Page 244 - Law and the Media

Obscenity, Indecency and Incitement to Racial Hatred
Article
‘Article’ means ‘any description of an article containing or embodying matter to be read or
looked at or both, any sound record, any film or other record of a picture or pictures’. This
wide definition includes anything that can be read, viewed or otherwise appreciated,
including books, magazines, audio and video recordings, pictures and new media. It also
includes negatives or information kept in electronic form (R v Fellows and Arnold (1997)).
However, television and radio transmissions are specifically exempted.

Taken as a whole
The court must consider the article as a whole. It is wrong to judge it by reference to isolated
extracts. The magistrates or jury will read a book from cover to cover in order to establish
its effect. However, where the material consists of a number of separate and independent
items, such as that found in newspapers and magazines, the court may convict if any single
item satisfies the test of obscenity, despite the fact that the rest of the publication is harmless.
In R v Anderson (1972) the magazine Oz was successfully prosecuted because the Court of
Appeal confirmed that although some parts of the magazine were unobjectionable, the
publication taken as a whole was tainted by those parts that were objectionable.

Deprave and corrupt
In order to convict for obscene publication, the court must be satisfied that the effect of the
matter would be to ‘tend to deprave and corrupt’. The prosecution is not required to prove
the specified effect by reference to any resulting sexual or other physical act by a reader or
viewer. It is enough to establish a tendency to deprave and corrupt by acting upon the mind
or emotions of the likely recipient.

The words ‘deprave and corrupt’ are plain English terms and have no technical meaning. The
prosecution of Lady Chatterley’s Lover, by D. H. Lawrence, was the first major case for the
Obscene Publications Act 1959, and produced the authoritative working definition of the key
words in Section 1 of the Act:

Deprave means to make morally bad, to pervert, to debase or corrupt morally.

Corrupt means to render morally unsound or rotten, to destroy the moral purity or
chastity, to pervert or ruin a good quality, to debase, to defile.
(R v Penguin Books Ltd (1960))

The test is stringent. It is not enough that the publication would simply shock or disgust, or
even that a reader or viewer would be led morally astray.

Persons who are likely to read, see or hear
The court must identify the likely readers or audience of the material. Once the court has
done do, it must be satisfied that the effect of the material was to deprave and corrupt ‘a
significant proportion’ of those readers or viewers (see R v Calder and Boyars Ltd (1969)).
In other words, the effect does not have to be upon all the likely readers, nor upon the average
reader, nor even upon the majority of readers.
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