A failed attempt to change the definition of obscenity to make it easier to prosecute
18th December 1996
Lord Halsbury introduced a private members bill in the House of Lords to revise the obscene Publications Bill by replacing the tendency to deprave and corrupt test with a shopping list of sexual acts that would be illegal to depict.
bill did not attract government support and proceeded no further. Here are a few selected passages from the 1st Reading debate highlight the government's reasons for not being convinced of the merits of the bill.
House of Lords: 18th December
The current test under the present law is, as several noble Lords have said, whether it tends to deprave and corrupt persons likely to read it. Over the years
I have heard a number of people say that a smart defence lawyer will butter up the jury, tell them what mature and sensible people they are and then ask them, "Were you depraved and corrupted by what you have seen or what you have read? Of course
you were not". It takes a very brave and bold juryman to say, "Yes, sir, I was depraved and corrupted by what I saw", because that will be seen as a sign of weakness. The test has not worked for years. Prosecutors are finding themselves in
more and more difficult situations and prosecutions are becoming fewer.
I believe that the present law is bad and ineffective. Therefore, there are only two options left. One is to abolish it and the other is to change it. I am
certain that the country does not want to see the Obscene Publications Act abolished. Therefore, the only option is to change it. The right reverend Prelate has asked for discussion. This has been discussed up and down the country for years. I fully
agree that a change in the law is extremely difficult. What is the right course to adopt?
I congratulate the noble Earl, Lord Halsbury, on ensuring that the important subject of violence is
not left out of this Bill by its inclusion in the list and I am sure that that will be appreciated by many people around the country. It surely follows logically from all the initiatives that are going on to t
"mutilation or torture of, or other acts of gross violence towards, humans or animals",
should be regarded as obscene, if the violence is portrayed,
"in a manner which a reasonable person would regard as grossly offensive".
Last week, the Director of the British Board of Film Classification said that the board is doing all that it can to deal with violence and that the current content of films stems from the Hollywood culture of violence. I hope this
House will say tonight that enough is enough.
Lord McIntosh of Haringey:
The difficulty about the 1959 law is that it makes it a punishable offence to induce things that are not in themselves criminal. There
is an alternative to the obscenity rule and that is the indecency rule. That is important for the transmission under the Post Offices Act of material which the noble Earl might well consider to be obscene. The point of raising the question of indecency
is not because that matter features in the Bill but that it raises criteria that are important in understanding the issue with which we are dealing. The quality of indecency is readily inferred from the defendant's motive of sexual gratification. When
looking at issues of indecency the two matters that must be taken into account are the intention of the perpetrator of the alleged indecent act and the setting in which it takes place. Clearly, some physical actions that are entirely appropriate in a
doctor's surgery would not be appropriate on a London bus. That applies much more widely. Unless the definition of obscenity or indecency that we use takes into account intention or setting, it will be a defective definition.
It is a
myth to believe that there can be a recognised standard of public opinion to which we can appeal. Public opinion has changed greatly over the years. One of the problems faced by supporters of the 1959 Act is that juries have increasingly been unwilling
to convict not only because of the difficulties of definition in the Act but perhaps also because public opinion itself has changed over the years. Those who have conducted research into violent and sexual material on television, films and videos have
found increasingly over the years that people are becoming--in my view, rightly--more intolerant of violence but less intolerant of the depiction of sexual activity. That, whether we like it or not, is a fact of public opinion, and such things change.
I come now to my second point, which is the wording of the Bill. I am afraid that the noble Earl's attempt to use an ostensive definition, instead of the definition used in the 1959 Act, is doomed to failure, but it is not doomed to
failure just because of any defect in the ostensive definition itself. I would say on that point only that the definition includes acts which are themselves legal, and, indeed, in terms of human sexual activity some of us would say desirable, and lump
them together with acts which are illegal acts of violence or torture. Because the Act is concerned with articles, which includes words as well as pictures, it is difficult to apply those ostensive definitions equally to words and to pictures. They are
clearly designed for pictures rather than words, and it would be a matter of opinion whether they applied to words.
Then of course the attempt to rely upon ostensive definitions falls because the noble Earl is forced to use words such
as "reasonable person". Who is a reasonable person? The 1959 Act says that it is someone who is likely to see the material or read it. Surely that is much more likely to be an effective definition than a "reasonable person", which
could be anyone. And then "grossly offensive": what is "grossly offensive"? That will change over the years. Juries will be required to make judgments which it is inappropriate for them to make.
