The main reason we then questioned this decision and took the case to appeal at the High Court was that we had very strong legal advice that the VAC had applied the wrong interpretation of ‘the harm test’ and in particular they had accepted an argument that the BBFC had to prove ‘devastating effect’ and we said this was wrong in law. So we needed to challenge their decision, not just because of the Manhunt 2 case, but because it would have been relevant to absolutely everything we do – games, films, DVDs, the lot. The VAC had also said that we had to show ‘actual harm’ and the judge corrected this and said that the correct test is to show ‘any hard which may be caused’ – so we are talking about the possibility of harm (rather than some kind of probability) and we are talking about ‘potential harm’ and not ‘actual harm’. He did also say that it had to be ‘real harm’ and not ‘fanciful harm’ so we have now got a very clear definition of the harm test which we are completely happy with.
So we won in the High Court and the judge said the VAC had applied the wrong harm test and that they must apply the correct one. So they did it again and it came out 4:3 again, so we lost. And at that point our lawyers were telling us we had no basis for challenging it any further.
So, we’re disappointed because we had spent ages examining Manhunt 2 and we felt that we had a greater familiarity with the game than the Video Appeals Committee.
I have to be very clear that we absolutely do not like anything that interferes with an adult’s ability to choose what films they see or what games and DVDs they buy. We only apply this power on the very rare occasions where we feel that the harm risk means that we have to do it.
So that was the saga! At the end of the day you have to do what you think is the right thing to do on the merits and you have to accept the decision that an independent judicial tribunal produces.
Some talk about it as a debacle or catastrophe for the BBFC, which is absolute rubbish. We often have cases that go to the VAC, as we occasionally reject DVDs as well – so maybe once every two or three years a case will go to the VAC. Sometimes we win and sometimes we lose, but that’s what it means to have an independent judicial appeals system. It doesn’t mean that every time you lose it’s a catastrophe!
TechRadar: A lot of the response from gamers was this feeling that games were not being treated by the BFBC in the same way as movies and DVDs.
David Cooke: Yes, the film/game comparison is very tricky, because you can fish out Hostel and SAW films and so on and say ‘are these worse than Manhunt 2?’
But you have to have a look at the total package and what we were saying was that there is a kind of focus on killing and on exploring the kills in Manhunt 2 that is of a totally different magnitude to those films I just mentioned. It offers almost infinite scope to explore the killing – so this is what we identified as the difference, this dominant focus on killing and on exploring the killing.
TechRadar: Do you think Rockstar milked the controversy a little for some extra positive PR for the game?
David Cooke: Well, people say these things of course. But when dealing with the actual people who make the games at Rockstar I’ve found them very reasonable to deal with, we have good relationships with them, they were very professional through the whole long saga of the appeal. I’m not sure myself that it is right that they were ‘milking the publicity’ but who knows?