Current Obscenity Law in Great Britain.

The distinction between what is obscene and what is indecent plays an important part in the English system of moral censorship, with the threshold of obscenity being comparable to that in Scotland: that which has a tendency to deprave and corrupt. Indecency constitutes a lesser offence catching material which, because of its sexual nature, may be inappropriate for some circumstances or contexts but would not satisfy the higher test of obscenity. Obscene material is always illegal, whereas indecent material can legally be disseminated, subject to restrictions.

Obscenity is defined in section one of the 1959 Act as applying to material, the effect of which is “if taken as a whole, such as to tend to deprave and corrupt persons who are likely, in all the circumstances, to read, see or hear the matter contained or embodied in it.” The 1959 Act provides two routes to deal with such material: as well as prosecution under section two, forfeiture proceedings may be brought under section three. The forfeiture proceedings are conducted in front of local magistrates with no jury and, if the magistrate so orders, the material can be confiscated and destroyed. Recourse to this measure is infrequent and inconsistent and, in reality, cannot be said to provide an effective deterrent to distributors of illegal material.

Under the English approach to obscenity, material must be shown to corrupt and deprave but there is no accompanying requirement that the material need shock or disgust. This has allowed the offence to be extended to include treatment of drug-taking in which it is glorified or irresponsibly portrayed  as well as incitement of violence to children. It has not yet been settled whether obscenity in Scots law is restricted to sexual material, the position in many other jurisdictions, or takes the broader approach.

Defences of innocent dissemination and public good are clearly provided in the 1959 Act. Section 2 (5) excludes those who did not know ‘and had no reasonable cause to suspect’ that the material which they were disseminating was obscene. The other defence made explicit by the 1959 Act in section 4 (1) was that of the public good of the work overriding its otherwise obscene properties, with reference to it being justified “in the interests of science, literature, art or learning, or of other objects of general concern”, although these grounds can vary from medium to medium. Section 4 (2) states that the opinions of experts in the relevant field are admissible “to establish or to negative the said ground.”

Why regulate obscenity at all?

Almost all countries have some form of obscenity law, some regulation of sexually explicit material. This indicates that there is a strong body of feeling either that certain material should not be permitted by society, or that its availability should be restricted. The stance taken on obscenity law depends to a large extent on the interpretation of the harm principle. All sides to the debate, liberal and otherwise, would agree that people should have maximum freedom to do as they please as long as the rights of others, or of society generally, are not adversely affected. The disagreement is over when it can be said that these rights have been so affected.

A liberal might contend that one of the prices to be paid for a free democracy is that one may, from time to time, be exposed to some speech or other expression which one finds offensive, even deeply so. Eloquently espoused by John Stuart Mill, this argument goes that if the state removes controls on speech and allows a free market of ideas, that truthful, good ideas will prevail over bad or ill-founded ones. Because nobody is in a position to predict the direction of future development of the human race, nobody is a position to censor the expression of ideas. Mill could scarcely have imagined a free market of ideas on the scale of the internet, and this school of thought would have it that the law should allow completely free speech and expression of all kinds, except where this has a direct consequential effect on the rights of another. Thus to hold a demonstration for any political or other cause would be allowed, but to hold it in the front garden of a member of the public who had not consented to this would not.

The counter to this would be that there are some harms which may be slightly less obvious than the demonstration in the front garden, but which nonetheless necessitate legal intervention. There are several lines of argument to support this view.

Laws to counter these harms would have one or more of three basic objectives: to suppress such material, to restrict its circulation or to regulate its contents. These ends can be achieved through proactive or reactive measures, or a combination of both. What lies behind such widespread restrictions must be a commonly held feeling that some material is either not fit for the public domain or not fit for society at all. These beliefs were vigorously held at the end of the nineteenth century, and at that time, in Britain and elsewhere, there was a far lower level of tolerance for sexual expression and explicitness than there is today. The laws at this time, when, among other factors, the influence of the church was much stronger, assumed that pornography was inherently wrong, was the preserve of those not of sound mind and moral fibre, and that it was to be suppressed by society. An analogous approach underpins the censorship system in the Republic of Ireland, which extends not only over what is indecent or obscene, but also covers material which encourages abortion or miscarriage or focuses unduly on crime.

