For some time now, the fanatical, censorial moralists of the UK have been determined to close a 'loophole' in the already redundant Video recordings Act, namely the provision that allows documentary, educational, music and sports releases to be released as 'exempt' from BBFC approval. There were good reasons why this provision was in the law to begin with – in a rare moment of sanity, the government accepted that there was nothing to be gained from making people submit videos of steam trains or football matches to the BBFC, given the cost and non-contentious nature of the material. To have enforced BBFC approval of such material would have essentially killed off a lot of harmless niche interest releases as well as making it prohibitively expensive to issue informational / educational films.

But for the likes of Reg Bailey, this was an exemption that allowed innocent kiddies to be corrupted by music videos by the likes of Miley Cyrus and Rihanna. No matter that these wide-eyed nippers would've seen said videos and performances on TV or the internet, neither of which are covered by the VRA – this loophole needed to be closed. Naturally, the BBFC backed this campaign, no doubt thrilled at the idea of making £10 plus VAT a minute on all this additional material.

Predictably, the government – worked up by the non-studies carried out by Bailey and his ilk – has agreed with the campaign, and so The Department for Culture, Media and Sport has published a draft bill to remove the current blanket exemptions for music, sports, religious and educational videos. In keeping with our fine democracy, the changes will be applied via a Statutory Instrument, meaning that it will not have to be debated in parliament or submitted to any level of scrutiny.

This new bill will allow the exemption to remain for material that would be rated U or PG, but anything that would be rated 12 or higher would now need to be submitted to the BBFC. But the current law states that if a video work contains the sort of material that would trigger a 15 or 18 rating, then it needs to be submitted anyway. This is why you might sometimes see a previously 'exempt' title pulled from the shelves and replaced with a BBFC approved version – this certainly happened to at least one Alice Cooper concert video, where the stage violence was decreed too much for it to be considered Exempt.

The current regulations, found in Subsection (2) of the current Video recordings Act read as follows:

(2) A video work is not an exempted work for those purposes if, to any significant extent, it depicts--
(a) human sexual activity of acts of force or restraint associated with such activity;|
(b) mutilation or torture of, or other acts of gross violence towards, humans or animals;
(c) human genital organs or human urinary or excretory functions;
(d) techniques likely to be useful in the commission of offences;

The new rules offer up a longer list of contents that would trigger non-exemption, but I'm sure I'm not the only person to have more questions than answers after reading this checklist. Here it is:

(2) A video work is not an exempted work for those purposes if it does one or more of the following-
(a) it depicts or promotes violence or threats of violence;
(b) it depicts the immediate aftermath of violence on human or animal characters;
(c) it depicts an imitable dangerous activity without also depicting that the activity may endanger the welfare or health of a human or animal character;
(d) it promotes an imitable dangerous activity;
(e) it depicts or promotes activities involving illegal drugs or the misuse of drugs;
(f) it promotes the use of alcohol or tobacco;
(g) it depicts or promotes suicide or attempted suicide, or depicts the immediate aftermath of such an event;
(h) it depicts or promotes any act of scarification or mutilation of a person, or of self-harm, or depicts the immediate aftermath of such an act;
(i) it depicts techniques likely to be useful in the commission of offences or, through its depiction of criminal activity, promotes the commission of offences;
(j) it includes words or images intended or likely to convey a sexual message (ignoring words or images depicting any mild sexual behaviour);
(k) it depicts human sexual activity (ignoring any depictions of mild sexual activity);
(l) it depicts or promotes acts of force or restraint associated with human sexual activity;
(m) it depicts human genital organs or human urinary or excretory functions (unless the depiction is for a medical, scientific or educational purpose);
(n) it includes swearing (ignoring any mild bad language); or
(o) it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation, or otherwise.

These Regulations do not apply in relation to any supply of a video work which was first placed on the market before [...] 2014

Now, it seems to me that the current rules are pretty clear, but these new rules are vague enough to allow a whole bunch of the material that is causing the moralisers to have kittens to still pass as 'exempt'. Let's look at the Miley Cyrus performances that have recently caused so much fuss, for instance. Would the video for Wrecking Ball need to be certified? Certainly not, because the nudity is suggestive, not graphic. Would her notorious performance with Robin Thicke really be considered to be more than 'mild sexual activity'? Again, surely not by any reasonable person.

So we are looking at rules that ban sexual words or acts and swearing unless they are 'mild'; they will ban imitative dangerous behaviour, smoking or drinking, but only if the material 'promotes' such activities (and we should note that the BBFC allow smoking and drinking in PG rated movies, so simply showing people engaged in those activities would not lead to an automatic non-exemption). And while current rules have a blanket ban on genitals and bodily functions, they would now be allowed to be exempt if for 'medical, scientific or educational purposes'. The ban on violence might be designed to catch cage fighting videos (something that has been complained about), but would it really? I suspect boxing would remain 'exempt', so those distributors could certainly claim a similar exemption if they chose to. And then who gets to decide which sporting activity is 'legitimate' and which isn't?

Reading between the lines, it seems that the new law will only have a blanket ban on the same material that is already banned from being 'exempt'. Everything else will be down to interpretation. After all, what is 'mild sexual activity'? Kissing? Fondling? What is 'mild swearing'? Some people are offended by 'shit', but that's still allowed at PG. Is 'fuck' considered that extreme any more? Are we really going to expect a band self-releasing a DVD to go through the BBFC when the record containing those same words is freely available to anyone? What's wrong with a 'parental advisory' notice on a music DVD, just as we have on the CD?

And as the ban on nudity relates only to genitalia, presumably anyone can release a DVD full of topless women without BBFC approval – good news for anyone looking to distribute 1960s nudist films (and would a fully nude woman with her legs clamped together be considered to be displaying 'genitalia'?). It would seem that this new revision is essentially not so much much tightening up the current rules on exemption as muddying the waters considerably.

Given that many distributors routinely submit everything to the BBFC – including music concerts that are then rated U or PG – while others push exemption to the limit, I'm not sure what difference this will make, other than to give professional moaners a wider range of material to complain about.

Of course, in keeping with a world where people seem to believe they have the right never to be offended by anything, the really worrying aspect of this new rule is in point (o): it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or BELIEF or sexual orientation, or OTHERWISE. (my emphasis).

Now, as anyone who has used Twitter can tell you, there are plenty of people out there looking to be offended by the slightest thing – someone disagreeing with them or putting a contrary viewpoint, or someone behaving in a way they disapprove of - this final clause seems rather too vague. Surely we should be able to mock beliefs or whatever might fall under 'otherwise' without the expensive permission of the BBFC? And who will sit in judgement on material considered to be 'offensive'? The BBFC? The courts? Will Christians be able to claim that non-sexual gay documentaries are offensive to their beliefs? Will athiests be able to complain about creationist videos? Will racists be able to complain about videos showing mixed-race marriages? Where do we draw the line?

Given that currently, the only punishment for material falsely released as 'exempt' is to have to submit it to the BBFC if someone notices and is offended, holding their hands up and saying 'sorry', it's hard to see what difference these new rules will actually make, the potential for mischief over clause (o) aside. The choice of whether or not a work is 'exempt' remains with the distributor's own personal interpretation, and so we will still see material submitted that doesn't need to be, and released as 'exempt' when it shouldn't be. I doubt this new rule will please those people who think exemption should be scrapped entirely, and so the only effect will be slightly bigger headaches for distributors and censors, and a further extension of an already unnecessary and outdated law.