The House will recall that we decided to take amendments Nos. 19, 23, 32, 34, 36, 40, 42 and 43 together with amendment No. 1 in the name of Deputy Mervyn Taylor. We also agreed to take amendments in the name of Deputy Seán Barrett and a number of amendments in the name of The Workers' Party. I take it that we will adhere to that procedure and debate all those amendments together. If necessary, I will repeat the amendments to the House. Deputy De Rossa was in posession.
Video Recordings Bill, 1987 [Seanad]: Committee Stage (Resumed)
Debate resumed on amendment No. 1:
In page 3, subsection (1), before the definition of "exempted supply" to insert the following definition:
"child' means a person under the age of 16 years;".
—(Deputy Taylor.)
When the debate adjourned we had been discussing whether or not it would be acceptable to have a system of classification for guidance only whereby the censor would classify videos for the guidance of parents and others renting videos. I was seeking, as I understand was Deputy Mervyn Taylor, a system of classification whereby the lessor of the videos would be obliged to ensure that persons who were excluded from viewing because of the classification would be excluded. The lessor would be responsible for ensuring that a child would not view certain types of video, for instance. I indicated that I would be generally satisfied with the sort of proposal the Minister was making with regard to classification for guidance purposes, taking into account the point made by the Minister that it would be difficult to police the kind of system which I was proposing, and taking into account that I believed that having a guidance system introduced would relieve the censor of the constraints which would be on him as things stand. I felt that as things stand the censor would be constrained not to pass videos which he felt might get into the hands of young people for whom they might not be suitable. If the censor could classify, for guidance purposes, it would assist him in doing his work.
At the close of the discussion I asked if the Minister could indicate the kind of classification he was talking about and what legal obligation would be on the lessor in relation to how the system might be expected to operate. From correspondence from the Video Alliance of Ireland, I know they have a voluntary system of classification. They have a U classification suitable for all of the family and particularly aimed at young children — that is U with a C. The letter U on its own is suitable for all, but of general interest to all of the family. The letters PG indicate that parents should use their discretion and that the video is not suitable for very young children. The number 15 indicates that they are suitable for people of 15 years of age and over. Where they are marked with the number 18 they are suitable for people of 18 years and over. They say that these symbols serve as guidelines only and no responsibility or liability attaches for the content of the film. They also say that there are exempt uncertified titles. Will the Minister clarify if that is the kind of voluntary guidance system he is proposing, or if it is some other variation of it?
Since we last debated this I met a number of people from the video industry. It is obvious that their understanding of what we mean when we talk about a limited supply certificate and what they think might happen as a result of it are two different things. I spent a considerable number of hours with two people debating this issue and I hope that at the end of the day I persuaded them that what we were talking about was reasonable.
The Minister said that he would consider a classification system for guidance purposes, but there is a problem about that. The real problem is not whether the videos come in from Britain with the labels about which Deputy De Rossa spoke, or whether the labels are attached to them here. The problem is that this legislation obliges the censor in law to do certain things. If the censor complies with the Act he will have to sit down and look at each video and decide whether or not to grant a certificate. The point is being missed in this debate. It is all very well to stick on labels for guidance purposes, but we are asking the censor to issue a supply certificate. The censor should not be put into a position where he cannot give a certificate because although the work would be suitable for an 18 year old or an adult he is conscious of the fact that if he issues a certificate the video could be supplied to a ten year old. That is quite ridiculous. The chances are that in such a situation the censor would not issue a certificate because he has no option. That would be equally ridiculous. This is why I am arguing so strongly on this issue. I only want to give the censor another option so that he need not refuse a certificate altogether but can impose an age limit of 18, or whatever.
I agree with Deputy De Rossa's wording about a supply certificate. I recognise that you cannot decide on who is going to view a video once it leaves the supply centre. We cannot legislate for what goes on within the home, but at least we can control to whom the video is supplied, which in itself is some attempt at indicating to parents the suitability for viewing by children. After that, it is up to parents to decide. It is hoped that they will use commonsense. I would look for another option for the censor rather than having him decide that since the video can be supplied for viewing by anybody from infancy onwards, in keeping with section 3 of the Bill he will not issue a certificate. This would be ridiculous. It would be equally ridiculous that the same censor when watching a film can decide whether or not to impose an age limit on the film.
The video industry have informed me of their real concern, which is that the legislation will result in long delays. Somebody has been telling them that there is a little of the nod and wink stuff going on here, that even when this legislation is brought in the censor will not be looking at these videos at all. It is not right that we should fool people. We are legislators and if we pass laws we should see that they are implemented. There should be no nod and wink stuff. I do not want to be part of an Assembly that passes a quite stupid law. I am very anxious that we have some form of classification.
The difficulty is that these supply people think that they must supply the video to the censor who will view it and give it a certificate. They say that in Britain prior to releases of the work the company involved send a copy of the video to the censor who makes his decision and gives it one of the labels about which Deputy De Rossa spoke, as being suitable for 15-year olds, 18-years olds, or unlimited viewing. The video is then released. They are afraid that there will be a delay between the release in Britain and here and that, as a result, people will be crossing the Border to get a tape or video work because it is popular. Such a delay would cause serious problems. I have told the industry that if a company are releasing the work they will send a copy at the same time to the Irish censor as to the British censor so that the decisions can be made at roughly the same time.
They also spoke about extra costs imposed, but I cannot see where they come in. In accordance with this Bill, somebody must affix a label indicating that the film censor has granted a certificate and it will have to be on the spool or some other part of the video work. If that has to be done, surely a lable can be affixed showing that it is for unlimited viewing or, say, 18 years upwards. That will not cost any additional money. It is important that before we complete this legislation the Minister or his officials meet the people in the industry and find out their real concern, which is in relation to classification. There is a great deal of misunderstanding about. I am not trying to be awkward. To put a censor into a position where the only thing that he can do is grant or refuse a certificate, without giving him any intermediate option, would be stupid.
Following on the points made by Deputy Barrett and looking at the entire group of amendments that are now being taken together, I am as anxious as anybody in this House to facilitate the Minister. However, there are unresolved contradictions in relation to the text of the Bill. It has come from the Seanad and it is clear now that the Seanad version will be amended by the time the Bill completes Report Stage in this House. It behoves us, if we can, as Deputy Barrett has said, to seek to clarify what exactly is meant by some of the terms being used. On the question of definitions which figures in the first amendment of my colleague, Deputy Taylor, I certainly agree that if you are going to use language in any form of regulations that language should be specific. He is calling for a clear definition of a child.
There are two or three paradoxes occurring at the same time. I want to make one point because it affects all the amendments being taken. It is very important that the final version of the Bill when it becomes an Act would be one that strikes a reasonable balance between the viewing rights of an adult and the quite clearly damaging effects of inappropriate material on children. On that adjustment I am inclined to be slightly conservative. I do not agree with those who have seen published articles from a jurisprudence point of view, arguing that there is a direct and undisputable connection between the viewing of violence and the actual commission of crimes. In fact, other research would show in relation to the crime of rape that the entry of violent images into the fantasy world and imagination of a child is something that, while not being direct in a casual relationship, can be connected with the form of the act of violence — or the act of domination as it should more accurately be called — in terms of research literature on rape. That is for another part of the Bill. On the other hand, it is very important to avoid the heavy hand of State censorship.
That is one set of paradoxes. Another arises in relation to the question with which we are now effectively dealing, that of classification. Following on from Deputy Barrett's point, if the object of classification is to address the issue that I have just mentioned, that is to protect people who, we hope when the Bill is finished, will be accurately defined, at the same time there is a real worry as to whether the underlying problem — this is the second dimension to it — is an economic one, or one which is associated with large scale piracy. All sides of this House would be appalled at the present position which is one of very low standards and, effectively, a total robbing of the right of copyright and so forth by people who are illegally in the trade. The question is, is the classification system that will be offered by the Minister a real disincentive to the illegal operators? Will it stop the supply of this material, or will it be an additional cost on the legitimate part of the industry which is trying to straighten out the trade, if you like? If it becomes an additional cost on the legitimate part of the industry, surely the net effect will be for them to highly price their products by comparison with the cheaper and more unacceptable ones from the illegitimate side of the industry.