The fundamental presumption in any democratic society must be freedom of expression and this is certainly the case in the countries whose obscenity laws I considered, guaranteed either by domestic law or international agreement. One of the downfalls of the current system is the huge difficulty in attempting to reconcile the demands of a pluralist liberal democracy with an antiquated and paternalistic concept of the law. Excessive state control of expression would render impossible the ideal of a democratic society. This guarantee should not extend only to political speech, or for communication of great literary ideas, but to all speech; the presumption should always be for freedom of expression and only where clear reasons to restrict expression exist should it be qualified. This will show through in my ideas for a reformed law of obscenity, and is a fundamentally different approach from that adopted in case law in the U.S.A., where first amendment free speech does not extend to obscene material because it is not seen as communicating ideas. I would argue that it is not for the courts to decide what merits free expression and what does not, or where the doctrine applies and where it does not, for that is no freedom of expression at all.

This is not, however, an infallible presumption: freedom of expression is one of a catalogue of civil rights and may legitimately be restricted in so far as it impinges upon those other rights. There are a variety of reasons that people are opposed to pornography. One form of communitarian view would be that society has some list of core values which are offended by pornography, and, by undermining these core values, the bonds which hold society together are undermined. Another, less extreme point would be that the religious and moral sensibilities of members of society are offended by pornography and this is to be borne in mind when considering obscenity law.

It may be argued that presenting people with forms of behaviour which, if imitated, could be socially harmful, for example combining sex with violence, makes those watching more likely to carry out those actions. This, if proven, would certainly constitute a harm, and justify a ban on material which had this effect. Because of the nature of the topic however, studies have been ambivalent, contradictory and inconclusive, and there exists no concrete evidence either to prove or disprove such a claim. Some, including the Report of the Williams Committee, have argued that because of the seriousness of the consequences of such behaviour, which could include sexual attacks, it was right to exercise caution and ban the material anyway. This does not seem to constitute a concrete basis for a restriction on freedom of speech, nor a rational basis for legal intervention. By way of analogy, nobody can say with certainty that the glorification of gangster life has no effect upon crime figures and yet films are constantly released into high street cinemas which do precisely that.

A point advanced by many feminists is that women are portrayed in pornography as subordinate to men, creatures for the sexual gratification of males and with no other purpose. This, it has been argued by some feminists and others, is one of the factors that re-enforces the inferior position of women in society today. Women are, it is contended, paid less than men, are subject to sexual attacks and are generally not treated on an equal basis. Among factors cited for this social climate are the attitudes created and maintained by pornography. It is true that some pornography does portray women as subservient to men, but this is neither pre-requisite nor universally true.

Much of what lies behind the above arguments is sociological, subjective or based on moral opposition to pornography. While there is truth in what is said and there may be reasons to choose not to consume pornography, in my view they do not constitute valid reasons for the intervention of the law. Such an extreme measure should be reserved for more dispassionate arguments based on actual harms, as set out below.

Some limits to freedom of expression in the context of obscenity can be derived from the general law. Where production of material involves the infringement of the rights of the participants, it is the right and indeed duty of the law to intervene, not just to restrict the material, but to suppress it. This seems, in one form or another, to be a widely held trait of national obscenity laws in pursuit of the protection of minors. It is a well established principle of British and most other legal systems that there should be an age of sexual consent, and that sex below that age is wrong. It is clear that there exists a demand for material involving or depicting girls under the age of sixteen and, in light of the huge sums of money which stand to be made from the trade in pornography, both legally and otherwise, there will be a supply. The law must therefore step in against what is effectively, regardless of any purported consent, exploitation of children.

Even where the participants are all above the age of sexual consent, there may still be a role for the law. Under British law consent is not a defence to an assault charge: in effect there are some acts that simply cannot be consented to. Material that involves or depicts infliction of real and substantial injury upon the participants is the legitimate target of the law. It should be noted that the inclusion or depiction of an illegal act will not necessarily render the material illegal, as extrapolation of this would lead to absurd results. Only illegal acts where a substantial and real harm is caused to a person are to be suppressed. Delineation of whether certain injuries meet the test of substantial would be left to the courts, but it would certainly require more than trivial physical injury. It must also be noticed that these restrictions are not on the basis of taste and decency or moral opinion, they are objective applications of established legal principles. No sufficiently rational and convincing reasons exist to legislate against material that does not fall foul of these criteria, however abhorrent to some or most of the population. So, for example, material depicting bondage or torture which did not appear to be, and could not be shown to be, simulated, and in which it appeared serious injuries were inflicted, would be illegal in any circumstances. Material involving faeces would probably not merit suppression.

