A second cut was required to sight of a lit cigar being held very close to a man's penis on the grounds of potential harm. Of course the sight of a man smoking a cigar is perfectly acceptable even though smoking is 'provably harmful' rather than merely 'potentially harmful'.

Its a tough job, but somebody's got to do it...haven't they?



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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