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Obscene Publications Act

Tuesday 28 July 2009, 14:00

Mark Kermode Mark Kermode

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As Lars Von Trier's new work Antichrist continues to raise the blood pressure of the sort of tabloid type whose career is predicated on finding reasons to raise their blood pressure, it seems appropriate to note that this is the week of the 50th anniversary of the Obscene Publications Act which defines in law something as obscene: "if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it."

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    Comment number 1.

    Very good point. As I think you've said, most of the furore over Antichrist is from people who haven't seen it but have heard what happens in it, therefore are making a theoretical tick on their checklist of things that they think are wrong, rather than seeing those scenes in context and considering the work as a whole.

    A favourite thing that a university lecturer I had would say was that there was a popular musical that dealt with pornography, drug abuse, prostitution, and murder, and that musical was 'Oklahoma!'. That is a technically correct statement, and it just goes to show how something can be completely misrepresented through describing it rather than people seeing it themselves.

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    Comment number 2.

    Dear Mark,
    Good argument and valid point as always, but a thought occurs to me on the certificate system. In your recent reviews of both Bruno and Antichrist, you commented on how hard it is for a film to get an 18 certificate these days, and how in the case of Bruno it only takes a few (morally ambiguous) snips to pass it off as a 15.

    It was less than 30 years ago that the 'X' certificate was replaced, which I read more as an opening of minds than any kind of moral collapse. So two points. First, do you think that the 18 certificate will soon become redundant; and second, how long do you think it will be until Antichrist can be seen uncut by a 12-year-old? I'm not trying to make a moral point, i.e. luring you into saying something and then holding it up as an example of falling standards (which is nonsense), I'm just interested to know your view.

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    Comment number 3.

    There is a somewhat obvious paradox in determining if a film is morally corrupting: in order to make that determination, you have to see the film in the first place, by which time, if it passes the test, you've been morally corrupted and the damage has been done. Yet if you don't see the film, people criticise you for judging it presumptously and they'd be right. It's a tricky one, that.

    Personally, I'm for the repeal of the Act and against a checklist system. What I believe in is greater transparency, with websites like the BBFC providing detailed information on a film's more contentious aspects. I just don't think there's any reliable way of legislating on this issue.

    And there's also the question of whether we need protecting from being morally corrupted, which is, itself, a very sticky issue.

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    Comment number 4.

    Surely the film that will be most likely to morally corrupt it's target audience is Transformers 2?

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    Comment number 5.

    It is a difficult one.

    As a father I want my children to be protected where possible (arguably the job of the BBFC).

    As an intelligent human being I want to have the choice to be morally corrupted (or not) as I see fit.

    At the end of the day it comes down to the fact that I should be the one who chooses what my family and I subject ourselves to. If as my children grow older they wish to subject themselves to morally depraved cinema going then so be it. It would be as much my failure as anyone else's. But if not me, then why should someone else get to make this choice?

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    Comment number 6.

    So, let me get this straight. A film like Antichrist, which is, as Mark likes to say from time to time, a 'proper' film that is 'about something' (that just so happen to contain a few extreme scenes)... is more offensive than Transformers: Revenge of the Fallen? A film which contains several scenes featuring two robots that are obviously meant to be a "comical" racial stereotype of the "Ghetto" black man... And a gazillion scenes in which we, the audience, are subjected to the backside of Megan Fox, who wears very little throughout... And finally, two scenes of dogs and robots doing something that I didn't expect to see in a 12A movie.
    Yet, T2 is classed as a family film, that has raked in millions of pounds worldwide and the Daily Mail has not once complained about it... Hmm, hmm... We do, indeed, live in a topsy-turvy world.

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    Comment number 7.

    I think you're presenting a false dichotomy here. Why does it have to be the OPA or a checklist? Why can't we just say that adult humans can make their own decisions on what they should or shouldn't see? We can certainly legislate on films which are intended to incite violence, but I think the intent is very important here too.

    People are obviously going to differ in what they think is obscene/depraving, so why not just let people judge for themselves, perhaps on BBFC guidance, whether or not they will find a film obscene and if they do, allow them to avoid seeing it.

