SELLING ILLEGAL DVDs - IS NOT ILLEGAL

People who sell DVDs and videos illegally, including pornography to children, cannot be prosecuted because of a legislative blunder dating back 25 years. It could also pave the way for the hundreds of people who have been convicted of video piracy and underage selling in the last quarter of a century to sue for damages. In a major embarrassment crossing several governments, officials have discovered the 1984 act that allows prosecutions for selling illegal videos and DVDs or breaches of age classifications is unenforceable. It means an effective free-for-all for anyone breaching video sales laws, including supplying “knock-off” or illegal copies, porn and other 18-only films to minors or hard-core pornographic films outside of licensed sex shops.

The blunder centres on the 1984 Video Recordings Act which the then British Tory Government should have notified with the European Commission but failed to do so. The error also went unnoticed when the laws were amended in 1993 and 1994. The technicality means the act is unenforceable and urgent action is now under way to notify Europe and re-enact the legislation. However, the process will take at least three months and is unlikely to be rectified before the New Year. In the meantime no one can be prosecuted under the laws and the Department for Culture, Media and Sport has written to relevant bodies telling them not to pursue any further prosecutions because of the “serious issue”.

Don Foster, the Lib Dem culture, media and sport spokesman, said, “The Conservative’s incompetence when they were in Government has made laws designed to prevent video piracy and protect children from harmful DVDs unenforceable and thrown film censorship into chaos. This must be a massive embarrassment to the Tories, especially as David Cameron was the special adviser to the Home Secretary in 1993 when the law was amended. Until the problems have been overcome we must hope that legitimate retailers will observe the spirit of the act to protect our children from violent and explicit DVDs and video games.”

However, Jeremy Hunt, shadow culture secretary, said, "It is outrageous that an administrative error of this sort could go unnoticed for so many years. Much of the problem would have been avoided if they had sorted out the classification of video games earlier, as we and many others in the industry have been urging them to do." The blunder was discovered as the DCMS was preparing to establish a new video games classification system. There were 1,659 successful prosecutions under the act between 1995 and 2007, the only figures available, and lawyers for the DCMS insist those convictions will remain safe.

However, sources accepted such assurances could not guarantee that legal challenges could still be made as the individuals were effectively prosecuted under an Act that should not have been enforced. The Act also required that videos carry the film classification, which now is also in question. However, Lavinia Carey, director general of the British Video Association which represents 90% of the industry, said, "All our members will be continuing to do their business as though the Act was still in force. They will not be taking advantage of this legal loophole. It would not be a responsible way to trade.” (Source: Daily Telegraph, Aug/09)