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Digital Economy Bill [HL]

My Lords, Amendment 251 is in my name and those of the noble Lords, Lord Gordon of Strathblane and Lord Clement-Jones. The amendment replaces proposed new Section 4ZC of the 1984 Act and seeks to enshrine in law the current situation whereby the BBFC, which the Government plan to designate as the video works authority, remains responsible for any non-integral video works in a video game. This could include films or even TV series accessed as a reward for reaching a certain level in a game. Last week, I and other noble Lords received a briefing from the Video Standards Council. It referred to Amendment 251 as a wrecking amendment. Not only is this not my intention, but I do not accept that it is one. I was also grateful to the noble Lord, Lord Young, for arranging a meeting last week with his officials. I acknowledge that, again, he and the officials tried to persuade me that the amendment was unnecessary. However, I am afraid that I remain firmly of the belief that, if the Byron report is to be implemented in full and in a way that does not undermine the system that we have in this country for the classification of linear, film-type material, we must amend the Video Recordings Act to make it clear that the BBFC remains responsible for film-type material. It was suggested to me that the BBFC would classify film-type material and games, and then hand over the classification to the Video Standards Council to take account of its overall classification of the game. This is not what was suggested by Tanya Byron: nor was it the stated intention of the Government. The Government's response to the consultation on options for a strengthened video games classification states that, "““the BBFC will continue to rate any film or video content found on video game discs that is not integral to the game, as they currently do””." However, if I understand it correctly, the Bill raises a series of new questions and concerns. Could the VSC overrule the BBFC on non-integral, linear material? Where does this leave the consumer? We could have a situation where a video game contains a series of films and yet the disc has a PEGI classification, which, according to the Bill, could bear no relation to the BBFC classification. LACORS is the body that represents local authorities. Its trading standards officers must enforce these regulations, and it has informed me that it supports the amendment. It, too, has no reason to wreck the Bill. It is worried about enforcement and believes that the Bill could mislead consumers because a PEGI rating on a disc, which could be a hybrid product, would lead them to believe that it was a game rather than a series of films—or even pornography accessed through a game. This would mean that the product could also fall foul of the Consumer Protection from Unfair Trading Regulations 2008. It is important to recognise that the public are used to seeing the BBFC classification symbol, and understand what it means. Independent research undertaken for the BBFC in 2009 shows that 71 per cent of viewers check the BBFC classification before deciding whether to watch a video work, while 88 per cent of parents with young children rate the BBFC as effective. We cannot ignore the fact that a PEGI classification for film-type material would be confusing to the public and to law enforcement agencies. LACORS is also deeply concerned about how, on a practical level, it would enforce these classifications. If it was pursuing a prosecution over the sale of a game because of the linear content in that game, to whom would it turn for support in court? The VSC could say only that it had rated the product 18, for example, because of a classification given to it by the BBFC. Does this BBFC classification have any legal standing under the current terms of the Bill in relation to provision of evidence? If the BBFC could not go to court, would this leave law enforcement officers with no support in their prosecution? This is not an insignificant issue because in 2009 alone, the BBFC provided evidence in 211 cases; that was a year in which, from August, the VRA’s problem meant there were no prosecutions. The only solution I can see to this issue is to allow the BBFC to remain responsible, as it is now, for non-integral linear content in games. In its evidence to the Byron consultation, the VSC’s own data stated that in 2007 it referred 101 games—8.2 per cent of the total classified by PEGI—to the BBFC for a combination of gross violence, sexual activity and non-integral linear material. Of these 101 games, 51 were referred because they contained linear content only. Based on the VSC’s own data, therefore, and assuming 2007 to be broadly representative, the percentage of games containing non-integral linear content to be rated by the BBFC would be 4 per cent of the total. Ninety-six per cent of video games would be rated exclusively by PEGI. It is important that this legislation is future-proofed and enforceable. We cannot predict how many video games may contain film-type linear material in future. We need a system that consumers understand and that law enforcement officers can implement. This amendment protects us from a situation where any so-called game, even one that has substantial film material, is rated solely by the VSC, which would be extremely confusing for the consumer and the citizen. It also prevents a product that is primarily linear being repackaged as a game to avoid robust BBFC classification.