The Obscene Publications Act 1959

The cornerstone of UK obscenity law is the Obscene Publications Act 1959 (OPA 1959). This act establishes the legal test for determining obscenity.

Tendency to Deprave and Corrupt – Material is deemed obscene if its effect, when considered as a whole, tends to deprave and corrupt those likely to be exposed to it.

This subjective test hinges on two key factors:

1. The Likely Audience: The law considers the potential impact on the audience most likely to encounter the material. This could be children, a specific religious group, or the general public.
2. The Overall Effect: The focus is on the material’s overall effect, not isolated elements. A balanced and objective assessment is crucial, considering the context and artistic merit, if applicable.

The OPA 1959 avoids explicitly defining obscenity, leaving room for interpretation based on prevailing societal standards. This approach allows for flexibility in a constantly evolving social landscape.

Beyond the OPA 1959: Additional Considerations

While the OPA 1959 forms the foundation, several other laws and considerations influence the definition of obscene materials in the UK.

• Indecent Displays (Control) Act 1981: This act prohibits the public display of indecent material, even if not strictly obscene under the OPA 1959. Here, “indecent” refers to material that is offensive to a reasonable person.

• Video Recordings Act 1984: This act establishes a classification system for video recordings, ensuring age-appropriate content is readily identifiable. Distributing unclassified videos or those exceeding the designated age restriction can be an offense.

• Theatres Act 1968: This act governs obscenity in live performances. Similar to the OPA 1959, a play can be deemed obscene if it has a tendency to corrupt or deprave. However, the Attorney General’s consent is required before prosecution under this act.

• Artistic Merit: Material with artistic merit, such as literature or films, receives greater leeway in obscenity assessments. The presence of a clear artistic purpose or social commentary can mitigate the potential for depravity.

The Evolving Landscape: The Digital Age and the Internet

The rise of the internet has presented new challenges in defining and regulating obscenity. The ease of access and the potential for widespread dissemination necessitate a nuanced approach.

• Classification and Filtering: The UK utilises a combination of industry self-regulation and government intervention to manage online content. Age-verification systems and content filtering tools are employed by some platforms to restrict access to potentially harmful material.
• Communication Act 2003: This act tackles offensive content online, empowering authorities to remove content deemed grossly offensive or likely to incite racial hatred.
• Social Responsibility of Platforms: Social media platforms and online content providers have a growing responsibility to moderate content and prevent the spread of obscene material.

The Enforcers: Who Decides What’s Obscene?

Ultimately, the courts hold the power to determine whether material is obscene. However, other actors play crucial roles in the process.

• The Crown Prosecution Service (CPS): The CPS decides whether to pursue prosecution for obscenity offenses based on the available evidence and the public interest.
• The British Board of Film Classification (BBFC): The BBFC classifies films and video content, providing guidance on age-appropriateness and potential obscenity.
• Law Enforcement Agencies: Police and other law enforcement agencies investigate reports of obscene material and gather evidence for potential prosecution.

The Balancing Act: Freedom of Expression vs. Public Morality

The regulation of obscenity in the UK navigates a delicate balance between protecting freedom of expression and upholding public morality.

• Freedom of Expression: The UK recognises freedom of expression as a fundamental right. This makes it vital for obscenity laws not to stifle legitimate artistic creativity or public discourse.
• Protection of Children: A key concern is safeguarding children from exposure to harmful material. Obscenity laws play a role in protecting them from content that could be psychologically damaging. 

A Continuously Evolving Landscape

Defining obscenity in UK law remains a complex and ongoing process. The subjective nature of the test and the ever-evolving social landscape necessitate a flexible approach. Here are some key takeaways.

• Public Interest: The ultimate goal is to balance freedom of expression with the protection of public morals, particularly those of children.
• Context Matters: The context in which material is presented plays a crucial role. Artistic merit, social commentary, and the intended audience are all considered during the assessment.
• Shifting Standards: Societal standards regarding obscenity evolve over time. The courts and relevant bodies constantly review interpretations to ensure the law remains relevant.

Case Studies: Landmark Decisions

Understanding how the courts have interpreted the OPA 1959 in past cases provides valuable insight into the practical application of obscenity law in the UK. Here are some key examples.

• Director of Public Prosecutions v. Hinds (1977): This case involved the publication of “Gay News,” a magazine with content deemed offensive by some. The court ruled that the magazine, despite containing homosexual content, did not have a tendency to deprave and corrupt and therefore was not obscene. This case established the importance of considering artistic merit and social commentary when assessing obscenity.

• Regina v. Hicklin (1868): This case, though pre-dating the OPA 1959, remains influential. The “Hicklin Test” proposed that material is obscene if it tends to deprave or corrupt those who are most susceptible to such influences. While not the sole test anymore, it highlights the focus on the potential impact on the audience.

• Sir James Anderton v. London Weekend Television Ltd (1971): This case involved a play broadcast on television that depicted a brothel scene. The court found the scene to be obscene due to its explicit nature and lack of artistic merit. This case demonstrates the importance of context in obscenity assessments.

• Regina v. Brown (1997): This case dealt with the distribution of a video containing sadomasochistic pornography. The court ruled that the video, while disturbing to some, did not necessarily deprave or corrupt viewers and therefore was not obscene. This case highlights the evolving societal standards regarding obscenity.

• R v. Lemonnier (1998): This case involved a website containing images of children engaged in sexual activity. The court found the website to be obscene due to the clear harm posed to children and the potential for exploitation. This case emphasises the importance of protecting children from harmful content.

These cases showcase how the courts weigh various factors when applying the OPA 1959. The “tendency to deprave and corrupt” test remains the foundation, but the audience, artistic merit, context, and evolving societal standards all play crucial roles in determining obscenity.

The Future of Obscenity Law in the UK

Several factors point towards the continued evolution of UK obscenity law.

• Technological Advancements: New technologies like virtual reality and artificial intelligence raise new questions about content regulation.

• Globalised Content: The internet facilitates the easy access to content from around the world, necessitating international co-operation in addressing obscenity.

• Evolving Morality: As societal norms and values shift, the definition of obscenity may need to adapt accordingly.

UK law regarding obscene materials provides a framework for ensuring content does not have a detrimental impact on society, particularly children. However, the subjective nature of the obscenity test and the ever-changing digital landscape necessitate a flexible and nuanced approach. By understanding the key considerations and navigating potential uncertainties, individuals and organisations can create and distribute content responsibly within the legal boundaries.