Freedom of Expression – Obscene, Indecent or Racially or Religiously Offensive Material

Freedom of Expression

Under English Law there is a right to freedom of expression meaning that the press, written media and all people within the UK are able to express themselves freely. There are however, some restrictions to this general rule.

Restrictions

The restrictions imposed on freedom of expression are concerned with the following areas:

  • Obscene material
  • Indecent material
  • Behaviour on the grounds of race
  • Behaviour on the grounds of religion

The restrictions in these three areas are governed by the Obscene Publications Act 1959, the Obscene Publications Act 1964, the Indecent Displays (Controls) Act 1981, the Public Order Act 1986 and the Racial and Religious Hatred Act 2006.  

Obscene Material

What is meant by Obscenity?

Section 1 of the Obscene Publications Act 1959 sets out the test for obscenity and states that an article will be deemed obscene if its effect or effects, in the case where the article is made up of two separate elements, if taken as a whole, tend to deprave and corrupt persons who are likely, when all the circumstances are considered, to read, see or hear the matter contained or embodied in it.

The key elements are as such:

  • There must be an article
  • Which is taken as a whole
  • The effect of the article would tend to deprave or corrupt
  • Those people who are likely to see or hear the article

What is meant by Article?

The definition of article is a wide one and specifically includes anything that a person can read or look at or both. Any sound recording, any film or any other kind of record of a picture or pictures.

Examples of articles:

The following are examples of what will be deemed an article under the legislation:

  • Books
  • Magazines
  • Video recordings
  • Audio recordings
  • Pictures
  • Negatives or information kept in electronic form

Is anything exempt under the legislation?

Both television and radio transmissions are exempt under the legislation.

Taken as a whole

What is meant by taken as a whole?

Taken as a whole means just that and relates to the whole of an article. If we look at a book for example the whole of the book will have to be examined in order to decide whether its content would be construed as obscene. There are some cases where articles are made up of distinct elements, for example a magazine or a newspaper. In the case of these articles the separate and distinct elements would be examined and the magazine for example may be found to be obscene simply on the strength of one or more article being considered obscene.

Deprave and Corrupt

What is meant by Deprave and Corrupt?

The word deprave is defined as deviating from what is considered moral or right or proper or good.

The word corrupt is defined as being changed from a sound condition to an unsound one, spoiled, contaminated, rotten, deteriorated from the normal or standard.

For the court will need to prove that the effect of the matter would tend to deprave and corrupt. In order for the court to prove this they will need to examine how it would effect the mind or emotions of the person who was likely to see, hear etc the article. There is no need to prove that the article has resulted in any act committed it is simply if the court views the effect is likely to deprave and corrupt the individual who is likely to come into contact with the article. 

Examples of this could include images of extreme sexual activity such as bestiality, necrophilia, rape or torture.

Who is likely to come into contact with the article?

In a case of obscene publication a significant examination of the likely audience will have to be undertaken – this can be readers of a magazine, newspaper, book or likely viewers of a television program or film for example.

Once this is established the court will further need to establish whether the effect of the material is likely to deprave or corrupt a significant proportion of the audience.

Publication

Publication is taken to mean the distribution of an article, the circulation, selling, hire, giving or lending of an article.

Do these laws apply to the Internet?

The laws under the Obscene Publications Act apply to all kinds of new media and therefore cover obscene images published on the internet.

Indecent Material

What is Indecent Material?

Indecent material is regulated by the Indecent Displays (Controls) Act 1981

What is the offence under the Act?

Under the Indecent Displays (Controls Act) 1981 if a person displays or causes or permits a display of any indecent material.

Display

For the material to be displayed it must be visible from a public place which is in turn defined as any place that the public have or are permitted to have access. Areas such as art galleries where the public have to pay to see the display or in a shop where they have to pass through a certain area which is clearly signed will not be included in the definition of public place.

How is the Law concerning Indecent Material Affected by the Internet?

In recent years there has been much change regarding indecent material concerning children following the increase of internet child pornography cases.  The Protection of Children Act 1978 has been amended by the Sexual Offences Act 2003 to create an offence of making and distributing indecent photographs of a child.  

When looking at cases under this Act criminal sentences will be imposed when taking the following considerations or aggravating factors in account:

  • The age and number of children involved
  • Whether the children were of one or both sexes
  • The nature of the conduct which they were subjected to or depicted taking part in
  • The quality, quantity and nature of the material
  • Any element of exploitation for commercial gain
  • Whether the offence was simply one of making (downloading and saving) or also involved distribution and if so to what extent – this means whether it was to a single recipient or a variety of recipients
  • The character of the offender and the effect of conviction on the individual

Racially Offensive Material

Racially offensive material was established by the Public Order Act 1986 and has subsequently been amended by the Racial and Religious Hatred Act 2006.

Racial Hatred

The Public Order Act 1986 Act defines racial hatred as hatred against a group of citizens in Great Britain defined by reference to colour, race, nationality, or ethnic or national origins.

Offence of Inciting Racial Hatred  

Under the Public Order Act 1986 there are three separate offences of inciting racial hatred. There are as follows: 

  • The use of threatening, abusive or insulting language or the display of written material that is abusive or insulting
  • The publishing of or distribution of abusive or insulting written material or the performance of plays, distribution of or presentation of visual images or sounds or the production of a programme which contains abusive or insulting written material
  • The possession of written material or recordings of images or sounds that are threatening abusive or insulting. In this case the possession needs to be with a view to either displaying or publishing them.  

Religious Hatred

Religious hatred is defined as hatred against a group of persons defined by reference to religious belief or lack of religious belief.

Inciting Religious Hatred

The Racial and Religious Hatred Act 2006 has amended the Public Order Act 1986 to include religious hatred in the above offences as well as racial hatred.