The Ombudsman has issued recommendations on the composition and functions on the new film classification board which will replace the Board of Fil and State Censors.

The recommendations were made as the Ombudsman, Chief Justice Emeritus Joseph Said Pullicino, considered a complaint by KRS film importers against the chairman of the current board. KRS complained that in 2010, 28%  of the films released locally  were given a higher rating that in the UK. 

Judge Said Pullicino noted that the proposed legislation will abolish the Film and Stage Classification Board and create a separate Board of Film Age-Classification, with similar functions to those possessed by the existing Board. In terms of the proposed regulations, the Film Board will consist of a chairperson and a number of members (not being less than 3 and not more than 7) who are appointed by the Minister for Tourism, Culture and the Environment.

The regulations, just like the current ones, are silent on the expertise required of the persons to be appointed on the Film Board.

The Ombudsman said the  persons appointed tot he film board should broadly represent the Maltese community.It  should include a mixture of men and women with as close to a gender balance as possible, incorporating persons of different ages so that there is a reasonable spread of age amongst the members. They should include persons that can assess equality issues and the concerns of vulnerable persons and persons with special needs.

At least one of the members should be well versed in issues affecting children and young people, either as parent or through his previous employment or other activities he is involved in. One could appoint this member following consultation with the Commissioner for Children.

Board members should be able to articulate their views, appreciate the opinions of others and be flexible enough to change their views following discussion with the other classifiers.

The Ombudsman noted that the proposed regulations, like those currently in force, mention that the classification of films is to be carried out in accordance with guidelines to be drawn up by the Film Board but the draft legislation is silent on whether these should be made available, not only to applicants but also to the general public.

On the other hand, in terms of the proposed amendments the Film Board may decide to discuss the film to be classified with the applicant prior to the certification of the film by the Board. 

The new rules also require the Film Board to issue, concurrently with the classification, notices to the public containing additional information as to the content of the films classified – a practice which is already in place in many countries and which is indispensable since it enables consumers to know which classifiable elements (e.g. coarse language, violence, drug use, nudity etc) have led to the classification decision.

The Ombudsman said the new legislation underscores a marked shift in policy from one exclusively based on censorship to one where the emphasis is on self-regulation, which necessarily presumes an adult audience, mature enough to assess the content of a theatre production or a film and to decide accordingly, whether or not to attend the performance. The proposed regulations effectively do away with censorship altogether for theatre productions but retain a measure of control over the showing of films through their pre-viewing by a board whose function is to classify their content according to the age of the audience. Through this classification, a measure of censorship can be enforced, primarily as a protection for children and vulnerable persons, as well as for the common good.

Even in the case of the showing of films, there has been a recognition that society has "matured" as a result of its exposure to the inevitable globalisation of mass-media and the technological advance in the means of communication, coupled with the realisation that the fundamental rights of freedom of expression and the right to impart and receive information can only be subjected to the most basic and essential limitations.

"Today, there is no longer a sense of duty of the State to impose in absolute terms its own standards of morality or conduct on adults. Rather than on censorship, the emphasis of the new regulations should therefore be to provide an objective assessment that will serve more as a guidance to help create an informed audience to make a choice, rather than an unwanted, imposed protection, forcibly limiting the adult's freedom to choose."

This shift of emphasis, the Ombudsman said, is in line with the approach being adopted in most European countries - an approach that might be welcomed by most, but contested by others. 

The Ombudsman said the film distributors and the public had the right to know what the guidelines drawn up by the Board will be. 

He stressed that loosening state control on censorship does not equate to decriminalisation.

Actions violating the new regulations could still be considered, in certain circumstances, an offence punishable at law. The Commissioner of Police still retained the ultimate right to order a suspension of any screening  and the closure of any cinema for a period not exceeding fifteen days "for reasons of public order or morality or for non-compliance with any of these Regulations".

Classifying a film or theatre production by age through a Board decision or self assessment, in no way exempted  the exhibitor or producer from liability, if the film or theatre production was unacceptable from a criminal law point of view and violated statutory laws on the vilification of religion, offences against decency or morals, contraventions affecting public order, obscene libel and others. 

Referring to standards reasonably accepted by adults, the Ombudsman insisted again that  the guidelines that the Board is bound to draw up and apply should be made public.

"It is suggested that the Administration and the Board co-operate in the formulation of the guidelines so that the new guidelines will reflect not only the accumulated experience of the members of the Board, but also the opinion of the public in general, research available and the legal expertise required in the drafting of the guidelines".

In the interests of transparency, accountability and fair decision-making and so as to ensure that the rights of distributors are not prejudiced, the obligation of the Board to provide a report motivating its decision should be mandatory.

He said the newly set up Board should be provided with the tools necessary to carry out its functions appropriately. Premises should possibly be provided for the Board to meet and to review the films which it is requested to classify. The Board should also be provided with an administrative support system and legal advice, where necessary. Discussions should be held with the Board and interested parties to establish whether it is necessary or advisable to have film viewing at facilities not under the control of the distributor. 

The full report can be seen by clicking on the pdf below.