We come then to another problem. If the classification system is to be at once recommended but not statutorily required or enforceable by sanction, and it becomes a cost, will it not, in effect, be as likely to affect the distribution of minority classed videos as it is to affect the pornographic ones? This legislation is bristling with difficulties. The whole system of effective labelling is still totally unresolved. I support the point made by Deputy Barrett that if talks with those who are genuinely concerned within the industry and anxious to regulate it would be of assistance, they should take place.
My whole purpose in intervening at this point is to try to be of assistance in the legislation. There is one point that worries me in relation to procedures. It is the time of year when legislation gathers momentum often to drag with it its own dark consequences and we do not want that to happen in 1988.
I should like to put Deputy Higgins's mind at rest, this legislation will not gather any momentum here today bearing in mind the assurances I gave Deputy De Rossa and Deputy Colley that I would consider certain matters before Report Stage. I said I would give time to Members of the different parties to table amendments if I was unable to proceed. We are trying to process the legislation as best we can. I do not know where Deputy Barrett got the idea of nods and winks. I have not had any meetings with the videogram personnel so any political charge that might be made against me in this area is unjust. However, there has been a number of meetings with the videogram personnel and officials of my Department and I am sure Deputy Barrett is not making any allegations against officials in the Department of Justice.
We had a thorough discussion on this group of amendments on Committee Stage on 30 November. The arguments for and against classification were examined in considerable depth and towards the end of the discussion I said that a valid argument had been made that classification would be of help to parents and that I would be prepared to give further consideration to the matter to see if I could come up with something along the lines that had been discussed. I had in mind a system that would give information to parents for guidance.
As I said, classification was one of the key issues when the legislation was being drafted. The decision not to provide for it was not taken lightly but after consideration of all the relevant arguments. When I promised to have another look at the argument I was conscious of the fact that careful consideration would have to be given to any decision to change the Bill now in so far as classification is concerned. Such consideration, as was pointed out on the last occasion and again today, would involve consultations with the Film Censor, the Department of Finance and the Irish Videogram Association. I was glad to hear that Deputy Barrett had consultations with the videogram people since we referred to this matter——
I had discussions with people in the industry.
That is fair enough, I am not making any point about it except to say that the Deputy was probably informed that we also had discussions with people in the industry. Since we discussed the matter last, we had discussions with representatives of the Irish Videogram Association and with the Film Censor to see if we could do something along the lines suggested here. There should not be confrontation in any shape or form because we all want the same thing. We also had a long discussion on the matter on Second Stage.
It was clear at the meeting to which I referred that a decision to provide for classification would involve radical change in the logistics of the proposed system for the examination of the industry. However, logistics are not the be all and end all in this matter. When we last discussed the matter, I accepted that the additional costs involved would not be a stumbling block to a proper system. Deputies know that section 32 provides that the costs will be met by fees. We must also consider whether the additional costs involved can or should be met by the industry. I am certain they should be but that can be discussed at a later date.
Deputy Barrett was right in saying that classification would involve extra delay in bringing all video works within the ambit of the Bill.
I said that people in the industry——
The people in the industry believe that this will be the case. On Section 3, paragraph 25 of the explanatory memorandum does not require that the official censor should examine every video work before granting his certificate. In many cases he will be able to judge, from the title or his knowledge of the producer or otherwise, that the work is unobjectionable; but if it turns out that this is not the case, he will be able to make a prohibition order under section 6. He does not have to go through everything with a fine comb.
Where in the Bill does the Film Censor have that freedom?
In section 3. Let me finish what I was saying. It is argued that classification by the Film Censor would give information to parents and others concerning the contents of the work. That is a strong argument but whether it is true in practical terms must be examined in detail, which is the purpose of the discussions we initiated. As Deputies are aware, there is an indication on video cassettes as to the age group for which the work is suitable. The reconsideration which I promised will take a certain amount of time and I am not trying to rush the Bill. Even if the House was unwise enough — I say this deliberately — to agree to an unwise suggestion that we should finish the Bill today, it would still take a while to get things going. However, I am not looking for anything like that as the Bill must be processed properly. I will consider all the points on Committee Stage and there will be ample time for Members to table amendments on Report Stage.
The Minister's offer is reasonable. I should like clarification from the Chair as to what way the matter proceeds if the amendment in my name and that of other members of The Workers' Party is withdrawn. Can it be re-entered on Report Stage?
It can be re-entered on Report Stage.
I said the last day I was prepared not to push the issue until Report Stage and I accept the Minister's good faith——
If we cannot agree on Report Stage the Deputy will have ample time to do what he wishes, and at that stage I will give my reasoning because of the difficulties——
I am quite happy with that. I have always found the Minister to be honourable. When he says he will do something he does it. I want to make this case because the industry are concerned and I do not think their concerns are real, but if I am mistaken, perhaps the Minister would put me right.
My understanding is that in the video industry there are distributors, wholesalers and retailers. I imagine the producers of the video would apply to the censor for a certificate. This Bill does not refer to distributors, it refers to wholesalers and retailers. I imagine a retailer or a wholesaler would not apply for a certificate——
The distributor will apply.
I imagine companies like Paramount who make these films would apply for a certificate and if the censor gives it, that will go on all the films. Therefore, I cannot accept the industry's concern about delays. Presumably when they present the film to the British censor it will be presented to the Irish censor at the same time.
If they apply to the British and Irish censors at the same time, that would help us with another problem.
The industry's concern about delay is eliminated. Now we come to the second cause of concern — cost. Where is the extra cost? The certificate will either say that this film is for unlimited supply or, what I am suggesting, limited supply. All we have are two labels and somebody will have to pick one label. Whatever the censor decides is the label that will be put on these videos. I cannot see where these huge additional costs arise.
I am asking these questions because it is important for the industry that they are put on the record. If I am wrong I will be glad to hear where I am wrong. The Minister so far appears to be saying I am right. I cannot see why the industry should be so concerned if videos are classified. My advice to the industry is — and Deputy De Rossa and Deputy Higgins made the same point — that if there is a classification system there is a better chance of some videos being available on the market which might otherwise not be allowed. If there is a classification system, some videos might get a limited supply certificate, but if the Bill is passed as now presented, the only other option would be for the censor to refuse a certificate. That is where I believe the industry will have a problem. They will have to appeal and this will involve extra cost. This is where the delay comes in. There is provision in this Bill to appeal the censor's decision.
In my view it is better for the industry that the censor has another option. Instead of refusing he should have the option of issuing a certificate for over 18, over 16 or whatever. Who am I to say whether an adult should not be able to watch a particular video? I agree with Deputy Higgins that it is a completely different ball game when you are talking about children. If I am wrong perhaps the Minister would put me right before we deal with the other sections because these points have been raised with me by the industry.
I want clarification on the cost of the classification scheme. The Minister suggested that in the explanatory memorandum there is a clear reference to the fact that the censor need not look at everything, he can be guided by title.
He will not look at Donald Duck. He will give that film an unlimited certificate. He will know the films to watch——
I have every confidence in Séamus Smith, the current censor and knowing him, he is not the kind of person who would be worried about the difference between the pornographic and the erotic effect of Donald Duck but my point is the taking up of the costing of the classification system. It is only fair to those who are anxious to see what the classification system will be like, what its cost will be and what its effect will be that this question be dealt with. I understand their case is not that the costs arise in relation to rejected material but in their assumption, and from reading the legislation, of a general requirement of submitting material for classification within a system that is in itself stopping short of any legal sanction. My point to the Minister remains the same. If you were putting in good scouting conditions for those in the trade who are trying to operate within professional standards and it stops short or does not touch the principal source of all the problems this Bill is addressed to — illegal operators and those who are operating in the industry without standards — what will the net effect of it be but to make procedures more cumbersome and more expensive for the general body of material submitted for classification for those who are trying to have standards within the industry? At the same time it will not necessarily make life more difficult for the illegal operators whom we all know are the principal source of the material to which there is a consensus we would take objection even though there would be differences between us in terms of levels of definition.
