Freedom of Expression: obscene, indecent, racially or religiously offensive material

Under English Law there is a right to freedom of expression, and this is an important hallmark of a democracy. Freedom of expression means the UK press and the print media – indeed, members of the public – are able to express themselves freely: to hold and express their opinions and give and receive information without interference from the state.

There are, however, important restrictions to this general right.

The restrictions imposed on freedom of expression relate to:

• Obscene material
• Indecent material
• Publications, etc, on the grounds of race
• Publications, etc, 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 (as well as other legislation).

Section 1 of the Obscene Publications Act 1959 sets out the test for obscenity: an article will be deemed obscene if its effect (or overall effect – ‘taken as a whole’) tends to deprave and corrupt those who are likely, when all the circumstances are considered, to read, see or hear the subject matter in it.

The definition of ‘article’ is wide, and includes anything that someone can read and/or look at. This includes:

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

However, both television and radio transmissions are exempt under the legislation.

‘Taken as a whole’ relates to the entirety of an article. If we look at a book, for example, the whole of the book must 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. The separate and distinct elements must be examined and the magazine, for example, may be found to be obscene simply on the basis that one or more article is considered obscene.

‘Deprave’ is defined as deviating from what is moral or right or proper or good. The meaning of ‘corrupt’ includes morally unsound or rotten, destroying purity, to pervert, debase or defile.

The court would need to be satisfied that the effect of the article is likely to deprave and corrupt the individual who is likely to come into contact with the article.  Examples include images of extreme sexual activity such as bestiality, necrophilia, rape or torture.

In the case of obscene publication, consideration of the likely audience of the article in question will be necessary. This may be readers of a magazine, newspaper, book, or the likely viewers of a film, for example. The court will need to decide whether the effect of the material is likely to deprave or corrupt a significant proportion of that audience.

Publication means distribution of an article, the circulation, selling, hire, giving or lending of an article.

Yes, the Obscene Publications Act applies to all types of new media. It therefore covers obscene articles and comments, and chats published on the internet and by other digital means.

Indecent material is regulated by the Indecent Displays (Controls) Act 1981. Someone who displays or causes or permits a display of any indecent material is committing an offence.

For the material to be displayed, it must be visible from a public place (ie. any place to which the public have or are permitted to have access). Areas where the public must pay to see the display (eg. art galleries), 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.

With the latest advances in, and prevalence of technology, the law has had to change to address the risks of the modern age. For instance, the Protection of Children Act 1978 was amended by the Sexual Offences Act 2003 to create an offence of making and distributing indecent photographs of a child.  

On conviction, the court will take into account various factors when deciding on the appropriate sentence:

• 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 is covered by the Public Order Act 1986 (amended by the Racial and Religious Hatred Act 2006). The 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.

Under the 1986 Act, there are three separate offences of inciting racial hatred: 

• 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.

Inciting religious hatred – including through publications – is covered by the Racial and Religious Hatred Act 2006 (which amended the Public Order Act 1986 to include religious hatred). Religious hatred is defined as hatred against a group of persons defined by reference to religious belief (or lack of religious belief).