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Digital Economy Bill [HL]

Again, I have added my name to the amendments of the noble Lord, Lord De Mauley. I am equally glad that they have secured Cross-Bench support. The Bill allows the video games authority to allocate certain classes of work to the video works authority. Interestingly, it is left to the Explanatory Notes to give Blu-ray discs and R18 games as examples. I understand that there is already agreement that these will be allocated to the BBFC. Since that is already agreed for good reason, it would make sense to include it in the Bill. On the first class of work, films are increasingly being marketed with ancillary games attached to the same disc. The basic product is a film with some minor gaming additions. The BBFC has extensive experience of rating films and games together. I understand that the home entertainments industry wishes this situation to continue. The Bill should specifically enable this allocation to the BBFC. R18 material consists of problematic and extreme material which can be sold only in a sex shop, and rightly so. The BBFC has years of experience in classifying such material. It is so trusted that, under the Criminal Justice and Immigration Act 2008, if a video work has a BBFC classification it is accepted that there cannot be a charge of possession of an extreme pornographic image. This exemption was included because the BBFC is recognised as the expert in judging what is often quite a fine line between acceptable and unacceptable content. Noble Lords will understand that this form of expertise has taken a number of years to develop and should be more sensibly recognised in the Bill. We should also be aware that if this does not happen it would be possible for pornography distributors to use a game format in an attempt to secure classification with fewer cuts. Amendment 249 is also important as otherwise the clause establishes a potentially damaging inequality between the two regulators. In short, the existing regulator—the BBFC—is made completely subordinate to the new video games regulator in matters of determining which body should regulate a particular product. This is undesirable as a matter of principle and also as a matter of practice. If, because of its expertise, the BBFC is given responsibility for classifying R18 games, it makes no sense for the Video Standards Councils—with no experience of such content—to have the power to determine whether the game falls to the BBFC. Such decisions on individual works within a class of work that have been allocated should be left for the regulators to reach agreement. I received a briefing from the BBFC last week which implied that if this allocation were enforced, and if the BBFC were to judge a game to be 18 rather than R18, it would still rate the work, thus creating a dual system. I have checked this with the BBFC, which confirmed that it would do no such thing. It would refer the work back to the VSC with a recommendation that the game was not R18. The VSC would then be able to rate the game as it saw fit. This is already agreed between the VSC and the BBFC. This amendment in no way proposes otherwise. As the Bill stands, the VSC could judge a work as 18 and not refer it to the BBFC, and the BBFC could not overrule that decision, even if it were convinced that the work in question was an R18. Given the implications in law of such a mistake, this amendment should be accepted in full by the Government.