I find myself going back once more to the basic approach of this Bill which was to outlaw certain videos because they were gross in some way, to take them completely out of circulation and say they were not suitable for viewing at all. The industry themselves have sought such a Bill. They know and knew costs were going to be attached to such a Bill and they have accepted that. They knew an appeal mechanism would be written into it. They accept that approach, I am sure, and the fact that costs will be associated with it, so I do not understand what Deputy Barrett is talking about in repeating what he believes to be a problem the video industry will see themselves as having.
The amendment we are dealing with relates exclusively to whether there should be classification of some kind. I argued originally here on Committee Stage and on Second Stage that there should not be classification because it cannot be implemented.
No, it cannot be.
Having listened to the debate on Committee Stage the last day I would be willing to accept that if there were a system that could be in some way implemented and would aid those looking for guidance I would support that. However, once more we have to draw the distinction between works viewed on a video machine and works viewed in a cinema and admit that the legislative restrictions one can put on viewing in a cinema are entirely different from those one can put on the viewing of a video work. Given those difficulties in enforcement, we should consider the Minister's proposal for classification that he would be willing to make on Report Stage or willing to work on in a positive way.
Deputy De Rossa has indicated he is willing to withdraw his amendment in relation to this problem. If we are to get through this Bill not just today but at all, we should move along and see what progress we can make. We have discussed this classification issue in detail and in depth, and I do not think I am hearing any new arguments this morning that pertain to it. We should move on and come back to it on Report Stage and take into account what the Minister is saying.
I have already indicated that I am prepared to withdraw the amendment and the consequential amendments also in my name that relate to this issue. It is accepted by the Minister that some form of classification is required and it is really a question of what form that classification will take. I have raised two points in relation to it and I will put the matter on record. As things stand, (1) the censor has to reject or accept a video and I believe he will tend towards the conservative, as it were, in rejecting, because he will believe that if he allows it through it will get into the hands of people for whom it is not suitable, young people in particular; (2) if he has already passed a film for adult viewing only, it automatically gets a certificate for general release and he has no right to put a classification on it. I argue that he should have a right to put a classification on it even if only for guidance, as the Minister suggests. I accept the Minister's good intentions in this regard and I ask the House to await his proposals with regard to them.
I thank the Deputies for what appears to be consensus in the House that amendment No. 1 will be withdrawn and the other amendments in the group will not be moved to give me an opportunity of doing as we have agreed. Deputy Colley is right when she says we cannot forget the basic purpose of the Bill. I will give the matter a very thorough examination. We have had meetings with the Film Censor and the Irish Videogram Association. I am not worried about passing on additional costs to the industry. Naturally I presume they would prefer this did not happen but that is of no consideration to this House.
I still do not see where their costs were.
Other areas will require to be teased out in great detail and as soon as that is done I will come back to the House. I want to put on the record of the House that I will give Members at least two weeks' notice of my intention so that they will know exactly where we stand and there will be no question of anybody springing surprises on anybody. If I can meet classification — up to now the arguments were strong against it for the reasons given by Deputy Colley a few minutes ago — for guidance for the purpose of protecting children and in some instances adults, I will gladly do it.
Acting Chairman
Is amendment No. 1 withdrawn?
As I understand it there is nothing to stop me replacing this on Report Stage.
The Deputy can reintroduce his amendments on Report Stage.
Let me say that includes amendment No. 19 and the other amendments.
Any one of the group may be reintroduced.
All right, in those circumstances to make progress I will withdraw amendment No. 1.
Amendment, by leave, withdrawn.
Amendments Nos. 2 to 4, inclusive, not moved.
Section 1 agreed to.
SECTION 2.
I move amendment No. 5:
In page 5, subsection (1) (e), line 15, to delete "1972" and substitute "1988".
This is a drafting amendment to take account of the passage, since this Bill was introduced, of the Broadcasting and Wireless Telegraphy Act, 1988. It is purely technical.
Amendment agreed to.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 5, line 43, to delete subsection (3) (c).
I put this down to get information from the Minister to clarify exactly what is involved here. As I understand it, section 2 provides for exempting certain categories of videos from the restrictions in the Bill. The one specifically referred to in amendment No. 7 is subsection (3) (c) which exempts supplies of videos outside the State. I find that difficult to understand. If we are restricting the availability of video nasties to our own citizens why are we happy to allow videos of this nature to be distributed from this State to other states and to the citizens of other states? Obviously there would be concern about video nasties in terms of the violence, the gross pornography and so on, but another aspect of it is the use of this State for the promoting of fascism. We know at the moment that material is printed here which promotes what is called the National Front in Britain, and I understand a very small group of National Front activists operate here in this State. Because this type of material is banned in Britain, Ireland is used as a base where this material is printed. I heard recently on one of these talk shows of which the Minister for Communications feels there are too many on our radio——
And Minister for Industry and Commerce.
——oh, yes, he has been promoted — that videos were now being used in West Germany to promote hatred against immigrant workers and using all sorts of devices, even video games, as a means of promoting hatred against the Turks, I understand. If this section is retained we will be allowing the State to be used as a base from which that type of material, and video nasties that deal with violence and pornography, can be produced. Will the Minister explain why this exclusion has been included? It is important that we be given the reason for that.
Once again, without appearing to be totally submerged in complexity, I should like to say that I agree entirely with the comments by Deputy De Rossa about Ireland being used as a clearing ground for material. He is right that in the absence of legislation dealing with incitement to hatred and so on, our position has been abused by those who print grossly offensive, racist and fascist material. There is evidence of that. However, we keep coming back to the question of fundamental principles. If we have standards, if we are against a product being submitted because it is on a theme of domination, violence or a mixture of both, it does not make any sense to be saying that we are of a higher sensitivity and that it is all right for somebody else. I can see that logic being applied in regard to standards for pharmaceutical supplies. We can have standards here but they may not apply to Africa, for example.
However, those points having been made, we must constantly return to the principles of the Bill and what will happen in practice. When selling a pound of butter on the European market the Kerrygold seal might be of assistance, if we are to believe the advertisements, but we must ask what impact the Bill will have on our clearing process for videos and so on. To what extent can it be applied to those who are exporting material? Will they be required to have the Irish stamp of approval on their product? Will it be a recommendation or a hindrance? Obviously, that question cannot be answered until we know the impact of the legislation. I have some sympathy for the Minister's position but Deputy De Rossa has a point in asking the Minister to outline the circumstances that led him to seek such an exemption.
The Bill is concerned with the type of videos available for viewing within the state. It is not concerned with the standards that may obtain for video recordings in other countries. That is a matter for those countries and their legislation. They must decide on the criteria suited to their standards. How could we enforce our standards in another jurisdiction?
I find a curious element of hypocrisy in all this. I am not accusing the Minister of that but there is an element of hypocrisy in regard to this issue in the Bill. It appears that it is in order to protect our own from the evils of pornography, video nasties and so on, but it is all right if we produce such videos for export. I am not talking about erotic films or Donald Duck films but about films that are quite offensive. On the one hand we are arguing that it is an offence to supply videos which may lead to crimes of one type or another but we are prepared to allow such videos to be produced here and supplied to other states, for example, Northern Ireland. That may leave us in the position of being used as a base for the production of such material. That may suit some entrepreneurial types who may see a gap in the market and consider it their role to fill it. Whatever about taking steps to prevent that happening to specifically exclude the supply of that material from the State is a mistake. For that reason I should like to press the Minister to delete the provision. That provision begs the question, why was it included. Why not set up an industry to produce that material?
This is not the same as a person deciding that he or she has an ability to write certain material because in the production of videos actors, camera people, editors and so on must be employed. In my view we are leaving Ireland open to becoming a base for the production of this type of material.
I have tabled an amendment in regard to this topic. I do not understand why the Minister has included this provision. The Bill deals with the supply of videos on the Irish market and I wonder why the Minister is anxious to point out that exempted supplies includes supplies outside the State. We are talking about videos that will be available here and we do not have a provision to deal with those who produce such material here for distribution outside the State. Presumably, those who produce such films can continue to do so if their intention is to supply a market outside the State.
