Obscenity Flashcards
Why is the topic of obscenity a difficult topic to provide balance?
What is obscene to one person may not be to another, particularly in our ever increasing liberal and persuassive society.
What is artice 10?
Freedom of expression
What type of right is article 10?
Qualified right
therefore can be deregated by the state for legitimate purpsoes proportionate to a democratic society
What happened in the case of Gibson?
D freeze-dried foetus earrings in an art gallery. D convicted of the common law offence of outraging public deceny and fined £500
What does the Obscene Publication Act 1959 do?
Makes it an offence to publish an obscene article or to have an obscene article for publication for gain
What does S.1 Obscene Publication Act 1959 do?
Provides the legal definition of “obscene”
“An article shall be deemed obscene, if taken as whole such as to tend to deprave and corrupt persons”
Why is the legal definition of “obscene” “deprave and corrupt”?
=Sets a higher legal threshold (to baqlance against Article 10 freedom of expression)
What happened in the case of Penguin books Ltd?
Case to decide whether the full uncensored edition of Lady Chatterley’s lover should be published in the UK, the book had been banned in France in 1928 and contained lots of swear words and explict descriptions of sex. The jury had found the book not guilty because ot was of literacy merit (the defnece of public good under S.4 OPA 1959)
What themes are capable of triggering obscenity laws?
Sex, violence, drug taking, tortue etc
What happened in the case of Powell?
A book advocating the taking of drugs described favourably effects of doing so. THe book was seened “obscene” as there was a real danger the reader may be temepted to experiement with drugs
What factors will influence a prosecution for obscenity?
-If the material encooruages criminality
-Degree and type of obscenity and form of presentation
-who is likely to see/ hear or read it
etc
What is the laws view on sharing material to people of the same mind set?
obscene
What happened in the case of Whyte?
D owned a hard core ponographic bookshop snd was prosecuted. Mags, accpeted that the customers had already be depraved and corrputed. HL allowed prosecutions appeal and remitted teh case back to the jsutices with the direction to convict. Lord Wilbefore “The act is not merely concered with the once for all corruption of the whlly inoccent, it equally protects the less innocent from further corruption, the addict from increasing his addiction”
What other legal point was confirmed in Whyte?
the effect of the mind is that is required
there is no need to prove that the obscene article led to any overt activity
What does the phrase in S.1 “IF taken as a whole” mean?
The entire context msut be regarded before being deemd obscene
=Breadth for Article 10
How is the tendency to “deprave and corrupt” judged?
Objectively
=without refernece to the intention of the author or publsiher= innocent motives will not jsutify an otherwise obscenen publication
=arguably limits article 10
What was confirmed in Shaw?
“Obscenity depends on the article not the author”
What does S.1’s reference to “article” mean?
wide definition
of anything “containing or embodying matter to be read or looked at or both, any sound record and any film”
What does S.1’s reference to “publish” mean?
“an article is published if it is distriubted, circulated or sold, let on hire, given lent, offered for sale, shown , played or transmitted electronically
How many people is requried to publish?
Only needs to be one other person
What was confirmed in Perrin?
The creation of a web page is sufficient to establish publication.
What was confirmed in Gavin Smith?
An explicit internet chat room conversation with one other person involving fantasies of sexual acts on very young children was sufficient for prosecution.
What does S.2 OPA 1959 do?
Makes it an triable wither way offence to publish an “obscene” article, it also criminalisies a person who has an obscene article for publication for gain
