One of the earliest pieces at university was a research document into The Obscene Publications Act 1959. I achieved 90% which isn’t bad by any stretch, yet that does mean there was still improvements to be made!
What follows is my original piece of submitted work for The Obscene Publications Act 1959, which I’m posting on my site for both my own reference as well as allowing others to cite if they so wish. Students, do remember to cite your sources!
The UK Government Legislation website (legislation.gov.uk 2011) states that this is, “An Act to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography.”
What this was designed for was to create a new law to specifically make the publication of obscene content a crime. The Act replaced an older law which gave a much greater clarity to what would be classed as obscene and to allow the UK Police to seize anything deemed obscene, with the issue of a valid warrant.
How the Act came to force
As you might imagine, as with any law or act when it is written up, there is (usually) a very valid reason to do so. In the case of the Obscene Publications Act 1959, it was because up until the passing of this law, obscene publications were determined by a significantly older law. Namely, the Obscene Publications Act 1857. The older act had a key flaw, namely that it did not explicitly state what is classed as obscene (Encyclopædia Britannica 2017). Instead, it was up to the court to judge the material by common law. According to Garner (2014), common law is defined as, “The body of law derived from judicial decisions, rather than from statutes or constitutions.” The problem here was that you would have to prove completely to a jury that the material was obscene, which because of the nature of the material was extremely problematic.
Problems with The Obscene Publications Act 1959
Like the act it replaced, the 1959 Act had several flaws which were famously brought to light by the courts almost ever since it came into force. The first of these was the case of the book Lady Chatterley’s Lover, cited by Feather (1988) as a key moment in the history of publishing. The publisher of the book (Penguin Books) argued and won their case based on Section 4 of the Act, namely that the book is in the “public good” and could not be labelled as obscene. Although the book contains explicit language and descriptive sex scenes, the jury agreed with the defence that the descriptions of sex were necessary and appropriate (Rolph, H. Robertson, P. Robertson, G. 1990).
Another was the Schoolkids Oz trial, something which was discussed in detail after the fact by the junior counsel for the defence Geoffrey Robertson in The Justice Game (Robertson, 1999). It was argued that the Oz magazine was guilty under the act for distributing obscene material. The magazine in question had been guest edited by teenagers and as such was guilty of perverting the minds of children with an aim to exploit them with the material. However, this was eventually overruled on appeal, mainly as the content was decided upon by the guest editors and was a form of self-expression.
What I would Add to the Law
The pros and cons of the Act are self-evident just by the examples above. Although the 1959 act solved a major issue with the older 1857 act by having a specific test to define what should be classed as obscene material (rather than being defined by common law), as the writing of Section 1 where it explains this is vague there are still significant loopholes. One of the more well-known issues was how the Act could not be used to legislate against pornography, mainly down to the blurred line between pornography and art, thus bringing it into the same protection as Lady Chatterley’s Lover in Section 4 of the act. Not to mention that if something is created essentially by minors (as was the case of the teenage editors of the Schoolkids Oz edition) there is very little protection for the minors in the law as it stands.
My personal views also don’t really apply to the Act itself in its original form and that is essentially a flaw of this. As a video production student, by the letter of this Act I could be brought to court under the act if I filmed obscene material and then distributed the content. It wouldn’t particularly matter if I was charging for this or even just giving the content privately, by the letter of the law I could be found to be guilty. There is little definition between something I might do in private (private rights) versus something you might do in public (public rights), just that the Act is there to prevent distribution of obscene material. Where things become interesting is the Act gives a general test to carry out on what is obscene, but that definition can easily vary from person to person.
Because of the vagueness of the Act, by itself it does little (if any) to protect minors from being exploited in any way and outside of my simple example above it doesn’t do anything to protect the public if they come across obscene material, be that a literal public obscene display or coming across recorded or printed material. Coupled with this there is nothing specifically in place for film or TV content. Both would be classed as distribution methods but with there being no guidelines of specifics for these medias to follow, they could effectively slip through being prosecuted even if the content was obscene. However, this isn’t the only means of distribution and with super-fast internet and now streaming access to content is easier than ever. With content potentially available from anywhere in the world, it is more and more likely that the content people are watching is not specifically regulated by UK law.
Admittedly, because of things like my above point, this is not how the Act reads today. There have been a great number of amendments and modifications to the Act. Firstly, there was additions made to the Act with legislation in 1964 for additional provisions. Not to mention that with the advent of more available technology and sources for material, completely new laws were written to solve the vast majority of the issues with the Act. According to the Crown Prosecution Service (2009) this includes; Criminal Law Act 1977, Protection of Children Act 1981, Indecent Displays (Control) Act 1981, Video Recordings Act 1984 and 2010, Cinemas Act 1985, Cable and Broadcasting Act 1984 and Broadcasting Act 1990.
In short, although the Act still exists in its general aim to prevent the publication of obscene content, what constitutes obscene material and how that material is distributed is now mostly governed by other laws.
What the Law means to a worker in the industry
As mentioned above, there are a lot of laws and bodies that determine what classes as obscene and how that can or cannot be distributed. Not only that but even more so than before there is easy access to a wide range of materials available online. As such, it is important to know and understand what the, “likely to deprave and corrupt” line means from an impartial view as a content creator and not that of an individual.
For TV, the content will never really reach the public domain thanks mainly due to Ofcom in the UK. Although they are backed up by laws such as the Communications Act 2003, it is Ofcom’s guidelines that have built up on (and crucially elaborated upon) what can and cannot be broadcast so for TV there are significant regulations and punishments in place to safeguard the public against obscene content. For film in the UK, this is generally handled by the British Board of Film Classification. They will rate a film suitable for viewing of an age based on its content, so the higher the rating (from U to R18) the higher the chance the film will contain obscene content.
Fundamentally, for someone in the industry, they need to be aware of what sort of shoot they are signing up to work on, keeping in mind that although they personally might not mind what they are filming it could be seen as obscene and depending on how that content is then distributed they could be liable by the Obscene Publications Act directly or be held accountable by the various additional laws and governing bodies now in place to protect the public.
Legislation.gov.uk (2011) Obscene Publications Act 1959 [online] Available at: http://www.legislation.gov.uk/ukpga/Eliz2/7-8/66/introduction [Accessed: 29th October 2017]
Encyclopædia Britannica (2017) Obscene Publications Act [online] Available at: http://academic.eb.com/levels/collegiate/article/Obscene-Publications-Act/56666 [Accessed: 29th October 2017]
Garner, B (ed) (2014) Black’s Law Dictionary. 10th ed. West Publishing Company College School Division pp. 334
Feather, J. (1988). A history of British publishing. London: Routledge. Pp.205
Rolph, H. Robertson, P. Robertson, G. (1990). The trial of Lady Chatterley: Regina v. Penguin Books Limited: The transcript of the trial. Penguin.
Robertson, G. (1999). The justice game. Vintage.
Crown Prosecution Service (2009) Obscene Publications [online] Available at: http://www.cps.gov.uk/legal/l_to_o/obscene_publications/#b02 [Accessed: 29th October 2017]