There is a lot in what Deputy De Rossa has said. If we are talking about standards I presume we are referring to those that apply in any civilised society. I do not see why we should outline the standards we want and say we do not care if people produce material here that may upset citizens of other countries. When one considers the number of TV satellite stations coming on stream one wonders if we are wasting our time trying to control videos. It may be that those we will ban will be seen on a satellite channel in the future. In my view Europe should decide on certain standards and apply them in relation to videos and what is shown on television. If we do not we will be fighting a losing battle. I do not think we should make it obvious that we want certain standards here if we do not care if people produce videos that are banned here. In other words I do not see why it is mentioned at all.
I would be in sympathy with what both Deputy De Rossa and Deputy Barrett have said about there being an element of hypocrisy in the Bill regarding video works which are for supply here and which must be placed before the censor and those which go outside the State and do not have to go before the censor but it may come down to a drafting difficulty because there is a prohibition in section 4 regarding the supplying of a video recording containing a video work in respect of which a supply certificate is not in force. The word "supply" here is defined as supply in any manner whether or not for reward and therefore includes supply by way of sale etc. Every kind of supply is covered whether for export or not.
Because of the manner in which the Bill is drafted you must exclude those videos that are being supplied for consumption outside the State. This is unfortunate because it leads to the conclusion that we have two different sets of standards. It seems that one would have to redraft the Bill in a number of areas in order to get around that problem. There is another Bill going through the Houses of the Oireachtas relating to incitement to hatred and it occurs to me that the particular difficulty Deputy De Rossa foresees and which exists to a certain extent in this country in the supply of material, whether video or written but which is definitely an incitement to hatred, could be caught by that other Bill. It should be aimed at it. I would be in sympathy with taking out a provision which excludes "outside the State" specifically except that I think the rest of the Bill might run into trouble then.
I would remind Deputies that we are not talking here about manufacturing or production but about supply. If a film is made here it does not have to go before the censor of this country if it is to be shown outside the State. That has always been the position.
If it is to be supplied outside the State it does.
If an ordinary cinema film is made here, in Ardmore or elsewhere, it does not have to go to the Irish censor if it is not being shown in the State, if it is being supplied outside the State. We have always adopted this approach. I do not think we should take the view that it is an entirely new departure and a lowering of standards. It is how we have always done it.
With respect, what we have here is a new Bill relating to video recordings. The Bill is specific in that "supply" means supply in any manner, that is whether through a distributor here to another distributor who deals in Britain and whether for reward or not. That is prohibited unless there is a certificate given by the censor.
What we are talking about is supply and an exemption. In effect we are putting in place virtually the same regime that is already in place for the film industry. If a full length feature film is made in Ireland it does not need to go before the censor provided it is not being shown here. It can go immediately out of the country and then it is up to the censors in whatever country it is sent to to deal with the film.
Because it is specifically exempted.
If that is related to the video position we are doing precisely the same thing. If a video is manufactured here and is being shown here it will have to meet the supply regulations contained in this Bill. If it is not being shown here it is in exactly the same league as films have been in always.
Then you should say "shown" and not "supplied".
How do you control "shown?" If it is supplied it is likely to be shown.
It is an exemption.
With respect we will come to that in section 4. What the Minister is saying might be a description of events on the ground but it is not necessarily something that fits in easily with the wording in the Bill before this House. Section 4 (1) states:
A person who supplies or offers to supply a video recording containing a video work in respect of which a supply certificate is not in force for the time being shall be guilty of an offence unless——
(a) the supply is, or would if it took place be, an exempted supply, or
(b) the work is an exempted work.
There is a problem of reconciling that language with what the Minister has said but there is another more practical problem about it — and this point has been made already — and that is that this particular set of commodities is arranged for the exemption market. If that kind of category is created in the consumer mind I warn the Minister that it is like people going through the film advertisements to see what classifications are on them. The Minister is setting up another classification system. We need to look at this both in the way it is worded in the legislation and how it will work out in practice. There is the unresolved problem which Deputy De Rossa mentioned and to which Deputy Colley drew our attention, that is, that some of the concerns many of us have can be handled by the other legislation, for example, the incitement to hatred which legislation, I understand, will have a speedy passage through this House. There is other amending legislation, including the Bill to deal with rape, to come before the House and which will seriously affect this Bill in relation to some of the definitions of what is prohibitable material. The Minister should reflect in advance on some of these difficulties as they arise. We are dealing with section 2 and this will arise again on section 4.
I still do not understand the reason this section is in the Bill. The Minister says it concerns supply, that is fair enough but can he explain what effect would arise from the deletion of this section? In what way would those who produce and supply videos at present for export be affected by this Bill if this section was not included? The Minister said we are dealing with supply but there is not much point in going to the trouble and expense of making a video if it is not going to be supplied to somebody, it has to be supplied to somebody at the end of the day even it is only to one's friends. As I see it we are giving a nod and a wink to the emergence of a video nasty manufacturing industry in the State by having this section in the Bill.
Before the Minister replies to that, since he is also the Minister with responsibility for trade and marketing, I would ask him to draw on his experience in that area and to bear in mind the question of what the effect would be if we were selling to the larger video market. For example, if we are sending this product with the seal of approval of the Irish Republic, to Northern Ireland or Britain, would that be a major trading advantage?
The Deputy is being a little disingenuous in bringing an exports dimension into this matter but I admire his approach. However, I would argue that laying another burden on the manufacturer of videos in Ireland would be an additional constraint to trade. If the Deputy wants me to wear my trade hat I would be all for not having an additional certificate required from the manufacturer who has responsibility only for exporting. The Deputy has encouraged me to take that line of argument.
The Minister is now Minister for Justice.
I am standing in for the Minister. We have to be clear about what we are trying to do here. Deputy De Rossa asked what would be the effect of not having this section in the Bill. The effect of not having section 2 (2) (c) in the Bill would be that any video manufacturer in Ireland would be required to go to the censor for a certificate that the video was suitable for showing to an Irish audience before it is exported. It may never be shown to an Irish audience and therefore impractical to adopt this approach.
In most countries, and I use the word "most" until I get a fix on the total, the censorship procedure does not take place at the point of manufacture but rather at the point where the film is likely to be shown. It could be argued that the censorship procedure should take place at the point of manufacture but that is entirely a different question. Perhaps that would be the way to deal with this matter but it is up to each jurisdiction to decide on what it is going to allow be shown in its jurisdiction. We are being entirely consistent with the procedure that is used in regard to full length feature films. A full length feature film made here need not be submitted to the censor if it is meant for showing abroad only. If the film is meant for viewing here then it has to be submitted to the censor. It is an eminently practical solution which is also used in many other parts of the world. Each country operates different standards and we should not impose our standards in regard to video works on the French, for example. It is up to the French to decide what standards they want to apply in their own country. It would be quite cheeky to attempt to do so and that in effect is what we would be doing if this section was not contained in the Bill.
I agree that it would be very cheeky of us if we were to tell the French what they should do——
And what they should watch.
——or what they should watch, but I suggest that it would not be very cheeky of us if we were to tell them that the type of film they want to watch is not going to be allowed to be made in this country. If we were to insert the words "within the State" into the definition section this would not be necessary. It would be far better for us to do that than to leave the wording stand as it is. I would find it very difficult to justify that wording. In this legislation we are trying to prevent video nasties from being shown in this country but the approach we seem to be adopting is that we will not allow them be shown in this country but that we will allow them be made in this country. That is the interpretation I would put on the wording contained in the Bill. I would find it quite horrifying and totally hypocritical if we were to adopt that approach. This should not be allowed happen in any civilised society. If we think a particular type of film promotes violence then surely we should not encourage people to get involved in the making of such films. I suggest that one way of getting around this problem is to include the words "within the State" in the definition section.
