Page 242 - Law and the Media

13 Obscenity, Indecency and
Incitement to Racial Hatred

David Green

13.1 Introduction

English law imposes restrictions on freedom of expression by regulating and prohibiting the
publication and distribution of material that is considered to be obscene, indecent or racially
offensive.

Any law based upon prevailing attitudes towards morality and aimed primarily at literature
and images may encounter controversy. It is perhaps difficult to reach any sort of consensus
about which words or images are so harmful to society that their production and distribution
should be punishable under the criminal law. Parliament has, however, devised tests of
obscenity, indecency and racial hatred and legislated against their publication in:

The Obscene Publications Acts of 1959 and 1964
The Indecent Displays (Controls) Act 1981
The Public Order Act 1986.

Despite the implementation of legislation, the extent to which material published in
newspaper articles or television programmes should be considered obscene, indecent or
racially offensive remains the subject of debate. Nowadays, the law is usually used to prevent
only the more disturbing or dangerous publications.

13.2 The Obscene Publications Acts

13.2.1 General principles

Until 1959, the offence of publishing obscene matter was dealt with under the common law
charge of obscene libel. The test applied in such cases was formulated in R v Hicklin
(1868):

. . . whether the tendency of the matter charged as obscene is to deprave and
corrupt those whose minds are open to such immoral influences and into whose
hands a publication of this sort may fall.