Page 246 - Law and the Media

Obscenity, Indecency and Incitement to Racial Hatred
13.2.6 Defences

Although an article may be found to be obscene, the publisher will escape conviction if he
establishes one of the statutory defences under the Obscene Publications Act 1959. The
burden of proof is on the defendant.

Public good
Under Section 4 of the 1959 Act, a publisher shall not be convicted if the article is justified
as being for the public good on the grounds that it is in the interests of science, literature, art
or learning, or another object of general concern. Another object can include justifying the
article on ‘ethical’ merits.
If the article is a film or film soundtrack, Section 4 provides that there will be no conviction
if the publication is justified as being for the public good in the interests of drama, opera,
ballet or any other art or literature or learning.
It is always for the magistrates or jury to decide whether an obscene article is justified as
being for the public good. However, Section 4 allows the prosecution and the defendant to
call evidence as to the literary, artistic, scientific or other merits of an article.
Knowledge
Under Section 2(5) of the Obscene Publications Act 1959, a person shall not be convicted if
he proves he had not examined the article and had no reasonable cause to suspect that the
article was obscene.

Penalties
The publisher can be liable to either a fine or up to three years’ imprisonment. However,
imprisonment is generally reserved for the commercial exploitation of pornography.

Under Section 3 of the 1959 Act a court may issue a warrant for the police to enter a
premises, stall or vehicle to seize offending material if there are reasonable grounds to
suspect that obscene articles are kept there for publication for gain. Where offending articles
are seized, the occupier of the premises may be summoned to court to show cause why they
should not be forfeited. The owner, author, maker or another person through whose hands the
material had passed before being seized may attend court to oppose a forfeiture order.

13.3 Indecent displays
Under the Indecent Displays (Controls) Act 1981, it is an offence for a person to display or
cause or permit to display any indecent matter. ‘Indecent matter’ is not defined in the Act.
A matter is displayed if ‘it is visible from a public place’. Public place means any place to
which the public have or are permitted to have access, except:

A place where the public have to pay in order to see the display, or
A shop or any part of a shop to which the public can only gain access by passing
beyond the following warning notice:
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