I do not wish to delay the House on this matter but it is very important that the interpretation of the words contained in the definition section should not be enlarged by the Minister of State. I am not familiar with the legislation in regard to feature length films so I cannot claim to have any expertise in that area but I have looked through this Bill which defines the word "supply" as "supply in any manner". I am not saying that just because a video work is made in this country it should be submitted to the censor but rather it should be submitted at the point where it is being supplied, be it is for export or for supply to a world distributor. Therefore it will be caught by this definition. A very suitable solution to this problem would be, as Deputy Barrett suggests, to insert the words "within the State" into the definition section. One could argue that any legislation passed by this House can only apply within the State but questions have been asked, arising out of the wording contained in section 2 (3) (c), as to whether it does nor does not. Therefore this matter should be clarified. Therefore if we included the words "within the State" within the definition section we could delete section 2 (3) (c).
Just to be clear, is the Deputy saying that video films made in Ireland for export, irrespective of what wording is used, should go through the censorship procedure before being exported?
I am not.
Therefore would the Deputy support the general idea that if it is made for export only it need not go through the censorship procedure?
Simply because we would have no control over what happens to the film after it leaves this country. I acknowledge that our law applies only in our jurisdiction and in effect we would have no control over what is going to happen to a film after it leaves our shores. This should be made clear in the legislation and we should not appear to be giving carte blanche to those who wish to make video nasties and room to come into this country to make a film and export it. They are being given something like an imprimatur under section 2 (3) (c).
I would be quite happy to take another look at the wording so long as I am clear as to what the intention is. I also understand the point made by Deputy De Rossa, which he made very well. I just want to be clear in regard to the point made by Deputy Colley. Does the Deputy support the view, which is what we are trying to put in place, that a video film made in this city, for example, for export need not have to go through the censorship procedure? That is what I am trying to achieve.
As long as the film is not going to be supplied within the State.
If the Deputy supports that idea then I would be quite happy to take another look at the wording because what I want to achieve is to permit video films to be made in Ireland for export without them having to be viewed by the Irish censor. I am being dead straight about this. That is what I am trying to achieve. I take it from what Deputy Colley says that that is also her objective, but I am not so clear as to whether that is Deputy Barrett's objective.
As Deputy Colley has said, the present wording appears to give carte blanche and a stamp of approval.
What I am trying to achieve is to permit video films to be made here for export without them having to be viewed by the Irish censor. Would the Deputy support that general theory?
We should look at other legislation which prevents the making of video nasties.
The view that has been expressed by the Minister of State would correspond with the broad view being expressed here in relation to this Bill. My purpose in raising this issue in the first place was that we appeared to be inviting people to say an invitation has been extended to produce video nasties here and that there would be no problems as long as they were going to be supplied to Northern Ireland, Liverpool, Glasgow, London or Paris. I believe that kind of invitation should not be extended under this legislation. The compromise proposal made by Deputy Barrett is a good one, that the words "within the State" be inserted into the definition section. Whether we permit the making of video nasties to go ahead in this State is, as Deputy Barrett has said, a question to be dealt with under other legislation. One question which needs urgent attention is whether we permit fascist type material to be printed within the State. I am aware that the Incitement to Hatred Bill has passed through the Seanad and I hope it will come before the House in the new year. We will deal with that question to some extent under this Bill. Generally we appear to be agreed that the question of whether we censor material going abroad cannot be dealt with under this Bill and the question of whether that material should be made here or not also has to be dealt with under another Bill. This Bill should not invite those who might want to produce that kind of material to say: "Here is a loophole and it is an invitation to us to carry on". That is why we should delete section 2 (3) (c) from the Bill.
Now that I am clear on the intentions of the Deputies, which are very close to our intentions, I am happy to give an assurance that I will look closely at the wording between now and Report Stage to see if I can meet the wishes of the Deputies.
On that understanding, I will withdraw the amendment with the right to re-enter it on Report Stage.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
SECTION 3.
Amendments Nos. 8, 9, 10 and 11 are alternatives to amendment No. 7a. It is proposed, therefore, to take amendments Nos. 7a, 8, 9, 10 and 11 together for the purposes of discussion.
I move amendment No. 7a:
In page 6, subsection (1), to delete lines 3 to 13 and substitute the following:
"(a) the work depicts to a significant extent acts of force or restraint associated with human sexual activity, or
(b) the work depicts to a significant extent the mutilation or torture of, or other acts of gross violence towards, humans or animals, or
(c) the work depicts to a significant extent human urinary or excretory functions.
or is designed to any extent to stimulate or encourage anything falling with paragraphs (a) or (b) above or could reasonably be regarded as so doing.".
The main purpose of this amendment in the name of Deputy Taylor is to give us a form of wording which can be operated. The wording in lines 3 to 13 of section 3 are extremely vague and built into them is an assumption which I do not think is sustainable. Section 3 (1) (a) (i) says "would be likely to cause persons to commit crimes ..." whereas paragraph (a) of Deputy Taylor's amendment says "the work depicts to a significant extent acts of force or restraint associated with human sexual activity..." The wording used in the amendment is an acceptance of acts of sexual violence which is consistent with new, sensitive and more modern interpretations of acts of sexual violence. I want to give the Minister and the Government fair warning that when legislation on rape comes before the House I intend to oppose any regression to 19th century definitions of rape which technically refer to an entirely penile definition of rape or which, in addition, seeks to retain any notion about the fear of becoming pregnant.
The relevance of those remarks to the amendment I have moved is that the wording suggested by Deputy Taylor accepts that acts of sexual violence are more usually characterised by the impulse of domination and by the impulse to humiliate a person by means of sexual gratification. It is only those who, from a sociological point of view, I might call "flat earthers", would argue that a woman who said there was no prospect of her becoming pregnant was therefore not really raped. Someone who argues that should head for some of the weirder and remoter areas of Islam — I do not want to insult Islam because it is more progressive than that in many respects. The thinking behind the wording in this amendment is that the section should be more precise, egalitarian and fairer from the point of view of what is involved in the actions referred to.
Subsection (b) of amendment 7a states "the work depicts to a significant extent the multilation of torture of, or other acts of gross violence towards, humans or animals...". I believe this wording would to a significant extent protect people in terms of the balance of material in a video. It is necessary at times for artistic purposes to retain certain images in a video but it is entirely different when the representatives symbol is distorted totally so that it appeals to a sadistic impulse or whatever. This is entirely different from the use of material in a balanced way for artistic purposes and hence the inclusion in Deputy Taylor's amendment of the words' "the mutiliation or torture of, or other acts of gross violence towards humans or animals..."
I might say in this regard that we are not taking into account in this discussion — and I know it has taken place before — the conjunction of two sets of covert actions. There is an element of seediness in relation to the viewing of excessively cruel and sadistic kinds of videos. There is a seediness and covertness to that but there is equally a seediness, covertness and an illegality in the distribution and supply of videos from under the counter by someone who is not a member of the regulated part of the industry. One keeps hitting off part of the damage being done by illegal operators under paragraph (b) of the amendment which is closely related to paragraph (c) which refers to "human urinary or excretory functions". A considerable amount of work has been initiated by some people associated in the Kinsey Institute in Indiana University which clearly identifies these as categories over which there should be no trouble. The use of the words "stimulate or encourage" in the amendment is better language than the language used in the Bill in another way. Section 3 (1) (a) (i) of the Bill states "would be likely to cause persons to commit crimes". One would be in the courts for years if one used that language because one would not be able to show a causative relationship between viewing a video and the commission of a crime. It is clear, from having looked at the literature on crimonology on rapists and murderers who have been interviewed, that it is the methodology of the crime which is at once facilitated or made easy when a person draws on their imagination which has been twisted and this affects the form of the act rather than the commission of it. If one uses the older language of causal relationship it would be a very easy defence to say that X did not cause Y whereas if one argues that X clearly facilitated the commission of Y one would use the language in this amendment and be on much sounder ground.
To a large extent we are dealing with the heart of the Bill in this section and we are into the area of whether or not a video or film can incite a person to crime. I have said before in relation to this Bill that I am not convinced that it does incite a reasonably well balanced individual to commit crimes or acts of violence. My understanding is that films or videos of this kind are more likely to disgust and anger people who view them.
We must draw the distinction between the type of "nasties" we are trying to deal with and the erotic film. One person's erotica may well be another person's pornography and vice versa. This Bill is not intended to deal with erotic films but with films or videos which may incite people to commit crime. It is an extremely difficult thing to define. The difficulty is reflected by the number of amendments attempting to define more precisely what we mean by incitement.