I am afraid that it
is not enough to rely upon illegal acts, because illegal acts, after all, have changed in the law. The Criminal Justice Act 1994 did for the first time legalise heterosexual anal intercourse. Are we going to change our views on censorship entirely as a
result of that change in the law? No, let us stick to what we know works--the protection of the vulnerable. Let us not be diverted into the issues unfortunately but well meaningly raised in the Bill.
The Earl of
The law relevant to this issue is the Obscene Publications Act 1959. At its heart is the proposition that material is obscene if it causes harm--that is to say, if its effect, if taken as a whole, is such as
to tend to deprave and corrupt those persons who are likely to see, read or hear it. This test has been with us for a considerable time. Indeed, it was first formulated as common law in the 19th century and it has been the subject of debate whenever
concerns have been expressed in this area. The fact that it has remained unchanged may testify to its strength: it certainly reflects the difficulty in finding anything better.
It is a flexible test, pointing the court to the balance
which must be struck between penalising material which may have harmful effects on its audience and avoiding prohibition of genuinely artistic or scholarly material. There have been repeated attempts to find a different approach and the Government have
kept the issue under continuing review. The fact that we have done so is an acknowledgement that the present position is not wholly satisfactory, and this is an issue which we ourselves are also concerned to address. This Bill provides opportunity to
further that debate. Nevertheless, we have not yet been able to find a better alternative.
The Act is not moribund. In 1995 there were 356 prosecutions and 259 convictions, although there is concern that the nature of the material
which falls below the threshold for prosecution has been growing steadily worse. And we have kept the law up to date with subsequent changes, particularly in regard to child pornography where our controls are among the toughest in the world.
Nevertheless, the noble Earl has argued this evening that the law is ineffective. He believes that it has become impossible for the courts to apply the test in the 1959 Act and he argues that it is impossible to say with any certainty what will fall foul
of its provisions.
We shall be listening extremely carefully to the debate in the hope that it will signal the way forward. Nevertheless, I have to tell your Lordships that we are not convinced that this Bill is right, for the
following reasons. It would introduce a new general test of obscenity, supplemented by a widely drawn list of activities to be deemed, subject to the test, prima facie "obscene". This general test focuses on what is grossly offensive to
reasonable people. I agree with the right reverend Prelate that that is where the difficulty lies. The term "gross offensiveness", for example, is no clearer in meaning that the "deprave and corrupt" test, and the Government's view is
that juries would fall back upon their own judgment in deciding what was or was not obscene.
The test of gross offensiveness is not based on any consideration of harm to society and, as such, could leave the United Kingdom in breach
of its obligations under the European Convention on Human Rights. "Harm" may be a justification for restricting freedom of speech; "offensive" may well not be. People may find many things "grossly offensive", including
political opinions or even revisionist views of history.
The noble Earl has suggested that the test of the "reasonable person" is the key to resolving this problem. He has drawn attention to the frequent use of that test in
the criminal law, not least in the Protection from Harassment Bill. But I believe that we are dealing with two very different situations. In his or her usual guise in the criminal law, the reasonable person could be anyone. We invite the courts to
consider what any rational person would think in the circumstances. Whoever we chose, whether conservative or radical in their political or moral views, would come to the same conclusion. But it is a very different "reasonable person" whom we
are asking to solve our problems in this case. The personal moral code of the individual concerned could fundamentally affect the judgment reached. I do not believe that this key test at the heart of the noble Earl's Bill would provide the courts with
the certainty which they must have for the proposed legislation to work.
The Bill would also amend the current "public good" defence. Under Section 4 of the Obscene Publications Act 1959, it is a defence to the charge of
publishing an obscene article if it is proved in court that its publication is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
The noble Earl's Bill would amend this defence by substituting the words, "fully justified as being for the good of the public as a whole" for, "justified as being for the public good".
not appear a major change, but it could have very significant effects. There is a possibility, for example, that it could make illegal some articles that are aimed at a minority group such as the safe sex leaflets aimed at young homosexuals. Those
leaflets are explicit and expressed in a way which no doubt many people would find shocking. However, there is a clear need for public health reasons to provide this group with a safe sex message in a manner likely to attract their attention. The Bill
might put that in jeopardy.
The right reverend Prelate mentioned the need for greater control to be exercised over pornographic TV and satellite broadcasts. The Government have used their powers in regard to three such foreign
channels by making proscription orders against them. It is a criminal offence to supply smartcards, to advertise and to promote such channels.
