On 2 February 2017 in the debate on the Digital Economy Bill (DEB) in the House of Lords, Baroness Benjamin spoke about Clause 22 of the DEB where she proposed an amendment. Under the Government’s draft the Bill states that the age verification regulator:

“may publish guidance for the purposes of subsections (1) and (6) about the circumstances in which it will treat services provided in the course of a business as enabling or facilitating the making available of pornographic material or prohibited material”. [my emphasis]

Baroness Benjamin sought to make the publishing of this guidance mandatory rather than discretionary. She said that “The effectiveness of Clause 22 is central to the Government’s enforcement strategy. It is great that they want to disrupt pornography websites that are not in compliance with the age-verification requirements of Clause 15(1) by either stopping the money via the payment providers or disrupting other business activities via what the Government deem ancillary service providers—ASPs—a term that is broadly defined in Clause 22(6). … It is essential that the guidance in clause 22(7) be published. It is not just something that would be nice to have, which is how the Bill currently stands.”

Later in the debate Lord Browne of Belmont mentioned that “ … on Second Reading, a number of noble Lords raised concerns about censorship and the definition of prohibited material. I found this surprising as we have so often heard the mantra that what is illegal offline is illegal online. Offline, the British Board of Film Classification has operated for a long time on the basis that it will not classify certain types of video work based on the content. This principle is well established and has been in statute since an amendment to the Video Recordings Act 1984 was made in 1994 after the Jamie Bulger murder. That requires the BBFC to have special regard to any harm to potential viewers. A “potential viewer” means

“any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued”.

Moreover, it is of course an offence under Section 9 of the Video Recordings Act to supply a video work which the BBFC decided is not suitable for classification. It is also an offence under Schedule 10 to have such a work in possession for the purpose of distribution and supply.”

The unanswered question in this very good debate is what genuinely constitutes prohibited material given the variety of content on today’s internet. Where do we (and the BBFC) draw the line and say that this material is always prohibited and can never be shown? What can we safely say is always banned from circulation not just to children and vulnerable adults but from everyone. What is the extreme limit where, as a civilised society, we must always draw the line and say ‘This material is prohibited’.

Quite obviously some content is always prohibited. Videos of people being killed by other people or being executed fall into this area. Around this is a penumbra of images - what about videos of people being accidentally killed? The opening title sequence from the 1965 British U certificate film “Those Magnificent Men in their Flying Machines”, appears to show brave test pilots in experimental “flying machines” falling off cliffs to their certain death interspersed with Ronald Searle cartoon aircraft and people . In the 1960s did we treat accidental death as ‘slapstick humour’? Did life itself have so little value that children could be encouraged to laugh at the fatal consequence of brave experiments?

A careful look at the film’s title sequence proves otherwise. In an age without CGI the opening sequence is actually a mix of cut-aways with modern actors, cartoons and vintage film clips. Red Skeleton acts out a series of roles, as a birdman in ancient times flapping his arms as he falls off a high building and as an early pilot in a plane with multiple wings. With occasional cutaways to clips from actual film recordings of the experimental aircraft - none of which show the death or serious injury of their pilots or participants. The slapstick humour does not become cruel or unfeeling. The movie still deserves its U certificate and the stunts and filming are still wonderful to watch.

The BBC’s Controllers have this sensitive approach within their DNA. The original plan for the opening title sequence for 'Dad's Army' was to include footage of real soldiers as a reminder that the comedy was based on true events. However, the Controller of BBC1 at the time, Paul Fox, felt the images selected were distasteful and ordered for them to be re-edited. Instead of the footage of real soldiers that had been planned, a new sequence was commissioned using the now-familiar animation of Swastika-emblazoned arrows prodding a Union Flagged arrow back across the English Channel.