As well as these direct breaches of the rights of particular individuals, there must exist a general, societal right to choose to avoid sexually explicit material. It would, after all, be a warped concept of freedom that would forcibly expose people to such material against their will. People should, as far as possible, be allowed to go about their daily lives without being confronted with such material if this is their wish, and despite the gradual loosening of attitudes towards sex, there remains a significant proportion of the population for whom this is the case. Their objections may stem from taste, morals, religion or some other source, but they undoubtedly have rights that must be respected, whether this is framed as a right to privacy, or a right not to be affronted or offended, or in some other terms. Here, the tool of choice is not suppression but restriction. It is not contended that the very existence of this class of material is harmful to society, although there are many who would claim that it is, but that it should be restricted to those adults who desire and take steps to procure it. The steps which would be necessary to access this restricted material should be no more stringent than is necessary to remove the material from the lives of those who do not wish to see it, or are classed by the law as too young to see it.

The Reformed System

One of the main downfalls of the current obscenity law is that it is scattered over many statutes and cases and littered with uncertainty. In concurrence with the Report of the Williams Committee, therefore, I would recommend the abolition of all current obscenity and indecency laws, to be replaced by one all-encompassing statute; and the discontinuance of the use of the terms obscene and indecent, because they stem from a moral system of censorship which belongs in a bye-gone era and have caused problems of interpretation in their use in the current system. They would be replaced by three categories of material: universal, restricted and suppressed, analogous to the system in New Zealand . The deprave and corrupt test would also be scrapped in favour of the simpler, clearer and more objective system described below.

The first question which must be answered when deciding upon the format of a new system would be whether proactive or reactive controls will be imposed – whether material is censored before it is available to the public, by some body akin to the BBFC, or after release, via complaints brought before the courts or similar body. Prior restraints are seen as particularly cumbersome to the principle of free speech because of the possibility that some material will not come to light at all, whereas if punishment is imposed after the material has been released then, although this is probably not relevant to much of what comes within the bracket of pornography, any important ideas embodied in it will have been heard. The only medium for which a system of prior restraint can be justified is film. Almost all countries have some pre-classification of films. This is seen as necessary because the potential impact of the medium may render it more offensive or, depending upon the approach taken, more likely to deprave or corrupt the mind, and thus people need to be effectively informed about the content of a film before they or their children watch it. The system can be advisory, as in America, or compulsory, as is the case for the age brackets 15 and 18 in Britain. I would propose a similar system of film classification as the BBFC currently implements, with a few minor alterations. Local authorities should have no part in licensing films on obscenity or any other content-based ground. This should be the job of the BBFC in law as well as in practice. The age category 15 should also be made advisory. As has been said before the aim of law in this area should be to increase choice not to restrict it. Films may still be classified suitable only for those over 18 on the basis of violent or disturbing themes, but no longer on the basis of explicit sexual content. 18 is the age of majority and there are some themes that may not be suitable for those below this age, but sex is not one of them. That a sixteen year old person can legally have sex but cannot legally watch pornography is manifestly inconsistent. Films restricted for their sexually explicit nature should be given an R16 certificate, and 16 should be the age necessary for admittance to sex shops. The R16 and 18 films should carry mandatory age limits to maximise the realm of what can be included: if film censors knew that, accompanied by an adult, a child could go to the cinema and see a film in this category, they would surely be prone to greater stringency, and rightly so.

