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Obscenity
Obscenity is concerned with the harmful effect of the article on its reader or audience. The law governing obscene publications is to be found principally in the Obscene Publications Act 1959. Commercial dealings in obscene items, or possession of them for these purposes, are an offence. With or without a prosecution, the items can be seized under a magistrate’s warrant and, after a hearing to determine whether they contravene the statute, can be forfeited.
The test of obscenity - to ‘deprave or corrupt’
The Obscene Publications Act 1959 adopted as the core of its test of obscenity the famous phrase of Lord Chief Justice Cockburn in 1868: does the article have a tendency to deprave or corrupt the persons who are likely to read, see or hear it?
Courts have since interpreted deprave or corrupt as implying a powerful and corrosive effect. There must be more than an immoral suggestion or persuasion or depiction; it must constitute a serious menace.
The courts must have regard to the effect of the item taken as a whole. What matters is the likely audience, and a publisher is entitled to rely on circumstances of distribution which will restrict those into whose hands the article might fall. It is necessary to show that it would have the tendency to deprave or corrupt a significant proportion of the likely audience.
Defence of merit
The most important change introduced by the Obscene Publications Act 1959 was a new defence applying to magazines and books; that publication is in the interests of science, literature, art or learning, or of other matters of general concern. A similar but rather narrower defence applies to plays and films; that publication is in the interests of drama, opera, ballet or any other art, or of literature or learning. The use of this defence was demonstrated in the first major case under the Act when the publishers of D. H. Lawrence’s novel Lady Chatterley’s Lover were acquitted at the Old Bailey in 1960.
Drugs and violence
Obscenity cases do not necessarily involve sex. There have been occasional prosecutions and forfeitures of books that advocated the taking of prohibited drugs. In 1968, while allowing the appeal of the publishers of Last Exit to Brooklyn, the Court of Appeal said that the encouragement of brutal violence could come within the test of obscenity. In recent years, ‘video nasties’ have also been dealt with under the Act.
The test of obscenity - to ‘deprave or corrupt’
The Obscene Publications Act 1959 adopted as the core of its test of obscenity the famous phrase of Lord Chief Justice Cockburn in 1868: does the article have a tendency to deprave or corrupt the persons who are likely to read, see or hear it?
Courts have since interpreted deprave or corrupt as implying a powerful and corrosive effect. There must be more than an immoral suggestion or persuasion or depiction; it must constitute a serious menace.
The courts must have regard to the effect of the item taken as a whole. What matters is the likely audience, and a publisher is entitled to rely on circumstances of distribution which will restrict those into whose hands the article might fall. It is necessary to show that it would have the tendency to deprave or corrupt a significant proportion of the likely audience.
Defence of merit
The most important change introduced by the Obscene Publications Act 1959 was a new defence applying to magazines and books; that publication is in the interests of science, literature, art or learning, or of other matters of general concern. A similar but rather narrower defence applies to plays and films; that publication is in the interests of drama, opera, ballet or any other art, or of literature or learning. The use of this defence was demonstrated in the first major case under the Act when the publishers of D. H. Lawrence’s novel Lady Chatterley’s Lover were acquitted at the Old Bailey in 1960.
Drugs and violence
Obscenity cases do not necessarily involve sex. There have been occasional prosecutions and forfeitures of books that advocated the taking of prohibited drugs. In 1968, while allowing the appeal of the publishers of Last Exit to Brooklyn, the Court of Appeal said that the encouragement of brutal violence could come within the test of obscenity. In recent years, ‘video nasties’ have also been dealt with under the Act.
