Video recordings and Human Sexual Activity.
Kent CC v Multi Media Marketing (Canterbury) Ltd and Another
(1995) The Times, 9 May Queen's Bench Division
The case is concerned with allegations which included offences of supplying and being in possession of video work, contained on computer disks, in respect of which no classification certificates had been issued by the British Board of Film Classification, contrary to sections 9 and 10 of the 1994 Act.
Section 2 of the 1984 Act provides: "(2) A video work is not an exempted work ... if, to any significant extent. it depicts - (a) human sexual activity ... (c) human genital organs ... or is designed to any significant extent to stimulate or encourage anything falling within Paragraph (a).
The facts
The facts are taken from the judgment of LORD JUSTICE SIMON BROWN. The respondent company organised a club known as The Interactive Girls Club which was dedicated to the production of erotic adult computer entertainment. The disks contained a game on completion of which there were produced short moving images of naked women.
The Law
There were two issues before the justices as to the disks. First, whether they were video work within the definition of section 1 of the 1984 Act and second whether they were exempted under section 2.
As to the first issue the justices found that while it was possible for o series of computer images to become a moving picture the duration of the images and the quality of their display was insufficient to bring them within that term.
His Lordship said that although continuity was relevant, it had been inappropriate to take into account the brevity of the display. Provided the sequence was long enough to show continuing movement it could properly be described as a moving picture. The justices further found that even if they were wrong in their conclusion that the disks did not constitute video work, the disks (1) could properly be described as video games and therefore exempted work under section 2(1)(c) and (11) they did not fall foul of the section 2(2) sexuality provisions.
In his Lordship's judgment the only video work was the clip of the women itself as the game was not a moving picture and therefore fell outside the definition of video work.
The clip was no more or no less than a reward for completing the game and could not itself constitute a game.
That finding made it strictly unnecessary to consider the sexuality provision in section 2(2) but their Lordships would deal with them given the increasing future importance of the area having regard to the development of computer technology and skills.
The justices had concluded that human sexual activity could only mean acts of copulation or masturbation, either real or simulated; that female genitalia were internal organs only and excluded images of labia shown in one clip and that the clips were only mildly suggestive, stretching credulity in the assertion that they could either stimulate or encourage sexual activity.
As to human sexual activity his Lordship accepted the submission of the prosecution that activity short of masturbation might well qualify for such a description. The clips plainly depicted human sexual activity.
Female genitalia need not be confined to internal organs. 0n the contrary a full shot of labia was properly to be regarded as a depiction of human genital organs. Furthermore, his Lordship said that it was unnecessary, when considering the question of whether the work was designed to stimulate or encourage human sexual activity, that the clips be regarded as hard pornography or as offensive. That they could be described as "mildly suggestive" only was not inconsistent with their stipulated end
Findings
"Human sexual activity" for the purpose of section 2(2) of the Video Recordings Act 1984 could fall short of masturbation and "video work". under that Act, could be said to be designed to stimulate or encourage such activity even though it could not be regarded as hard core pornography or as offensive.
The Queen's Bench Divisional Court allowed the appeal by the prosecution by way of case stated against the acquittal by Multi Media Marketing (Canterbury) Ltd and Paul Buckland, the company's managing director.
Accordingly the appeal would succeed but the case would not be remitted to the justices.
COMMENT
Computer generated pornography appears to be on the increase,as such it is very worrying to parents. With so many home computers linked to modems and the Internet who knows what children are up to in their bedrooms when parents are both at work. It is important that these activities be curbed and legislation strengthened.
If reports are true many professional men are involved - The Times reported (1995) 27 July that nine men were arrested in Britain after an International investigation into child pornography on the Internet. Another 31 people were held in other countries. The operation was begun by West Midlands police, who identified several people believed to be distributing paedophile material via computer. All are professional men said to be in their 30's and 40's.
In Tesco Stores Ltd v Brent London Borough Council (1993) The Times, 158 JP 121 where a company was charged under the Video Recording Act 1994 with supplying a video to a person under the age specified in the classification, the knowledge and information of the employee who made the sale was relevant and could be imputed to the company, it would perhaps be able to proceed that way if individuals cannot be traced.