Does The Law Relating To Obscenity Restict Freedom Of Speech?

The right to freedom of expression is a fundamental right, which has not traditionally been prescribed by law, but can be considered more of a moral right.

However the enactment of the Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law, Article 10 of which creates a right to freedom of expression. Article 10 (1) states "Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." However this right to free speech is qualified and not absolute as Section 10 (2) imposes a number of restrictions upon its exercise; "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the reputation or rights of others."

Two of these "restrictions prescribed by law" are the criminal offences of Obscenity and Blasphemy, which abridge freedom of expression in order to protect individuals and in some cases the public in general, against harm to moral integrity and uphold standards pf public behaviour as well as protecting religious sensibilities. The extent to which they constitute a restriction on freedom of expression, however, is a contentious issue and will be considered in due course.

The law on obscenity is aimed at protecting those who come to it willingly, against moral harm, which the obscene article is said to threaten. It guards moral integrity or protects some public interest in maintaining moral standards in a way, which overrides personal freedoms. Consequently any expression that contravenes accepted standards of social morality is potentially subject to restrictions.

Such restriction on peoples expression is justified by the Ð''harm' principle as developed by John Stuart Mills whereby expressive material may only be restricted/interfered with if can be shown to cause harm to others. However there are divergent views on what constitutes Ð''harm.' Some attribute the narrower definition, limiting it to physical or psychological harm that is scientifically evaluable. Others, instead of concentrating upon material harm are prepared to include moral and ideological harm within the definition, which is less easy to establish upon objective criteria since it is not always scientifically verifiable. Hart, similar to Mills also favoured reliance upon personal harm and whereas these views are more individualistic, Devlin, on the other hand, believed that society needs a common moral core to retain its stability and therefore any attacks on basic moral standards threaten and cause harm to society as a whole even if no individual suffered immediate and identifiable personal harm. This essentially requires the law to enforce a wider range of moral demands. However it is undesirable to indiscriminately criminalize all immoral conduct or expression, as the resulting interference with freedom of expression would be extensive especially due to the uncertain scope of morality within a diverse society.

It must be clarified that the protection of morals is not purely a philosophically or politically advanced notion, as under Article 10(2) of the ECHR, it is laid down as one of the justifications for interferences with freedom of expression. This also recognises that the steps necessary for the protection of morals will depend upon the morality to which the country is committed and thus the European Court of Human Rights will allow a Ð''margin of appreciation' to states in deciding what moral standards they should enforce and by what means.

One of the means adopted in Britain to enforce such morality is the Obscene Publications Act 1959, which makes it an offence to publish an obscene article. Under Section 1 (1) "An article shall be deemed obscene if its effect or the effect of one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely in all the circumstances to read, hear or see the matter." This offence is a welcome liberalization of the previous offence of obscene libel whereby in order for an article to be considered obscenely libelous it was sufficient that some part of the "matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall' as established in R Ð''v' Hickin (1868). Therefore not only was it possible to obtain a conviction by taking an isolated passage in a book out of its context and prove that it tended to deprave and corrupt, it was sufficient to prove that it would deprave and corrupt the most sexually naÐ"Їve person who may chance upon it. Thus the law was fairly wide and the tests laid down were easy to satisfy resulting in a great restriction upon freedom of expression. However, as Salmon LJ commented in R Ð''v' Calder & Boyers (1968) "the Act of 1959 was an Act to amend the law relating to the publication of obscene material" and it has certainly had a liberalizing effect in many respects.

Under the current law, the likely readership who may be depraved and corrupted is far more restricted as it is "any persons who are likely in all the circumstances" to see/read the allegedly obscene material. This initially received clarification in R Ð''v' Calder and Boyers (1968) where it was held that "clearly this cannot mean all persons, nor can it mean only one person for there are individuals who may be corrupted by almost anything. The court is of the opinion that the jury should be directed to consider whether the effect of the book was to deprave and corrupt significant proportion of the persons likely to read it."

The issue was also addressed in R Ð''v' Whyte (1972) where the question for the Magistrates was whether pornographic material, sold by the defendant, was likely to corrupt and deprave the Ð''likely readers,' who were it was decided middle aged men since these were the frequent customers. A Ð''significant proportion' of these Ð''likely readers' were the hardcore of these regular customers whose morals were already in a state of depravity and corruption. Therefore it was doubted that such minds "could be open to any immoral influence which the books were capable of exerting" so that the books would not have a tendency to deprave and corrupt. Although