Our amendments Nos. 8, 10 and 11 are attempting to reach a balance between what is perceived to be needed and the protection of the right of the individual adult to view material which he or she regards as suitable. Amendment No. 8 proposes to delete part of subsection (1) and to substitute the following:
"(i) would be likely to cause persons to commit crimes, by inciting violence, or by stirring up hatred against any group of persons on account of their race, nationality, religion, gender or sexual orientation, or".
While we seem to be happy enough to ban films which we think will incite people to hatred on account of a person's religion, race or nationality, the Minister in the Seanad was unwilling to take on board the fact that incitement to hatred can also occur because of a person's sexual orientation. In this enlightened age it is not unreasonable to expect that when we are dealing with the issue of incitement we should include sexual orientation to ensure that this type of video is not circulated.
Amendment No. 10 is as follows:
In page 6, subsection (1), line 8, to delete "any" and substitute "grossly".
This is an attempt to define more closely what we are trying to achieve. The censor will be obliged as things stand to ban any film, the viewing of which would tend by reason of the inclusion in it of any obscene or indecent matter to deprave or corrupt a person who might view it. We feel that the word "any" gives too wide a brief to the censor. The question of what is obscene and what is indecent is largely a matter of personal taste. We would be happier if the words "grossly obscene" and "grossly indecent" were part of the guidelines on which the censor would operate.
Amendment No. 11 states:
In page 6, subsection (1), line 12, to delete "depicts" and substitute "incites".
This is another attempt to define things more closely. It is unreasonable to ban something simply because it depicts gross violence and cruelty. A film of a good standard might include scenes of this kind as part of its message, which might be quite moral. I have read reviews of a film in circulation in the United States which deals fairly explicitly with rape and contains scenes which are quite disturbing. The net effect of the film is moral since it clearly makes the case against rape and against the view that a woman is responsible for her own misfortune. I do not know what view our censor will take if the film arrives here. We need to be more precise in the terms we use in defining what the censor may or may not pass. I am not arguing that what I propose is the best way. Deputies Taylor, Colley and others have indicated that it should be done in a different way. Our purpose is to ensure that undue pressure is not placed on the censor to eliminate films which would otherwise pass if he had a freer hand. I stress again the need to include sexual orientation as one of the issues which the censor should take into account when deciding whether a film incites hatred.
It is interesting that we are proposing to ban the supply of videos which would depict gross violence or cruelty, including mutilation and torture of human beings or animals, but we fail to legislate for the banning of enclosed hare coursing which, by any standards, involves gross violence, cruelty and multilation of animals. We will be in the curious position that we will not be entitled to watch this kind of mutilation on video but we can go to the country and watch this activity live, without any restrictions as to age or sex. There are differing views as to whether hare coursing is cruel. I believe it is but some members of my party do nor hold that view. There are divided opinions in other parties on that issue. I draw the attention of the House to the fact that we are proposing to ban the depiction of gross cruelty to animals on video but we are quite happy to allow gross cruelty to animals by way of hare coursing to occur freely and without hindrance.
I think Deputy De Rossa is right in saying that this is the core of the Bill because it is the reasoning on which the censor must base his decision. Essentially it is the only direction he is given as to what decision he should make about a video work, whether to allow it to be supplied or whether to prohibit it. Given that that is his only advice from us, the legislators, I shudder to think what faces him if he has to implement the words: "that he is of opinion that the work is unfit for viewing because the viewing of it would be likely to cause persons to commit crimes whether by inciting or encouraging them ....". That wording is very wide in its definition and would be impossible to implement. Not alone would the censor have problems in deciding what would or would not be likely to cause persons of whatever ilk to commit crimes but if it were tested in the courts they would have great difficulty in deciding what the real definition should be.
It is for that reason that I sought to include amendment No. 9 which proposes to change that wording to read that the viewing of it — that is the work — would incite or encourage persons to commit crimes whether by inciting or encouraging them to do so or by indicating or suggesting ways .... In other words, the definite incitement or encouragement must be clear in the video. It is not good enough simply to say "it would be likely to" because that would be an extremely subjective definition and what may be likely to cause me to commit crimes can be very different from what may be likely to cause other people to commit them.
When passing legislation we must make it as clear and as definite as possible from the point of view of the public so that they will know what they have to adhere to and also from the point of view of the censor who will have to make decisions on that basis. The enforcement of this legislation depends on the courts being able to properly define it. It seems the film or video must actually incite or encourage persons to commit crimes. Otherwise it should not come under this definition.
On Second Stage I referred to a number of innocent films that have been extremely popular over the years and which, to my mind, would definitely fall within the terms of section 3 (1) (a) (i) because they depict how a crime has been committed and ways of avoiding detection. I mentioned a couple of them such as "How to Steal a Million" and "Top-kapi".
"The Great Train Robbery".
"The Sting".
Yes, "The Great Train Robbery". Any number of them would be, under this definition, likely to cause somebody to commit a crime by depicting how it is committed and ways of avoiding detection. The Minister may smile——
Those movies would not incite me to commit a crime.
That is the point I am making, that it is a subjective decision.
Of the censor.
How is the censor to decide whether it would be likely to cause you or any other person to commit a crime by giving the general idea of, first, executing the crime and, secondly, avoiding detection? The Minister has made my point entirely. Whatever formula of words we come up with in the — it may be that we will not come up with a definite formula until Report Stage — this definition is not closely defined enough. It will not allow the censor to make a proper decision. It will, as Deputy De Rossa has said, constrain him so that he may not be inclined to give a supply certificate when there is no good reason in many instances for not doing so. If a case is appealed it will certainly cause difficulties in the courts because it will be impossible to apply such a subjective definition. The Minister and the Minister for Justice should think again about this definition. It is at the very heart of the Bill and if it is not right the Bill will fall and will not take effect.
I have not tabled an amendment to this section for the simple reason that I was holding fire until Report Stage, if necessary, until I got some explanations from the Minister. Deputy Colley was right in saying that we could argue all day as to what is the best wording. What we are trying to do here is to find words that one would regard as basic commonsense. At the end of the day we appoint a film censor and hope that the individual involved uses basic commonsense. I do not envy any parliamentary draftsman or the officials in the Department of Justice who have to put words like this into a section. There is a lot of merit in what Deputies Michael Higgins, De Rossa and Ann Colley have said. I do not know which wording is the best. I would not like to see somebody interpreting a set of words in a way that was never intended. The wording in section 3 (1) (a) (i) could cause problems. It highlights the reason there should be some form of classification.
What may incite or encourage persons to commit crimes by indicating or suggesting ways of doing so or of avoiding detection can vary between an adult and a child. This highlights the need to give the censor some discretion. He can decide that in accordance with the wording of the Act an adult would not be affected by a certain film but at the same time he has to be conscious of the fact that a ten year old could be affected. He will be faced with a terrible dilemma of either granting or refusing permission to see the film. That is the kernel of the problem.
From the record of our censors in the last number of years we have been very fortunate that they have been people who have used their heads. There has been the odd quibble but by and large I do not think anybody has complaints. The censors have done a fine job and I hope that will continue. I would not like to see the censor's hands tied behind his back in terms of doing his job and using commonsense. This section ties in with classification. Whatever words are used will depend on the person who will be viewing the film.
The Minister said that some of the films Deputy Colley listed certainly would not cause him any great difficulties but I wonder would they cause difficulties to a 14 or 15 year old. This is for the judgement of the censor. Whatever set of words are used, the censor has to have some discretion. Above all, let us not put ourselves in a position where somebody will walk into our clinics or meet us in the street and ask us why a film with an over 18's certificate, that can be viewed by persons of 18 years and over, is on sale or for hire in the local video library where anybody can walk in and get it. That is the kernel of the problem. Once a film gets clearance from the censor and a video is produced the censor is obliged to issue a certificate in accordance with the provisions of this section. Therefore the position is that he looks at it and says to himself this is a film for over 18's and anybody can have it as a video. That is quite ridiculous.