I have outlined a number of reasons why the Government cannot support the terms of the Bill
although, in keeping with the traditions of the House, we shall not oppose its Second Reading this evening. However, we welcome the opportunity which the noble Earl's Bill has provided to address a real problem about which we are concerned. We are
open-minded and open to suggestions as to the way forward and hope that the Bill will act as a catalyst in bringing wise counsel to bear on this difficult issue. We shall certainly follow up any possible ways forward which may emerge from the debate.
The Earl of Halsbury:
If the Government do not actively oppose the Bill, I shall try to arrange a Committee stage where we can flog out those matters by means of amendments.
I am a trifle disappointed by the Government's reaction. They agree that the present situation is unsatisfactory but--I quote a familiar phrase--they seem eager to wound but afraid to strike. I wonder what it is they are afraid of. Do
they think that the Bill in its present form would make matters worse?
Are they concerned about the load on the criminal courts which will occur if pornography is prosecuted more intensively? Do I detect a sort of vague numinous
presence of what I might call the Great Whore of Grub Street as specified by my noble friend in the previous debate this evening, brooding over our proceedings and threatening everyone with her disapproval? I do not know about that, but I ask your
Lordships to give the Bill a Second Reading.
The proscription of foreign satellite sex channels
18th December 1996
The Minister of State, Department of National Heritage (Mr. Iain Sproat):
I am grateful to the hon. Member for Leigh (Mr. Cunliffe) for raising these important issues, and giving the House the opportunity to debate them. There is widespread concern in the country about standards of taste and decency on television. The
Government strongly believe that there is no place for hard core pornography in a society that cares about the protection of children. Hard core pornography, in whatever medium, is unacceptable. I want to take this opportunity to set out clearly the
situation in respect of television pornography.
The type of television material about which we are concerned falls into two distinct categories: the domestic so-called adult channels, which are licensed by the Independent Television
Commission, and the channels that are receivable in the UK via satellite and transmitted from abroad by foreign broadcasters. I shall deal with each in turn.
Broadcast services that are licensed in the UK are governed by the
arrangements, agreed by Parliament, in the statutory framework of the Broadcasting Acts and the BBC charter. Those arrangements place responsibility for maintaining standards of taste and decency on regulators and broadcasters. The House will be aware
that my right hon. Friend the Secretary of State for National Heritage regularly meets the broadcasting regulators and has frequently discussed matters of taste and decency with them. We have ensured that all broadcasters are held responsible for
programme content. In the new BBC charter and agreement we have placed specific obligations on the corporation to maintain standards of taste and decency and given the governors a clear duty to ensure compliance with their guidelines on standards. That
responsibility on the governors is new and was introduced only this year.
The BBC has also recently reviewed its producer guidelines and this week published a series of pledges to viewers, including a commitment to monitor their views
and concerns. The BBC document specifically states:
"for each of us, sexual activity happens after moral decisions have been made; its portrayal therefore should not be separated from recognition of the moral process."
I welcome that recognition by the BBC of the importance of such ethics in broadcasting.
With the development of the cable and satellite broadcasting sector, there are dedicated adult channels now licensed in this
country which broadcast adult erotica. Their programmes are, broadly speaking, titillation. There are at present three such channels. They are: Playboy TV, the Adult Channel, and Television X--the Fantasy Channel, all of which are licensed by the
Independent Television Commission and are subject to its licence conditions and guidance codes.
To prevent viewing by children, several conditions must be met by the broadcasters. The channels are provided only on payment of a premium
rate fee in addition to the cost of subscription, and must be specially selected by the customer. That is to say, they must not be offered as part of a subscription package. They are encrypted, which means that the signal is scrambled and can be
unscrambled only by the appropriate smart card. They may show material of a more explicit nature than would be acceptable on mainstream channels, but only between the hours of 10 pm and 5.30 am. I am told by the ITC that channels restrict their explicit
output to the hours between midnight and 5.30 am and show only material that has been given an 18 certificate by the British Board of Film Classification or has been edited to an equivalent standard. They cannot show the more explicit sexual material
which might be granted a restricted 18 video classification.
The ITC is vigilant in monitoring the adult channels and has intervened where its codes have been breached--five times since 1992. These interventions take the form of
warnings to the broadcasters. Four of the warnings were made shortly after the channels were introduced, and the broadcasters responded by avoiding further transgressions. In 1995, the commission upheld a complaint and gave a formal warning to Television
X following the transmission of a film which included material that had been cut by the British Board of Film Classification. If necessary, the ITC has the power to issue further sanctions, including fines and, ultimately, the withdrawal of a licence.
However, to date, the ITC considers that the warnings have been effective and sufficient.
Our concern to exercise proper control over standards on television extends also to films and videos. In the case of film, it is important to
remember that cinemas can control access to films and ensure that children and young people are excluded from films that have been classified as unsuitable.
