CENSORSHIP 1 OBSCENITY INDECENCY PORNOGRAPHY 1 SPECIFIC TOPICS

CENSORSHIP 1. OBSCENITY, INDECENCY & PORNOGRAPHY 1

SPECIFIC TOPICS • Obscenity & indecency • Hate speech - Race, religion & sexual orientation • Data Protection/FOI • Official Secrets/War correspondents 2

IS CENSORSHIP NECESSARY? • • • An eternal question Used for control? Protection of the vulnerable? e. g. children Is some material really harmful? What is ‘harm’? Divergence of opinion 3

BBC IN 1939 ‘It has been said that there are only 6 jokes in the world and I can assure you that we cannot broadcast 3 of them’ Head of BBC ‘Variety’ Advance censorship of material continued for many years – and probably still does e. g ‘Winter draws on’ was not allowed in the 1950 s 4

‘THE WINDOW CLEANER’ • ‘Pyjamas lying side by side, ladies nighties I have spied. I’ve often seen what goes inside, when I’m cleaning windows’ Extract from a popular song banned by the BBC in the 1930 s despite being sung nightly in a pantomime. 5

Obscene Publications legislation • Obscene Publications Acts 1959/1964 as amended by Broadcasting Act 1990 • ‘an article shall be deemed obscene if its effect or (where the article comprises 2 or more distinct items) the effect of any one of its items is, if taken as a whole, such as tend to deprave & corrupt persons who are likely, having regard to all relevant circumstances to read, see or hear the matter contained or embodied in it’ 6

What does this mean? • A subjective element here • Work should be taken as a whole BUT ONE section in a magazine or film can taint the whole • R v Anderson [1971] Oz Magazine case 7

DEPRAVE & CORRUPT • Definition? • …a ‘significant proportion’ of those likely to read, see or hear material • What is a ‘significant proportion’? • S 1 only requires jury to be satisfied there is a likelihood of vulnerable people seeing the material. Prosecution does not have to show that anyone actually saw it. 8

2 CASES to contrast • R v Calder & Boyars Ltd [1968] ‘Last Exit to Brooklyn’ case - could use ‘public good’ defence. • R v Perrin [2002]- obscene web page 9

DECIDING IF MATERIAL IS OBSCENE (1) • Consider the article as a whole and ask: • WHO is likely to see, read or hear the material? • Taking that audience into account – is the material likely to morally deprave or corrupt? • If ‘yes’ then what proportion OF THAT AUDIENCE. If more than a small proportion then……. 10

DECIDING IF MATERIAL IS OBSCENE (2) • …ASK whether material is SO repulsive that it is likely to discourage such behaviour ( aversion ‘defence’) • If ‘NO’ then material may be obscene 11

WHO IS CAUGHT BY THE ACT? • 2 main offences • Both mainly concerned with commercial activity • Note the requirements of publication and gain 12

3 DEFENCES TO CONSIDER • Public Good - depends on nature of the material • Innocent publication or dissemination • Aversion – not a ‘true’ defence but is used as such 13

IS THE LAW STILL RELEVANT? • Consider recent comments from legal practitioners • Look at R v Peacock [2011] – acquittal sold Gay ‘Niche’ films. All films portrayed legal acts. 14

EXTREME PORNOGRAPHY • It is an offence merely to possess extreme pornography as defined in s. 63 of the Criminal Justice and Immigration Act 2008 contrast with Obscene Publications • A controversial piece of legislation - does it achieve what it set out do? • See criticism of existence of legislation, it’s wording and it’s use. 15

CASES • R v Webster – Acquitted. Possession of ‘death fetish’ films. All produced using actors by company called ‘Drop dead Gorgeous’ • R v Oliver – Prison Governor convicted. Possession of material but also installed ‘team viewer’ software. 16

European Court of Human Rights View • Tend to give a wide margin for each state to control material considered obscene/blasphemous • Court takes view that each member state understands what it’s citizens will accept or not • ‘Margin of Appreciation’ 17