I do not know what is the best set of words to use here. In my view it all depends on who the viewer will be. The package classification and the provisions of this section should be taken together. I hope we will look at this as a package on Report Stage in order to ascertain whether we are producing sensible legislation. There is no point in amending one section like this one and not doing so somewhere else.
I should like to comment on the amendments and the relevant sections. I should say that, at the drafting stage, the criteria in existing legislation in relation to censorship was examined closely. The two relevant sets of statutes are the Censorship of Films Acts, 1923 to 1970, and the censorship of Publications Acts, 1929 to 1967. The wording of British legislation was considered also, in particular the wording of the Obscene Publications Act, 1959 and the Video Recordings Act, 1984. In addition, the requirements of today's world were taken into account, in particular the special characteristics of video works.
The wording of sections 3 and 6 was arrived at only after quite an amount of consideration and teasing out what was required. One would like to arrive at the position where there would be very detailed criteria to enable the Film Censor to make a decision. On the other hand, he must have scope to judge video works on their merits having particular regard to the way in which topics are dealt with in any given work. Here I agree very much with Deputy Barrett that we should allow the maximum amount of discretion to the official censor.
In the course of the Second Stage debate on this Bill and again this morning there was reference to the film entitled "How to Steal a Million" as a film which showed how to commit a crime and get away with it. The question was asked, "Would it be banned under the criteria set out in section 3". I know that it did get a certificate for viewing in cinemas here.
Deputies are aware that section 3 (2) provides that the official censor shall not refuse to grant a supply certificate in respect of a video work in respect of which a general certificate or a limited certificate under the Censorship of Films Acts, 1923 to 1970, is in force. Accordingly, the version of this film which got cinema certificates here would get a supply certificate also. The position then is that a video work would not be refused a supply certificate simply because it portrayed how to commit a crime or avoid detection. The Film Censor would have to be of the opinion that the work would be unfit for viewing because its viewing would be likely to cause persons to commit crimes, whether by inciting or encouraging them to do so, or by indicating or suggesting means of doing so, or of avoiding detection.
One circumstance in which this would arise is when a particular crime is depicted in such detail and in such an attractive manner as to be likely to incite people to commit the crime. A possible example might be a detailed portrayal of how to steal a car without having the ignition key. A similar example would be a detailed description of how to inject oneself with drugs. However, the kernel of the matter is that the official censor would have to be satisfied that the work was unfit for viewing because its viewing would be likely to cause persons to commit crimes. Obviously that would not be the case in the large percentage of video works which portray a crime of various types.
Another example might be the way in which violence towards humans is depicted in a film. Deputies will be aware that one of the main categories which will be outlawed under the provisions of this Bill will be those video works that depict violence against humans or animals. There is no doubt that there are many such video works available, but they will be banned under this Bill because the Film Censor will be of the opinion that they depict acts of gross violence or cruelty towards humans or animals.
However, there will be other video works which depict gross violence or cruelty towards humans which will not be banned. Some Deputies will be aware of a recent film entitled "Platoon" about the war in Vietnam and showed some of the terrible violence suffered by soldiers in that war and some of the terrible violence and cruel acts that they, in turn, inflicted on other human beings. However, the film treats these violent and cruel scenes in a manner that does not glorify them or in any way invite imitation.
That is certainly a matter of opinion.
The whole atmosphere of the film is anti-war. I take it the Deputy has seen the film.
Oh, yes.
It clearly makes the case that such violence and cruelty is wrong and harmful not only to its victims but also to its perpetrators. This film "Platoon" received a certificate for viewing in cinemas here. Therefore the video recording of it could not be banned under this Bill.
Had the film an age limit?
I have not that information available. Should a comparable work come before the official censor initially as a video work he would have to consider it in the context of whether it was unfit for viewing because it depicts acts of gross violence or cruelty towards humans. If course that is a decision that the censor himself will have to take. I think I have clearly indicated that there is a basic difference between the violence and cruelty depicted in a film such as "Platoon" and the violence and cruelty depicted in so-called video nasties.
A further point I might make about the criteria contained in sections 3 and 6 is that they have to be read very carefully indeed. For instance, section 3 does not provide that a video film should be refused a supply certificate simply because it depicts acts of gross violence or cruelty towards humans. One must go further back in the wording of the section to find that the censor must be of the opinion that the work is unfit for viewing because it depicts acts of gross violence or cruelty towards humans or animals.
I have already outlined the different types of films dealing with violence. The point I am making here is that a very careful reading of the wording of the section is absolutely essential, reading it as a whole and not piecemeal.
There are two points I want to emphasise particularly in relation to the criteria to be applied by the official censor. There is, first, the ground stated in sections 3 (1) (b) and 6 (1), that a work depicts acts of gross violence or cruelty, which is different from the two grounds stated in section 3 (1) (a) — conduciveness to crime and depravity — in that the depiction of gross violence or cruelty itself is to be a ground for banning a video work, provided that the depiction is so bad as to render the work unfit for viewing, whereas the other grounds depend on the effect that viewing of the work would be likely to have on the behaviour of its viewer. In other words, the depiction of gross violence or cruelty may have a general degrading effect on people even though it may not necessarily be likely to cause them to imitate the violence or cruelty depicted, or otherwise to conduce to crime or immoral behaviour.
The second point I would make is that the violence or cruelty depicted must be gross violence or cruelty. Obviously it is difficult, in legislation of this kind, to satisfy all points of view but I am convinced that the words "gross violence or cruelty" constitute the most appropriate test. To say only "violence or cruelty"— even with the condition that the video work must be unfit for viewing — seems to me to be a feeble test and one too vague to apply in the present context. The word "gross" serves to convey the idea that the violence or cruelty is depicted in a way which, by any reasonable standards, should be regarded as inexcusable. This appears to me to be the correct test.
I might now refer to the amendments specifically. I will begin with amendment No. 8 in the names of Deputies De Rossa and others which seeks to change section 3 (1) (a). I do not accept that the wording proposed in the amendment constitutes an improvement on the existing wording. In so far as the wording relates to incitement or hatred, Deputies will be aware that a Bill to prohibit incitement or hatred on grounds of race, religion or nationality is at present on the Order Paper. The purpose of that Bill is to put on the Statute Book one of the measures necessary to enable this country to ratify the UN Covenant on Civil and Political Rights.
Under the Bill it will be an offence to distribute, show or play a recording of visual images or sounds that are threatening, abusive or insulting and are intended or are likely to stir up hatred on the grounds specified. Thus, the stirring up of racial, religious or national hatred by means of the distribution, showing or playing of videos will be covered in the incitement legislation. Incitement to hatred on any other ground or against any particular named group would be outside the scope of what I am trying to achieve in the incitement to hatred Bill and I would regard a provision on incitement to hatred on any ground as being totally unnecessary in the context of this Bill, as well as being outside its scope.
Amendment No. 9 in the name of Deputy Colley will not be any great improvement on the section as drafted. Under the section as drafted the official censor has to consider whether the viewing of the video work would be likely to cause persons to commit crimes whether by inciting or encouraging them to do so. The amendment would require the censor to consider whether the viewing of the work would incite or encourage them and so on. But the censor is not a clairvoyant, and surely the natural question for him to ask himself is "would this work be likely to incite viewers, to cause people to commit crimes?"— not "would it incite them?" A censor could not approach it with that sort of certainty. How would a censor know that something would incite someone to violence? A censor would know that it might be likely to incite people but he would not know that it would incite them. That is why the word "likely" is a more practical approach.
As regards amendment No. 10 which proposes replacing "any" with "grossly" at line 8 of page 6, the words "indecent" or "obscene" have to be read in the context of the subsection as a whole. This requires that the censor must be of the opinion that the work is unfit for viewing because the viewing of it would tend, by reason of the inclusion in it of any obscene or indecent matter to deprave or corrupt persons who might view it. Accordingly the word "grossly" is unnecessary as it is already a requirement that the obscene or indecent matter would tend to deprave or corrupt viewers.
Amendment No. 11 proposes to delete "depicts" and replace it with "incites". This would alter completely the purpose of this subparagraph. As I have already said, the portrayal of acts of gross violence or cruelty towards humans or animals would be sufficient for the refusal of a supply certificate if the censor was of the opinion that that made the work unfit for viewing. Some videos are so horrific in this regard that the wording of the subparagraph as it stands is clearly necessary. Accordingly, I am convinced that a change should not be made.
