3B.4.5 Obscenity

Question 1

What are the two acts governing obscene publications?

Answer 1

• Obscene Publications Act 1959
• Obscene Publications Act 1964

Question 2

Obscene Publications Act 1959

Answer 2

s1(1) of the Obscene Publications Act 1959 sets out the legal test for obscenity. It describes an ‘obscene’ item as one that has the effect of tendering to deprave and corrupt persons likely to read, see or hear it.

This statutory definition is largely based on the common law test of obscenity, in the case of R v Hicklin.

Question 3

R v Hicklin

Answer 3

Obscenity means to deprave and corrupt those whose minds are open to such immoral influences

Question 4

Famous cases concerning obscene publications

Answer 4

Famous cases in the UK include the novels Lady Chatterley’s Lover by DH Lawrence and Last Exit to Brooklyn by Hubert Selby Jr.

The courts have defined ‘deprave’ as means to make morally bad, to debase, to pervert or to corrupt morally, and ‘corrupt’ as meaning to destroy moral purity, to pervert or ruin a good quality, and to debase or defile.

Question 5

What article does obscenity restrict?

Answer 5

Article 10 - the freedom of expression

Question 6

The scope of obscenity

Answer 6

Under s1(2) OPA 1959, obscenity applies to a wide range of media:
- ‘article’ means any description of article containing or embodying matter to be read or looked at or both, and sound record, and any film or other record of a picture or pictures.

Question 7

What does the Theatres Act 1968 and Broadcasting Act 1990 do in relation to obscene publications?

Answer 7

It applies a similar definition of obscenity to plays and performances (Theatres Act 1968) and live broadcasts under the (Broadcasting Act 1990).

Question 8

What is a possible lesser offence, rather than obscenity?

Answer 8

• Outraging public decency.

Public decency requires a level of behaviour which is generally accepted in public and is not obscene, disgusting or shocking for the observers.

Galleries (and their staff, officers or directors) may be committing a criminal offence if – for example – they sell, show or distribute work that is considered to be obscene or which causes public outrage.

Question 9

Defence to obscenity

Answer 9

Under s4 OPA 1959:
- A person shall not be convicted of an offence … if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.

Question 10

Obscene Publications Act 1964

Answer 10

The second statute on obscenity includes some limited provisions to further restrict the law on obscenity. In particular, these rightened the rules on making a gain from obscene materials.

Question 11

Outraging public decency

Answer 11

The common law contains certain measures to protect against obscene materials or those likely to cause moral outrage. According to Viscount Simonds in the case of Shaw v DPP, the common law offence of outraging public decency could be used in situations where there was no obvious statutory provision to protect the public welfare.

Case: Shaw v DPP and R v Gibson

Question 12

Shaw v DPP (1962)

Answer 12

The defendant had published a ‘ladies directory’ containing the contact details of prostitutes living in London. Conspiracy to corrupt public morals is a crime known to the law of England.

Question 13

R v Gibson (1990)

Answer 13

Using freeze-dried human foetuses as earrings for a work of art was held to constitute the offence of outraging public decency.