Guide to UK Obscenity Laws

The obscenity laws in the UK are not limited to a single piece of legislation, nor indeed any one criminal offence. Following the introduction of the Obscene Publications Act 1959 — the first statute to criminalise the publication of obscene material — there are now a number of obscenity-related offences under several different pieces of UK legislation.

While some of these offences have largely fallen by the wayside, as the moral boundaries relating to obscene content in contemporary society have become more relaxed, additional new offences have been introduced. These legislative changes not only reflect a greater focus on the protection of children from abuse and exploitation, but also the increasing availability of online content, where obscene material can be more freely distributed.

The following guide on obscenity laws in the UK examines the existing legislative framework surrounding obscenity-related offences, including what constitutes an obscene publication and what the current statutory provisions mean in the context of our digital era.

 

What is the Obscene Publications Act?

 

Under the Obscene Publications Act (OPA) 1959 it is a criminal offence to publish an obscene article, whether or not for gain. Following amendments introduced by the OPA 1964, the prohibition against publishing obscene material also extends to a person who possesses an obscene article for publication for gain, whether this is to profit himself/herself or someone else. In this way, the law criminalises the behaviour of both the publisher and retailer.

An ‘article’ is defined as: “any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures”. In practice, this has been given a very wide meaning, encompassing video cassettes and computer discs.

Equally, the statutory definition of when a person ‘publishes’ an article is widely construed. This refers to where a person distributes, circulates, sells, hires, gives, lends, and offers obscene material for sale or for hire. It also includes where someone shows, plays or projects an article, or transmits any material where the data is stored electronically.

In respect of electronic material, publication occurs both when images are uploaded and downloaded. This means that obscene material uploaded on an overseas website could fall within the jurisdiction of England and Wales if, and when, they are downloaded in the UK.

 

What other obscenity laws exist in the UK?

 

Prior to the OPA 1959, the publication of obscene matter was classed as a common law misdemeanour. The preceding statute, the OPA 1857, only previously allowed for any offending material to be seized by the police and destroyed, without the creation of any statutory offence. One of the primary aims of the revised statutory provisions was to amend and strengthen the law in respect of the publication of obscene matter, while continuing to provide the police with powers to search and seize such material.

Since the 1950s and 60s, the law of obscenity has undergone even further transformation, with a noticeable shift away from broad offences focusing on obscene content, to specific legislative provisions that target a narrower range of content. From the supply of unclassified videos during the 1980s to the production and possession of extreme pornography during the last couple of decades, there has also been a more recent shift from the publisher and retailer of obscene content to the actual viewer. In this way, obscenity laws have widened the number of people that can be prosecuted to include mere recipients of obscene material.

The net effect is that prosecutions under the OPA 1959 are no longer as common as they once were, where the Crown Prosecution Service (CPS) will often first consider a range of alternative offences when dealing with obscene publications. These offences include:

a) Taking, making, distributing or publishing, or possessing with a view to distributing, indecent or pseudo-images of children, contrary to s.1 Protection of Children Act 1978;

b) A number of different offences relating to the possession and supply of unclassified video recordings or recordings in breach of classification by the British Board of Film Classification, contrary to the provisions of the Video Recordings Act 1984 and 2010;

c) Possession of an indecent image of a child, contrary to s.160 Criminal Justice Act 1988;

d) Possession of an extreme pornographic image, contrary to s.63 Criminal Justice and Immigration Act 2008;

e) Possession of prohibited images of children, contrary to s.62 Coroners and Justice Act 2009;

f) Disclosing private sexual images without consent, contrary to s.33 Criminal Justice and Courts Act 2015.

 

What is classed as ‘obscene’ under obscenity laws UK?

 

While the OPA 1959 is no longer as widely used by the CPS as it once was, it still provides a broad catch-all offence when other more specific offences do not apply.

In cases where the 1959 Act is relied upon by prosecutors, the statutory test of obscenity will inevitably come into play. The legal precedents created under the OPA 1959 also provide a definition of obscenity that is used in other legal contexts, for example, anything deemed likely to contravene the OPA test of obscenity is prohibited from videos awarded an R18 certificate by the British Board of Film Classification.

Under the Act, ‘obscenity’ is defined as a matter that would: “tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” This is different to the ordinary meaning of obscene — which typically refers to something being disgusting or depraved — where the prosecution must meet the higher threshold of having a tendency to depravity or corruption.

The statutory definition of obscenity is also intended to cover anything which is depraved, and is not limited to just sexual depravity or pornographic material. As such images of war targeted at children have been found capable of being obscene. Equally, any conduct which is itself criminalised, for example, material advocating the use of weapons, drugs or violence, will often provide a clear indication as to its tendency to deprave or corrupt.