Next to be settled is the category of material that shall fall foul of the law. Because the harm in the suppressed category is on the participants, logically that which has no participants cannot be suppressed. So, there can be no suppression of the written word, as this is the perception of the author. Even if the writing was based on a real life situation in which harm was inflicted, the resulting material is the author’s perception. Even if acts, resulting in harms, are commissioned solely for the purpose of the literary work, the harm is not what is marketed and the material should not be suppressed. The acts will, of course, fall foul of the ordinary criminal law but that is not under consideration here. The same is true for works of art, cartoons and computer-generated images. That which can be suppressed would include film, photograph, live performances including theatre and, conceivably, sound recording.

Because any restrictions on freedom of speech must be ‘necessary in a democratic society’, material which is to be suppressed completely must be minimised. Material can, however, be subject to restricted circulation without the same danger to free speech. So, material that would deeply offend a person of reasonable sensibilities, because of its sexual nature or connotations, should not be distributed indiscriminately, but should be available only in restricted circumstances. The form that restrictions in circulation should take, however, cannot be applied evenly across all media. What might be acceptable in a television program broadcast at midnight may not be the same as what would be acceptable on a billboard poster in the town centre. As the Williams Committee noted, “the aim of treating all the media uniformly is misconceived.” The retention of the BBFC to classify films for cinema and video release means that to impose some kind of inflexible statutory guidelines would not be helpful, so decisions as to the level of restriction required for a particular film would remain with the BBFC. The current classification system would also remain unchanged, apart from the 15 classification becoming advisory.

Terrestrial television and un-encoded satellite television would not be allowed to broadcast any material in the restricted category before the watershed, which would remain at nine o’clock. After nine o’clock, any material which would fall into the restricted category would be required to be broadcast after its content and recommended audience had been made clear. In practice, the output of the main channels would be unchanged before the watershed, but more explicit material would be allowed after 9pm. This would give people the choice to avoid or to protect their children from material which they do not wish to see without unduly restricting the right to receive television broadcasts dealing with adult themes. The same provisions would apply to radio broadcasts, although in practice they may be of limited application. Encoded satellite broadcasts would have a much higher level of tolerance and would be under the same provisions as for films classified R16, allowing all material which was not in the suppressed category, again after sufficient warnings.

Theatres would remain under largely the same obligations as they are now, but would be dealt with by the new statute. The Williams Committee recommended that the difference in experience between live shows and recordings was such that different rules should apply, and sex could only be simulated in live shows. While most people would not find such shows to their taste, there does not seem to me to be a pressing need to ban them. So, as long as adequate warnings were displayed as to the content of the performance in such a way as that nobody could see any restricted material without consciously deciding to pass the warning, and no person under sixteen was permitted entry to shows containing real sex or sexual acts, all material which does not fall into the suppressed category would be permissible in live shows.

The last category would be the still picture, addressing two recent situations where the attempted application of the existing law ended in calamity – that of the book of photographs by Robert Mapplethorpe and the art exhibition at the centre of the R. v. Gibson and Sylviere case – as well as displays of still pictures and unclassified clips of film on the internet. Here, in principle, anything which is not suppressed can be depicted, but the reasonable person should have the option to avoid seeing material in the restricted category if they wish. So an art gallery would have to make clear that some of what was being exhibited may be offensive and describe the nature of the offence before people enter the exhibition. Again the fundamental premise is giving people the choice both to see what they wish, and to avoid seeing what they do not wish, to see.

Restricted material will be available for sale in licensed sex shops. R 16 videos would only be available from such shops. They will operate on the principle that restricted material may not be displayed to the public, will have to have warning signs at the entrance and will not admit those below the age of sixteen.

If law is to play any meaningful part in the regulation of material that may be offensive because of its sexual nature, a radical overhaul is required. The symptoms of a sick system have been evident for some time, from the bribery of Scotland Yard’s Obscene Publications Squad in the 1970s to the irrelevant disrepair of the current system. That obscenity law in Great Britain has survived for so long in its current form would seem to owe more to political factors or apathetic attitudes than rational legal arguments in its favour. I believe that the reforms outlined above would lead to a system where freedom of expression is maximised, while retaining some choice as to what people see or allow their children to see in terms of material of a sexual nature. Obviously what is outlined above is a general system and may prove difficult to word satisfactorily in a statute, but the emphasis should be on the balancing of competing human rights, not Puritanism. After all, what better backdrop for reform could there be than the rights-based legal environment in which all law must now be considered?

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