1. OBSCENITY, INDECENCY & PORNOGRAPHY CENSORSHIP 1. OBSCENITY, INDECENCY & PORNOGRAPHY

SPECIFIC TOPICS Obscenity & indecency Hate speech - Race, religion & sexual orientation Data Protection/FOI Official Secrets/War correspondents

IS CENSORSHIP NECESSARY? An eternal question Used for control? Protection of the vulnerable? e.g. children Is some material really harmful? What is ‘harm’? Divergence of opinion

BBC IN 1939 ‘It has been said that there are only 6 jokes in the world and I can assure you that we cannot broadcast 3 of them’ Head of BBC ‘Variety’ Advance censorship of material continued for many years – and probably still does e.g ‘Winter draws on’ was not allowed in the 1950s

‘THE WINDOW CLEANER’ ‘Pyjamas lying side by side, ladies nighties I have spied. I’ve often seen what goes inside, when I’m cleaning windows’ Extract from a popular song banned by the BBC in the 1930s despite being sung nightly in a pantomime.

Obscene Publications legislation Obscene Publications Acts 1959/1964 as amended by Broadcasting Act 1990 ‘an article shall be deemed obscene if its effect or (where the article comprises 2 or more distinct items) the effect of any one of its items is, if taken as a whole, such as tend to deprave & corrupt persons who are likely, having regard to all relevant circumstances to read, see or hear the matter contained or embodied in it’

What does this mean? A subjective element here Work should be taken as a whole BUT ONE section in a magazine or film can taint the whole R v Anderson [1971] Oz Magazine case

DEPRAVE & CORRUPT Definition? …a ‘significant proportion’ of those likely to read, see or hear material What is a ‘significant proportion’? S1 only requires jury to be satisfied there is a likelihood of vulnerable people seeing the material. Prosecution does not have to show that anyone actually saw it.

2 CASES to contrast R v Calder & Boyars Ltd [1968] ‘Last Exit to Brooklyn’ case - could use ‘public good’ defence. R v Perrin [2002]- obscene web page

DECIDING IF MATERIAL IS OBSCENE (1) Consider the article as a whole and ask: WHO is likely to see, read or hear the material? Taking that audience into account – is the material likely to morally deprave or corrupt? If ‘yes’ then what proportion OF THAT AUDIENCE. If more than a small proportion then…….

DECIDING IF MATERIAL IS OBSCENE (2) …ASK whether material is SO repulsive that it is likely to discourage such behaviour ( aversion ‘defence’) If ‘NO’ then material may be obscene

WHO IS CAUGHT BY THE ACT? 2 main offences Both mainly concerned with commercial activity Note the requirements of publication and gain

3 DEFENCES TO CONSIDER Public Good - depends on nature of the material Innocent publication or dissemination Aversion – not a ‘true’ defence but is used as such

IS THE LAW STILL RELEVANT? Consider recent comments from legal practitioners Look at R v Peacock [2011] – acquittal - sold Gay ‘Niche’ films. All films portrayed legal acts.

EXTREME PORNOGRAPHY It is an offence merely to possess extreme pornography as defined in s.63 of the Criminal Justice and Immigration Act 2008 contrast with Obscene Publications A controversial piece of legislation - does it achieve what it set out do? See criticism of existence of legislation, it’s wording and it’s use.

CASES R v Webster – Acquitted. Possession of ‘death fetish’ films. All produced using actors by company called ‘Drop dead Gorgeous’ R v Oliver – Prison Governor convicted. Possession of material but also installed ‘team viewer’ software.

European Court of Human Rights View Tend to give a wide margin for each state to control material considered obscene/blasphemous Court takes view that each member state understands what it’s citizens will accept or not ‘Margin of Appreciation’