 

What official guidance has been given on ‘obscenity’?

 

Since the introduction of the OPA 1959, and with a shift in moral boundaries over the last 60 years, a clear disparity had arisen between what was deemed to be offensive in a legal context and what is regarded as offensive by a significant proportion of the general public. This has been illustrated in a decreasing number of prosecutions under the 1959 Act, together with an increasing reluctance shown by modern jurors to construe material as depraving or corrupting, especially in respect of the private use of material amongst consenting adults.

In 2019, this finally led to revised CPS guidelines which indicated that pornography depicting legal acts between consenting adults will no longer be prosecuted under the 1959 Act, provided no serious harm was caused and the likely audience is aged over 18.

After much campaigning by various groups, this long-awaited guidance means that depictions of most safe and consensual activities, even BDSM activities, are unlikely to be subject to prosecution, provided they do not depict the infliction of serious harm. This more liberal approach now advocated by the CPS also means that prosecutors must no longer rely on their own subjective notions of moral depravity or corruption when making charging decisions.

In contrast, where conduct involves the commission of a crime, this will still provide a strong indication of its tendency to deprave or corrupt. This means that where the subject matter is inextricably linked with other criminality, so as to normalise or glorify it, it will still be prosecuted, either under the Act or under other more specific obscenity laws.

 

Is there any defence under obscenity laws?

 

In addition to clarifying the type of conduct that will no longer fall to be prosecuted under the 1959 Act, the 2019 CPS guidelines also provide clarification on the use of the public good defence. Assuming the prosecution can prove that the article in question had a tendency to deprave and corrupt, the defendant may still avoid criminal liability if it can show that publication of the article was nonetheless justified as being for the public good.

This means that the value of the work has to be considered from a scientific, literary, educational, or any other point of view when viewing the material as a whole. In the case of a film or soundtrack, the article may be justified in the interests of either drama, opera, ballet or any other art, or of literature or learning.

This statutory defence was originally intended to counter unnecessary literary censorship under the common law, but can still be used as justification for certain material, based on current notions of what is “in the public good”.

The OPA 1959 also creates a defence for where a person can prove that they have not viewed the material in question and had no reasonable cause to suspect that it was obscene.

 

What are the sanctions under obscenity laws UK?

 

The nature and extent of any sanctions imposed by the courts in the context of obscenity laws will depend on the charges laid. However, in most cases, the defendant will be facing a period of imprisonment or a fine. Under the OPA 1959, offences can be tried summarily or on indictment. The maximum sentence for publishing or being in possession of obscene material is 5 years’ imprisonment and/or an unlimited fine.

Where there is a choice of different obscenity-related charges, prosecutors can charge using the OPA 1959 in addition to other potential offences. In this way, the charges can reflect the seriousness and extent of the offending and provide the court with sufficient powers.

 

What is the future of obscenity laws for online publishing?

 

Even though the CPS has adjusted its prosecution practice to better reflect contemporary public attitudes towards minority sexual practices and producers of pornographic material, this does not necessarily equate to a decrease in obscenity-related prosecutions. In relaxing the rules for obscene publications in 2019, the CPS said it would “continue to robustly apply the law to anything which crosses the line into criminal conduct and serious harm”.

While in many respects obscenity laws in the UK have become more liberal, as content that was once illegal is now freely available online, at the same time the law is now able to criminalise far greater numbers of people, including not only producers and distributors, but also consumers of extreme online content. It is in this area of criminality, where increasing internet access over the last two decades has facilitated the dissemination of more extreme pornography than ever before, that we are likely to see far more prosecutions.

There are also calls for stricter legislative measures in respect of those in possession of obscene publications involving minors and non-consenting adults, as well in respect of those who host criminal, violent and extreme pornography online. It is therefore likely that the future application of obscenity laws will ensure much greater, not lesser, criminalisation and censorship, at least in the context of extreme online pornography.

 

Obscenity law FAQs

 

What is the crime of obscenity?

There are two criminal offences relating to publishing obscene material under the Obscene Publications Act 1959. The first offence deals with showing and distributing such material, whether or not for gain, while the second offence deals with possession of an obscene article with the intention of showing or distributing it.

What is an example of obscenity?

What constitutes obscenity will depend on the facts of each case, although any conduct which is itself criminalised, for example, material advocating the use of weapons, drugs or violence, will often provide a strong indication as to its tendency to deprave or corrupt. This can include but is not limited to sexual depravity.

What is an obscene publication?

Under the Obscene Publications Act 1959, an obscene publication is an article to be read, looked at or listened to that tends to deprave and corrupt those who are likely to read, see or hear the material that is contained in it, taking into account all the relevant circumstances.