THE BLOG

Digital Economy Bill: The BBFC Clarifies The Definition Of 'Prohibited Material' And Its Obligations Under UK Law

13/12/2016 10:47 GMT | Updated 14/12/2017 10:12 GMT

Recent media reports highlighting what content will be defined as prohibited material under the terms of the Digital Economy Bill could have given an inaccurate impression of the serious nature of the harmful material that the BBFC generally refuses to classify. The BBFC works only to the BBFC Classification Guidelines and UK law, with guidance from the Crown Prosecution Service (CPS) and enforcement bodies, and not to any other lists.

The Digital Economy Bill aims to reduce the risk of children and young people accessing, or stumbling across, pornographic content online. It proposes that the BBFC check whether (i) robust age verification is in place on websites containing pornographic content and (ii) whether the website or app contains pornographic content that is prohibited. An amendment to the Digital Economy Bill, passed in the House of Commons, would also permit the BBFC to ask Internet Service Providers (ISPs) to block pornographic websites that refuse to offer effective age verification or contain prohibited material such as sexually violent pornography.

In making any assessment of content, the BBFC will apply the standards used to classify pornography that is distributed offline. Under the Video Recordings Act 1984 the BBFC is obliged to consider harm when classifying any content including 18 and R18 rated sex works. Examples of material that the BBFC refuses to classify include pornographic works that: depict and encourage rape, including gang rape; depict non-consensual violent abuse against women; promote an interest in incestuous behaviour; and promote an interest in sex with children. The Digital Economy Bill defines this type of unclassifiable material as "prohibited".

Under its letters of designation the BBFC may not classify anything that may breach criminal law, including the Obscene Publications Act (OPA) as currently interpreted by the Crown Prosecution Service (CPS). The CPS provides guidance on acts which are most commonly prosecuted under the OPA. The BBFC is required to follow this guidance when classifying content offline and will be required to do the same under the Digital Economy Bill. In 2015, 12% of all cuts made to pornographic works classified by the BBFC were compulsory cuts under the OPA. The majority of these cuts were to scenes involving urolagnia which is in breach of CPS guidance and could be subject to prosecution.

The BBFC operates transparent, consistent and trusted co-regulatory and self-regulatory classification and labelling systems in the UK. The BBFC Classification Guidelines are based on large-scale public consultation and supplemented with expert research. The last review of the Classification Guidelines involved more than 10,000 members of the public from across the UK.