Page 243 - Law and the Media

Law and the Media
The old common law offence was supplemented but not abolished by the introduction of the
Obscene Publications Acts in 1959 and 1964, which maintained the test of tending to deprave
and corrupt but otherwise went some way to liberalizing the law. These Acts were introduced
as a result of a number of prosecutions of serious literary works in the 1950s. It is still
possible for a prosecution to be brought under the common law, although any prosecution is
likely to be brought under the 1959 Act. An offence can be tried before the magistrates or a
judge and jury.

13.2.2 What is obscenity?

Obscenity is a question of fact, not opinion. The test of obscenity is set out in Section 1 of
the Obscene Publications Act 1959:

. . . an article shall be deemed to be obscene if its effect or (where the article
comprises two or more distinct items) the effect of any of its items is, if taken as
a whole, such as to tend to deprave and corrupt persons who are likely, having
regard to all the relevant circumstances, to read, see or hear the matter contained
or embodied in it.

The 1959 Act modifies the common law test set out in R v Hicklin. It changes the type of
person likely to be depraved from those into whose hands it ‘may fall’ to those to whom
the material is likely to be given or sold. For example, ‘adult’ material sold in a sex shop
will not be obscene under the 1959 Act just because its effect would be to ‘tend to
deprave’ a child, because in normal circumstances this sort of adult material will not be
sold to children. On the other hand, adult material published in a national newspaper that
is available and likely to be read by almost every section of the community, including
children, is likely to be obscene.

The law of obscenity cannot be used to prohibit what society considers to be ‘bad taste’. To
be obscene, the material must go beyond questions of lewdness. It must tend to be harmful
to those who are likely to read, see or hear it.

Obscenity is not limited to sexual matters. Depictions of brutality and violence aimed at
young people and drug abuse have been held to be capable of ‘depraving and
corrupting’. However, if material is so unpleasant or disgusting that it would actually
dissuade a person from indulging in the material activity, it will not ‘deprave and
corrupt’ and cannot be considered obscene. This was the case in R v Calder and Boyars
Ltd (1969).
206