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    Comment number 8.

    think the title is a bit of a giveaway, i wouldn't let my kids go and see a film called antichrist, and the job of the BBFC is to help me make that decision but not to make it for me so i would quite happily go and see it if wanted to being a 32 year old i think i can handle it, just about, the point being i knew what i was going to see.

    Like many things it's not what you say it's how you choose to say it that is the problem, if all the more "extreme" scenes in antichrist were offscreen or implied would it still have caused all this out-pouring of condemnation? That would make it a very different film would it not? Would it then be a very tough look at the mental breakdown of a mother due to the effect of extreme grief with 5 star ratings or would it be passed over as another art-house movie?




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    Comment number 9.

    Hey, Mark, let's get married.

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    Comment number 10.

    Ahhhhhhhhhh U2 are on the tv again. I'm sick to death of that advert, maybe I shouldn't watch TV like Mark.

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    Comment number 11.

    Don't forget the Dangerous Pictures Act.

    Here's the guidelines for this Act.

    The Crown Prosecution Service has now published its guidance on the Dangerous Pictures Act. There take on a dangerous picture is as follows

    Elements of the Offence

    For an offence contrary to section 63 of the Act the prosecution has to prove:

    That the image is pornographic; and
    That the image is extreme namely grossly offensive, disgusting, or otherwise of an obscene character; and
    That the image portrays in an explicit and realistic way any of the extreme acts set out in section 63(7).
    An Extreme Image

    An image is pornographic if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Whether an image is pornographic or not is an issue for the District Judge or jury to determine simply by looking at the image. It is not a question of the intentions of those who produced the image. Nor is it a question of the sexual arousal of the defendant.

    Section 63(6) of the Act states that an extreme image must be explicit and realistic; both those terms take their ordinary dictionary definition. Taking an example which was raised during parliamentary debates on the Criminal Justice and Immigration Bill, the anal sex scene in the movie Last Tango in Paris, even if it were to be considered pornographic and of an obscene nature, would not be caught by the new offence, because it is not explicit and does not portray an act resulting or likely to result in serious injury to an persons anus.

    The painting Leda and the Swan, another example raised during debates in Parliament, would also not be caught by the new offence, because it would not meet the explicit and realistic test.

    Section 63(7) lists a number of extreme acts including:

    An act which threatens a persons life; this is not defined in the Act and therefore should be given its ordinary dictionary meaning. The Ministry of Justice note of Further information on the new offence of Possession of Extreme Pornographic Images at paragraph 11 gives examples of life threatening acts.

    An act which results in or is likely to result in serious injury to a persons anus, breast or genitals; this could include the insertion of sharp objects or the mutilation of breasts or genitals. The words serious injury are not defined in the Act and would take their ordinary dictionary meaning and be a question of fact for the District Judge or jury.

    The Ministry of Justice note of Further information on the new offence of Possession of Extreme Pornographic Images specifically states that the reference to serious injury was not intended to expressly link into the case law with respect to grievous bodily harm contrary to sections 18 and 20 of the Offences Against the Person Act 1861 (which has been interpreted as being capable of including psychological harm).

    Although the Act does not state what a serious injury is, prosecutors must be aware that by the very nature of its name serious injury will not include trivial or transient injuries which include bruises and grazes.

    The CPS information also outlines defences, charging guidance and information about obtaining consent from the DPP

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    Comment number 12.

    Could this Act be opened for interpretation and also be aimed at horror, other violent movies/cartoons, past and present, as well as the consumers themselves who own them on DVD or harddrive?

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    Comment number 13.

    As a fellow Ken Russell fan I must say I find it crazy that Antichrist has been released uncut by the BBFC yet we still can't have an uncut version of The Devils available. I know it's a frequent topic here at the Kermode Uncut website but I dont see what is so controversial about this great piece of work when other more eplicit films which are more likely to offend are being released in our cinemas today.

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    Comment number 14.

    I agree, we do still need the OPA and a degree of censorship. A lot of damage can be done to an unsuspecting audience being exposed to dark and harrowing scenes.

