The very idea of protecting public health and morals invokes the gloomy spectre of the morally paternalistic state; the judge unfamiliar with, and horrified by, ‘cunnilinctus’ [sic], the trial of Lady Chatterley’s Lover, the prosecution of the artist Richard Norman Gibson for his freeze-dried foetus earrings. The concept of ‘public health or morals’ is itself chimerical, controversial and deeply subjective. It requires the writer to engage with the indefinable, to understand what it means to shock, revolt, outrage, disgust, repulse, corrupt or deprave. It should come as no surprise that this murky territory is policed by a legal framework that is often inconsistent and unpredictable.

Under English law there are four tools that the state can use to restrict expression in the name of protecting public health or morals:

1. The Obscene Publications Act 1959 (“OPA”);
2. The offence of conspiracy to corrupt public morals;
3. Indecency offences;
4. The offence of outraging public decency.

THE OBSCENE PUBLICATIONS ACT 1959

The law in this area is overtly paternalistic; it seeks to prevent the moral degradation of the individual mind. The criminal act is the publication for gain, or possessing with a view to such publication, an article which tends, taken as a whole, to deprave and corrupt a significant proportion of those likely to see or hear it. The crime is ‘strict liability’, which means that there is no need to show an intention to deprave and corrupt, just an intention to publish.

The OPA is used largely in relation to books, magazines, and other printed material, material posted on the internet, or DVDs. The OPA does not cover stage performances (These are covered by the similarly worded Theatres Act 1968).but it does cover broadcasting, cinemas and the internet. ‘Publish’ in this context means either the showing, playing or projecting of the material in question, or the electronic transmission of that data. An article is published in the UK when it is accessed here, regardless of whether the web server itself is in the UK.

The vast majority of actions under the OPA take the form of forfeiture proceedings. This means that the material in question can be seized by the police if it is suspected that it is obscene and has been kept for gain. If a magistrate is satisfied that the material is obscene, it can be forfeited and destroyed. A person does not get a criminal conviction from forfeiture proceedings and no other punishment is imposed. If a person is tried on indictment under the OPA (meaning trial by jury in a Crown Court), the maximum penalty they can receive is a period of imprisonment of three years.

What does it mean ‘to deprave and corrupt’? There is no black-letter definition but some guiding principles can be gleaned from the cases. Importantly, shock and repulsion is not enough – obscenity must relate to moral harm. What ‘moral harm’ means is far from clear. In a trial this question is left to the jury, who are asked by the judge to apply ‘contemporary moral standards’.

Obscenity is not confined to sexually explicit material. It can apply to brutal violence, such as that represented in Last Exit to Brooklyn, or to the advocating of dangerous drug use, such as in Attention Coke Lovers. Cannabis use, however, is not depraved or corrupt as the publishers of Cooking with Cannabis and How to Grow Marijuana Indoors under Lights were acquitted. Similarly the halcyon descriptions of opium taking in The Count of Monte Cristo or of the productive use of cocaine in Sherlock Holmes have not attracted prosecution.

The trial of Inside Linda Lovelace established the principle that a prosecution brought against a book of any conceivable literary merit would be unlikely to succeed. Subsequently, the Marquis de Sade’s Juliette was not the subject of a prosecution and nor was American Psycho. This principle is enshrined in the OPA; it is a defence to a finding that a publication is obscene if it can be shown that “the publication of the article in question is justified as for the public good in that it is in the interests of science, literature, art, learning or of other objectives of general concern”. This defence was successfully invoked by the publishers of the underground comics Oz and Nasty Tales in their trial in 1971.

The material must corrupt or deprave a ‘significant proportion’ of its audience. This means a part that is not numerically negligible but that might be much less than half. In some cases the courts have found that material likely to reach a mass audience is obscene even though it would not be if it was confined to a self-selecting minority; it was for this reason that the prosecutor in the Lady Chatterley’s Lover trial emphasised that the book was available in paperback.

Writers publishing online should proceed on the basis that, without the use of ‘Age Check’ technology, the courts will assume that material on the internet can be easily accessed by a mass audience, including children. It is important to remember that there is no need to show that any such person has actually seen the material or that they would have seen it in the future.

In reality this Act is not used to prosecute very frequently; the number of prosecutions fell from 309 in 1994 to 39 in 2003. The last prosecution of written material was in 2008, when Darryn Walker published a fantasy tale of violence and sexual violence entitled Girls (Scream) Aloud, on the internet.

CONSPIRACY TO CORRUPT PUBLIC MORALS

The conspiracy to corrupt public morals is a common law offence, meaning that it is not contained in a statute and has been developed by judges over time. This offence is aimed at the same mischief as the Obscene Publications Act 1959 but is even more broad and imprecise.

The criminal act is an agreement to carry out an action that is likely to lead people morally astray. The act does not actually need to occur, so no actual publication is necessary. However, for this offence the prosecution must prove that the accused intended to corrupt public morals, or realised that it was virtually certain that such corruption would occur. Once again the question of what public morality actually is, is left to the jury. It is therefore impossible to know whether a given act corrupts public morals until a jury have pronounced upon it.

INDECENCY

Indecency offences are also products of the common law. The test for indecency is the provocation of outrage or utter disgust in ‘ordinary decent-minded people’. Once again, this is little more than a string of subjective, value-laden terms that offer little or no concrete guidance to the writer. However, indecency offences are not really aimed at the written word; the most recent high-profile indecency prosecution was that of the artist Richard Norman Gibson for his display of freeze-dried human foetus earrings. There was an attempted prosecution of the publishers of Alan Ginsberg’s poem America for using the word ‘fuck’, but it failed because the court found that it was the genuine work of a recognised poet without any intention of causing offence.

Theatres are immune from prosecution for indecency offences and no criminal prosecution can be brought against a theatre without the consent of the Attorney General. The theatre has not been censored since 1968.

OUTRAGING PUBLIC DECENCY

This final common law offence requires the writer or artist to cause outrage to public decency. The accused does not need to have intended to cause such outrage, but simply to have been aware of the content of the publication and the fact that it would be publicly available. The meanings of ‘outrage’ and ‘public decency’ remain predictably elusive and are left for the jury to pronounce upon.

HUMAN RIGHTS, PUBLIC HEALTH AND MORALS

It is a sad truth that artistic expression receives much less protection from the European Court of Human Rights than political or commercial expression. The European Court has avoided any kind of meaningful engagement with the eccentricities and complexities of UK obscenity and indecency law. The Court has demurred from criticising states for their approaches to censorship and prosecution on the grounds of public health and morals, with the effect that this area of law remains rife with inconsistency, anachronism and uncertainty.

Next week: The protection of the reputation or the rights of others

Last Reviewed: May 2012

Lady Chatterley’s Lover, by D.H. Lawrence.  Photo by Robert Couse-Baker (Creative Commons)