Deputy Taylor's amendment, as outlined this morning by Deputy Higgins has a close resemblance to section (2) (2) of the British Video Recording Act, 1984. There is no special merit in the British provisions as compared with ours.
Why?
There is no special merit in their wording over ours. Perhaps the chief difference in substance is that the amendment requires that the video work should depict gross violence etc. "to a significant extent" but this is unnecessary in our Bill, because the same purpose, that of giving the censor a reasonable discretion to consider the extent of the possible harmful effect of the video work is served in our Bill by the requirement that the censor must "be of the opinion that the work is unfit for viewing" because of the objectionable feature in question. If the work contains the objectionable feature only to an insignificant extent, the censor could not ban it under the Deputy's amendment, although he might recommend cuts in a doubtful case.
I agree with the Minister's view that differs between violence portrayed in a film or video for the sake of violence, and violence which is incidental to a general moral view which is taken by the film. One can think of many films containing severe violent scenes which reinforce the moral view the film takes. To differentiate between those and films which portray violence for its own sake is essential in this legislation. Films that depict violence for the sake of violence are the ones this Bill is intending to remove from circulation.
The difficulty I have with this Bill is not the thrust of the section but whether it can be enforced in its present form. The only words causing difficulty are those words "would be likely to." I differ with the Minister when he says that my amendment would impose a duty on the censor which would mean that he must express a certainty about the video and its incitment or encouragement to commit a crime or to avoid detection and so on. The censor is required to be certain. In his role he is required to make a decision with regard to films in relation to whether a film is suitable for a 15 year old or an 18 year old or whatever. The censor must be certain about his decision because it will be implemented. If we are to differentiate between films which portray violence for the sake of violence and those that portray violence simply as an incidental to the moral view being taken in the film the censor should be entitled to look for elements in the film which incite or encourage people to commit crimes. That should be the thrust of his searching of the film. If the section is more loosely defined the censor does not know on what criteria to judge. If the end result that the Minister and the Department want is to remove from circulation films which incite people to commit crimes, why not just say it instead of beating around the bush and leaving things wide open at every level at which decisions will be taken, first with the censor, then moving on to the appeals board and to the courts? I can see that happening. At least if the censor is definitely looking for elements in a film which will incite a person to commit crimes he knows what he is about, the distributors know what they are about and the difficulties are reduced. The mind boggles at the kind of claims that could be made.
Deputies have said in this debate that the present Film Censor is somebody they would entrust with the kinds of tasks involved in this Bill. They have not had any problems with the Film Censor nor with his decisions since he has been appointed. However, we do not know what sort of person will be in that job in the future. We must ensure in this legislation that the wishes of the Oireachtas which represent the wishes of the people are as closely as possible represented in the legislation. If we leave the section as it is, we could find that our wishes will not be upheld, that they will be distorted and watered down, or that our wishes will be increased beyond what we intended. We should not leave open that possibility. We should be specific. If we do not want people to be incited or encouraged to commit crimes we should say that and not introduce the element of uncertainty where the words "would be likely to" are introduced.
Other speakers have said that this is the very heart of the Bill and I quite agree. It is something that must be got right. It is also the section with which I am least happy. A number of its assumptions are very questionable. I think it is possible to reconcile some of the arguments that have been made within what one might call a minimalist specificity. By that I mean that the whole thrust of this section should not be such as to create the impression that a kind of moral dictionary had been written which had been handed to the censor and that now the censor would take decisions of taste and, indeed, moral decisions that, in a way, allowed the viewing public and the discretionary adult public to abdicate entirely from decisions of taste or of a moral kind. It is in that sense that I am using the phrase that I favour a minimalist approach.
If one can say that, one is not contradicting, either, the possibility of being specific within a minimalist approach. Here I come immediately to the point being made by Deputy De Rossa. The disadvantage of the present formulation is that it is generally vague and at the same time does not meet any of the real concerns. What I mean by being specific within a minimalist approach in this section is that there are things that have been mentioned. For example, amendment No. 8 in the names of Deputy De Rossa and other Deputies, includes the phrase "would be likely to cause persons to commit crimes, by inciting violence, or by stirring up hatred against any group of persons on account of their race, nationality, religion, gender or sexual orientation..."
I have only one quibble with my colleagues on this side of the House both Deputy De Rossa and Deputy Colley. It is in relation to a point I had made earlier. Frankly, I am not impressed by any of what I have heard from the Minister of State or the Minister for Justice in relation to answering any point about causality. The published reports in the seventies in the United States and later in Britain and a number of other countries have clearly rejected a causality thesis for the idea of depicted material being causally related to crime. There is but one report that sustains such a view and that is a mid-eighties report heavily influenced by the moral Right under the Reagan Presidency which had a blunderbuss approach towards what it saw was the corruption of morals by pornographic materials in the United States. What the people who avoid these arguments are missing is that the nature of the visual medium is that its formative influence on attitude and orientation is an accumulative process and it is as much subliminal as direct. In fact, it is far more subliminal.
Let us declare a hypothetical vacancy in the censorship office for a moment and say we are handing the censor this document on which he is supposed to operate. No doubt he will put it on the wall, look at it and see the words, "would be likely to cause persons to commit crimes". What is there to guide him in this? The Minister of State might convey this to my good friends in the Department with whom I have had a lot in common for nearly 20 years on this issue of the study of the nature of crime in Ireland for which there is the thinnest research. I have been working in this field since 1969. We have the least amount of evidence on the nature of the committing of crimes. There is nothing to guide anybody in relation to crimes of sexual violence. They have not been studied. The censor asks himself if a video would be likely to cause a person to commit a crime. With respect to him, everybody can have an opinion on that. I know people who say that "Dallas" and "Falcon Crest" are deeply corrupting, in a more sinister way, of the social values of the Irish public and I listen to these people.
"Coronation Street".
And "Neighbours" I shall not go down that road of what might possibly provoke or influence attitudes.
Let us be blunt about it, that is unworkable. We come to the phrase "whether by inciting or encouraging...". I do not go along entirely with the arguments that the material must directly incite or encourage because I know that the nature of the visual medium is not of that kind. One does not have to have a person saying "Go on and do it". It would be bad television, bad visual material. The nature of the medium is one that is indirect and formative rather than direct. Why these assumptions are being dragged in, I do not know. I would prefer something minimalist but adequate, that did not create the impression that any Bill or office of the State, including the censor, can remove personal responsibility from adults at different levels of vulnerability, sophistication and literacy but within that minimalist approach there should not be such vagueness that it could mean anything.
Let us take the position of a future conservative censor. He has some material submitted to him. The moral entrepreneurs take off after him, creating a sense of moral panic around a particular film and saying that people will be dragging their innocent children to see it. Even if you put a label of a film as suitable for over eighteens, someone will tell you that their ten year old child wept and was corrupted for life by that film. They will organise meetings and invite daft public representatives to listen to them. The poor censor, having been clobbered once, will have this guiding bible that the easiest way out of difficulty is simply to ban as much as possible in that area. The hair literally stood on my head at the Minister's reply that in preparing this section he had a look at the Censorship of Publications Act of 1929, amended in 1967.
Have I incited the Deputy?
You have, indeed. I, unfortunately, have looked at the 1929 Act and the Oireachtas debates surrounding it. All I can say is that I congratulate the present Tánaiste and Minister for Foreign Affairs, Deputy Lenihan, for realising in 1967 that the shutters might be opened and the national must let out to some small degree. The idea of looking at the legislation of 1929 is singularly unconvincing.
Deputy De Rossa's point is that they want to have it both minimalist and sufficient. You must surely realise that the greatest real lobby, those who do not want damaging material are people who are worried about violence against, particularly, women and children. Why not accommodate some of that by some of the formulations that have been suggested? I would not be able to recommend to the Labour Party that they should support this section or these wordings without the amendments that have been tabled being very seriously addressed. As it stands, I do not think that I could recommend that the section be supported.
Progress reported; Committee to sit again.