    The best modern example was the infamous BBC 'Ghostwatch' programme of the early 90s. It set itself up as being a fun halloween 'hunt for ghosts' documentary, but was in fact a pre-scripted mockumentary showing a poltergeist wreaking havoc on a young family. Many children watched the programme as their parents were led to believe it was a 'Scooby-Doo' style romp, when in fact it was much more akin to The Exorcist with a real sense of menace behind it. Therefore many unsupervised children watched the programme.

    And as a result one disabled child killed themselves, two children had to have psychiatric help for Post traumatic stress disorder, and multiple kids had sleepless nights.

    In a non-censorship, BBFC abolished (which some want) country, surely examples like this will become more widespread.


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    Comment number 15.

    Interesting to hear Mark talk about the OPA description about whether material will corrupt its intended audience, which is a reflection of the class nature of British censorship.

    A film like AntiChrist can get away uncut because it is perceived by censors to be watched by a beardy middle-class arthouse crowd so they wont be corrupted.

    The same offending scenes would not be allowed in an 18 certificate multiplex horror as people from council estates might see it and will obviously be in danger of having their minds twisted as they havent been to university.

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    Comment number 16.

    We don't need moral "guidance" by people who will never watch the films they're legislating against, or draconian Lists Of Evil that simply don't take into account the context within which offensive material is meant to be viewed.

    There is a clear line to be drawn by any sane person between a fictional depiction of an event that is in the interests of a story's narrative, and a film depicting actual events from which we can derive no particular cultural use.

    The BBFC certification works perfectly, especially given its neutral stance, its vested interest in the film industry and its willingness to move with, and sometimes ahead of, the times.

    What is needed is a continued and active balance on the part of the certifiers. Is Antichrist genuinely suitable for an 18 year old? Would the (re)introduction of an X (or 21) certificate simply encourage film makers to push the content of their films that little bit further simply for controversy's sake?

    The BBFC's willingness to include real sex in films, and to release uncut versions of films like Cannibal Holocaust show a real (and welcome) shift in perception, while at the same time films like Terminator are being downgraded to 15 for DVD release.

    The certification system we have is healthy and progressive. Anything else is simply pandering to the knee-jerkers and the tabloids.

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    Comment number 17.

    I managed to watch The Ninth Configuration and absolutely loved it.

    Even though you probably wont reply, cheers for the recommendation Dr Kermode.

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    Comment number 18.

    The thing I can never get over is these newspapers that complain about films like Antichrist still dont realise that all they basically do is give the film more free publicity.

    As soon as someone says this film is sickening etc people will go to see Antichrist where as without the articles in the paper your average cinema goer would probably never even of heard of the film as its unlikely to be trailed on TV during soap operas.

    Surely as someone mentioned earlier Transformers 2 is a far more offensive film than Antichrist. I didnt see any racsim in Von Triers film and id say in most ways treated women far worse than anything than "She" does to herself in Von Triers film. Maybe the press are scared to campaign against films like Transformers 2 because of the Spielberg connection

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    Comment number 19.

    My favourite headline regarding Antichrist is the Daily Mail's "What DOES it take for a film to get banned these days?", which seems to be saying that there should always be something to be 'ticked off' as unacceptable, rather than letting people make up their own minds. I'm not certain what they think certain films need to be banned, and I'm not sure they really know either, it just appears to be a knee-jerk reaction. That, or as The Good Dr himself argued some years ago on Channel 4, it's a case of 'I am responsible enough not to be affected by this film, but nobody else is as intelligent as me and therefore they are incapable of being able to make up their own minds and should not be allowed to see it'.

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    Comment number 20.

    In interesting that these newspapers are very quick to react in banning films that they think might morally corrupt. But on the question of morality, when I look at the problems in society I question their priorities. Why haven't they been quick off the the mark in banning the following?

    Advertising of fast foods
    Fashion magazines and teenage magazines showing beauty as thin
    Music videos that continually show images of sex and women as sex objects
    Alcopops with labelling blatantly aimed at children (now banned in this country)
    Rap music

    It could be argued that these morally upstanding newspapers themselves have played their part in helping give society an unhealthy obsession with celebrity and wealth, and have contributed very little to help inform and educate our society.

 

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Outspoken, opinionated and never lost for words, Mark is the UK's leading film critic.

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