Obscene articles – what is the law against publication?
Prosecuting those who publish obscene articles is not prudish, despite what certain commentators would argue. It is an offence under section 2 of the Obscene Publications Act 1959.
The maximum sentence of five years’ imprisonment for offences involving obscene articles may be warranted for activities which have disturbing and harmful knock-on effects.
Laws of this type remind us that free-speech and expression is subject to lawful limitations.
The relevant legislation
According to section 1 of the 1959 Act, one must decide whether the effect of the object in question is:
“…such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
An important line taken in the case law is that obscene articles must go beyond simply being rude or disgusting. The impact upon those who come into contact with and deal with the material is central to the question.
Defining the terms
In the case of Calder & Boyars Ltd from 1968, the court considered that the term ‘obscenity’ could encompass a wide range of misconduct.
The 1972 case of DPP v Whyte noted that while not everybody must be offended or influenced by the material the effect must be more than ‘minuscule’.
What does the term ‘article’ include? It can involve virtually anything capable of displaying some kind of information and/or broadcasting audio and video content. That description includes things which are not primarily made for these purposes.
The term ‘publish’ has been interpreted remarkably widely. For example, a single sale made by a developer of obscene photographs or creator of paedophilic writing to one customer can constitute publication. (Taylor [1995]; GS [2012]).
Additionally, the court decided in the case of Sheppard from 2010 that it was “fundamentally misconceived” to argue that ‘publication’ requires a ‘publishee’. It emphasised that this is a separate body of rules from libel law, so applying the same approach is wrong.
Expert evidence and obscene articles
While expert evidence is generally inadmissible in terms of what constitutes something obscene, it may be employed where the jury would otherwise not understand the effects of the obscenity upon a particular group (DPP v A & BC Chewing Gum Ltd [1968]).
What if you are investigated for this offence?
As you can see such offending is treated seriously by the courts so it will be important that you seek early advice from a criminal law solicitor. The law is also complex and will involve an exercise of expert judgement.
We assess the evidence on your behalf, advise you as to plea and can give you an indication of likely sentence if convicted. We will advise you as to whether any defences are available.
As a result, if you are arrested or know that the police wish to speak to you about an offence relating to obscene articles then make sure you insist on your right to free and independent legal advice.
The advantages of such early advice legal advice can be found here.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. Legal aid may well be available to fund your defence at court.
You can find your nearest office here.
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