Page 245 - Law and the Media

Law and the Media
In DPP v Whyte (1972), the defendants argued that the target audience was middle-aged men
whose morals were already depraved and corrupted and that, as a result, the effect of the
material would be negligible and they could not have committed an offence. The argument
was accepted by the magistrates’ court but rejected by the House of Lords, who said that it
was wrong to consider the effect only upon the category of the most likely reader, in this case
people who were already corrupted. All categories of likely reader must be included. The
House of Lords also held that the Obscene Publications Act 1959 protects not only the
innocent likely reader but also those whose morals are already corrupted, because they may
still be capable of further corruption.

13.2.3 Contemporary standards must apply

In deciding whether an article tends to deprave or corrupt, the magistrates or jury must judge
an article by the standards of the day. The law recognizes that society’s views about what
constitutes obscenity changes with time, and that material which would have been judged as
unacceptable 20 years ago would not necessarily be so today.

13.2.4 Publication

Section 1(2) of the Obscene Publications Act 1959 states:

. . . any person who, whether for gain or not, publishes an obscene article or who
has an obscene article for publication for gain (whether gain to himself or gain to
another)

commits an offence.

‘Publishes’ means ‘distributes, circulates, sells, lets on hire, gives or lends’. It also
includes offering an article for sale or for letting on hire. Having an obscene publication
for gain is also an offence. A person ‘has’ an article if it is in his ownership, possession
or control.

13.2.5 Intention irrelevant

The offence is one of strict liability. The test for obscenity will be satisfied if the prosecution
establishes the fact of the publication and the effect of the published article. The intention of
the author or publisher is irrelevant.

However, the degree of knowledge possessed by those who publish obscene material is
relevant to establishing the statutory defence under Section 2(5) of the 1959 Act.
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