In the UK it is thought that the death rattle of the moral majority bandwagon against the depredations of the ‘permissive society ‘ in mainstream cinema was in the prosecution of United Artists for the movie “Last Tango in Paris” in 1972. It starred Marlon Brando, as a middle-aged American who, following the suicide of his wife, engages in a series of anonymous sexual encounters with a young French woman, played by the 19 year old actress, Maria Schneider, in a Parisian apartment over a three-day period. The film was directed by Bernardo Bertolucci, the Italian auteur who later claimed that the idea for Last Tango had developed from a personal sexual fantasy. The film was shot in Paris and drawn inspiration from the paintings of Francis Bacon. During the shooting of the film Bertolucci reportedly took Brando to the Bacon retrospective that was being presented at the Grand Palais in Paris, so that he could model his characterisation on “the figures that obsessively return in Bacon, faces eaten by something coming from the inside”.

The BBFC reviewed the film’s suitability for general release and it finally was passed by the board as an “X” certificate on 16 February 1973. In the course of their deliberations, members of the BBFC expressed concern about only two of the film’s scenes. One involved ‘very explicit sexual dialogue’ and the other, a graphic depictions of sexual activity ‘in which two characters employ butter as a sexual lubricant’ - this was a reference to the notorious scene of anal intercourse, perhaps the most infamous sex scene in cinema.

The UK Festival of Light brought a private prosecution under the Obscene Publications Act 1959 against United Artists. The case went to a full scale trial following a preliminary ruling by the Lord Chief Justice, Lord Widgery, on the construction of the legislation. Consequently Lord Jeremy Hutchinson assembled a team of well known and distinguished experts to support Last Tango in the same way that he had done so some years earlier when defending Penguin Books in the Lady Chatterley case.

In his notes on the case Lord Hutchinson says:

We started with a preliminary list of potential witnesses including director, Francois Truffaut, Lindsay Anderson and Tony Richardson; actors John Mills, Laurence Olivier, Richard Attenborough, David Hemmings, Michael Crawford, Robert Shaw, Sean Connery; Roger Moore and Diana Rigg; playwrights John Osborne and John Mortimer; critics Kenneth Tynan and Dilys Powell; journalists David Frost and Bernard Levin as well as a variety of writers and clerics. I then went through the list and considered who would be or would not be suitable. Those who we approached were asked to provide their views in writing on Last Tango. It was fascinating to read their analyses of the film ….

During the trial at the close of the prosecution case in respect of the correct construction of the terms of the Obscene Publications Act 1959, Lord Jeremy Hutchinson reiterated the arguments that he had tried to run before the Lord Chief Justice as a preliminary point of law. On this occasion the trial judge, Mr Justice Kenneth Jones, ruled in favour of the defence and directed the jury to acquit. None of the proposed Defence expert witnesses had to be called.

But would the jury have found that the movie was not ‘obscene’ had they known the true facts of the case. In a 2013 video with Bertolucci that recently surfaced, the director admitted to colluding with Brando the morning of filming about the butter sequence and taking the actress by surprise with the scene so that they would get her "reaction as a girl, not as an actress."

In other words: the director and the co-star didn't get Scheider's consent for an anal rape scene.

Bertolucci said

"I wanted her to react humiliated. I think she hated me and also Marlon because we didn't tell her ... to obtain something I think you have to be completely free. I didn't want Maria to act her humiliation, her rage; I wanted her to Maria to feel ... the rage and humiliation. Then she hated me for all of her life."

Schneider's tears in that scene, she said in 2006, were real and the actress never agreed to do another nude scene. She spent years struggling with depression and drug abuse, and died in 2011 at 58.

None of this was known to Lord Jeremy Hutchinson at the time of the trial. The potential expert witnesses ready to be called to support the movie as an artistic work were ignorant of the fact that this was not ‘consensual’. Had they known would any of them at all have been prepared to testify in favour of United Artists?

In the face of the true facts of the Last Tango case, in my opinion, there would appear to be an irrefutable case for requiring the Government to explicitly state that any video which shows a non-consensual criminal assault will be treated as being ‘prohibited materials’ and subject to the full scope of the financial penalty provisions of the DEB as well as the criminal law more generally.