Videos present a more difficult problem. In the cinema, the viewer is in
public, experiencing the reactions of other viewers. He is also seeing a film live--running straight through without breaks or repetition. When the same film is shown on video, it can be viewed in private and scenes can be watched over and over again.
Although it is an offence to sell or rent videos to those judged too young to watch them, videos are in the home and can be misused.
The Obscene Publications Act 1959 covers the most offensive material on video, but we are concerned
about the easy availability of other violent and sexually explicit videos. My right hon. and learned Friend the Home Secretary asked for a report from the British Board of Film Classification on the content and classification of videos on 5 November, and
he expects to receive that report by the end of this month. The Government will consider that report closely.
I turn now to the controls we have on the unacceptable material beamed in from other countries. The services concerned are
pornographic television channels that are receivable in the UK via satellite, and transmitted from abroad by foreign broadcasters. I particularly welcome the opportunity to set out the facts on this matter, which has received considerable coverage in the
media recently. Some of the press coverage has, unfortunately, been misleading.
Other European countries share our desire to protect children from pornography. The television without frontiers directive, which the hon. Member for
Leigh mentioned, prohibits broadcasters in all member states of the European Community from transmitting unacceptable pornographic television programmes, but the definition of what is unacceptable within their frontiers is up to individual states to
decide. Other states can complain if they feel the material breaches the directive. That, coupled with the powers established in our domestic legislation--the Broadcasting Act 1990--enables us to take action to restrict access to foreign broadcasters who
transmit unacceptable material.
To understand the extent of the powers available to us in respect of foreign broadcasters, it is important to understand the principle of single jurisdiction. To address problems that arise from
transfrontier broadcasting, it is essential to have international rules that apply equally to all signatory countries. Each country should ensure that broadcasters operating under its jurisdiction comply with the rules. For the rules to work effectively,
each broadcaster must be the responsibility of one, and only one, country. Member states should not try to influence broadcasters. As a single market measure intended to allow the free flow of broadcasting throughout the Community, the directive
prohibits member states from interfering with broadcasters outwith their jurisdiction. We would not take kindly, for example, to another country trying to regulate the BBC.
There is one exception to that rule, and it allows us to act
against foreign broadcasters that transmit unacceptable pornography. I shall quote directly from the directive.
"Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their
jurisdiction do not include programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence."
That could hardly be more clear. The
directive provides that, when member states believe that a breach of that provision has taken place, they may take measures against the relevant broadcaster.
A second category of programmes, which contain material that is unsuitable
for children but is of a less damaging nature, such as those licensed by the ITC, can be broadcast only when it can be ensured that, by selecting the time of broadcast--late at night--or by technical measures such as encryption, children are prevented
from viewing it.
A recent judgment by the European Court of Justice found that the UK had misinterpreted some of the provisions on jurisdiction. The Government are considering the court's judgment carefully and, in doing so, will have
regard to on-going negotiations on the revision of the directive. However, the important point for us to recognise today is that the judgment had no bearing whatever on our powers to take action against satellite pornography.
Broadcasting Act 1990 established powers for my right hon. Friend the Secretary of State for National Heritage to proscribe foreign satellite services that broadcast programmes which offend against good taste or decency. In doing so, she may act only
upon a notification by the Independent Television Commission, which takes the initial view on which services are considered unacceptable. Upon receiving such a notification, the Secretary of State may make a proscription order when she considers that to
do so would be in the public interest and would be compatible with the UK's international obligations.
What is a proscription order? A proscription order declares a broadcaster unacceptable and creates criminal offences for various
acts in support of a proscribed broadcaster. It makes acts such as the supply of smart cards, the supply of programme material, advertising on or for the channel, publishing details of programmes and the provision of any other service in support of the
broadcaster criminal offences. By stopping the sale of smart cards, we restrict access to those channels in the UK.
Two proscription orders against pornographic broadcasters--those against Red Hot Television and TV Erotica--have
already proven successful in restricting access to those services in the UK. On both occasions, we were supported in our action by the European Commission, which confirmed that our action was compatible with Community law.
October, my right hon. Friend the Secretary of State made a third such order, against a foreign broadcaster called Rendez-Vous Television, which broadcasts an unremitting diet of explicit hard core pornography in clear breach of the European directive.
The proscription order against Rendez-Vous came into force only on 31 October, so it is still too early to assess its effectiveness, but I believe it will have the desired effect of significantly reducing the possibility of such
objectionable material being seen in the UK, and above all, being seen by children.