8.1 What are the legal risks involved in the media publishing material that may be deemed ‘obscene’?
Obscenity is a ground on which the laws of many countries restrict freedom of expression. This is done for public policy reasons, usually to protect certain vulnerable groups in society, such as children. Censorship of obscene matter is also justified on grounds of decency. If, therefore, a journalist publishes something that is deemed obscene, he or she runs the risk of being penalised through the criminal law.
8.2 What is obscene for the purposes of the law?
Obscenity is a very difficult concept to define. Typical legal definitions refer to “indecency”, “lewdness”, “something that is morally degrading or which appeals to prurient interest”, etc. Material that depicts or describes, in a patently offensive way, sexual conduct is usually treated as ‘obscene’, though the standards by which this is judged vary significantly from country to country.
It needs to be noted that, in modern times, the concept of ‘obscenity’ is not synonymous with sexual explicitness, as might have been the case in the days gone by. Many sexually explicit images or descriptions are now accepted as permissible within the public domain (although restrictions may be placed on access to such material by children).
8.3 What are the tests applied by the courts to judge whether something is obscene?
The courts adopt a number of tests, including the following:
· is the predominant theme or purpose of the material in question, when viewed as a whole, intended to appeal to the prurient interest of the audience that is likely to come into contact with it?
· does the material in question patently offensive to an average person of reasonable sensibilities through its depiction of sex or related matters?
In arriving at its decision, the court will have regard to contemporary standards of morality and decency. It will also take into account the overall impact of the material, not just a few isolated images or passages which may be explicit or even shocking.
8.4 Does the legal definition of obscenity depend on who accesses such material?
Only up to a point. A test used widely in bygone years did indeed place a lot of reliance on the projected audience. As the judge who propounded that test put it in 1868, the court must consider:
whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands such a publication might fall.
But that standard has been qualified in many respects over the years. Among other things, there is now a further requirement that, even within this target group, there should be a significant number of people who may be corrupted by the material in question. In one case, it was held that there is possibility that, sometimes an image or description may be so offensive or indecent that, far from corrupting a reader or a viewer, it may actually repel him, in which case the material in question cannot be classified as obscene.
8.5 Does the law provide for any exceptions to the rule on obscenity?
Yes. Where an item is alleged to be obscene, the court will ask whether the item has any literary, artistic or scientific merit which would make its circulation within society necessary. If so, the item will not be proscribed.
8.6 What are the international law standards on obscenity?
International law allows for freedom of expression to be restricted on grounds of decency and morality, which means that any material that exceeds the bounds of acceptable explicitness may be banned, having regard to cultural and other attitudes prevailing in particular societies. However, international courts have, by and large, tended to take a fairly liberal view of what is obscene. They have accepted that it is extremely difficult, if not impossible, to find a common standard that is applicable across countries. As the European Court of Human Rights noted in a famous case emanating from the United Kingdom:
[I]t is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject.
However, the lack of consensus on this subject does not mean that an international court will tolerate an unbalanced approach on the part of a national government so that even mildly offensive material is sought to be proscribed.
8.7 Is it unlawful to simply possess obscene material without any intention to distribute or sell it?
In many countries, mere possession of obscene material is not unlawful. Usually, possession has to be coupled with an intention to distribute, sell, let on hire or lend such material. Some laws also make it an offence to possess, own or control an obscene article “for publication for gain”.
8.8 What are the defences open to someone charged with publishing or distributing obscene material?
They can argue that the material in question was a serious work of art, literature, learning or science. This is known as the defence of “public good”. The burden of proving artistic, literary, scientific or other merit will fall on the defendant.
Secondly, they can argue that they were at best engaged in “innocent publication”, viz. that they did not know nor could have known that they would be liable for prosecution. This defence is usually very difficult to raise, except in a small number of cases such as where a wholesale distributor of books or other publications could not reasonably have known or suspected that one of the publications contained obscene matter.
8.9 What other aspects of the law should the media be aware of in relation to obscenity?
Under English common law (which applies in a number of former British colonies), it is an offence to “corrupt public morals” and to “outrage public decency”. Although these offences are seldom invoked, there have been a few prosecutions in recent years which should put the media on guard.
In 1990, for instance, an exhibition which included a sculpture with earrings made of freeze-dried human foetuses became the subject of considerable controversy after many members of the public had taken deep offence by the display. It led to the artist in question and the owner of the gallery being charged with, and convicted of, outraging public decency. Their defence of “public good”, i.e. artistic merit, failed because the law does not recognise such a defence to the charge of outraging public decency.
The media should also be aware of the risks involved in relation to depiction of children. Most countries have laws which make it an offence to publish or distribute indecent pictures or images of children, or to publish advertisements for products or services which promote such indecency. There are also laws which criminalise the production and distribution to children and young persons of books and magazines that portray indecency or extreme violence or cruelty.
In addition, broadcasters should note that where national laws prescribe a “watershed” before which certain programmes with adult content should not be telecast, any breach of such laws would invite legal action, usually resulting in the suspension or cancellation of their licence to broadcast.