Censorship in the United Kingdom  

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Publishing in the United Kingdom, Obscene Publications Acts, Blasphemy law in the United Kingdom, English defamation law

Censorship in the United Kingdom has a long history with variously stringent and lax laws in place at different times.

Contents

Obscenity law

Obscenity law in England and Wales is currently governed by the various Obscene Publications Acts, but obscenity laws go back much further into the English common law.

17th century

18th century

"In 1707, James Read and Angell Carter of England are found guilty of publishing The Fifteen Plagues of a Maidenhead. At the same time John Marshall is found guilty for publishing Rochester's Sodom: of, the Quintessence of Debauchery and The School of Love (An English translation of L'Academie des Dames). Although all were found guilty, James Read moved their arrest be in lieu of judgement on the grounds that obscene libel was not something the court had the power to deal with. The court agreed." --[1]

The conviction in 1727 of Edmund Curll for the publication of Venus in the Cloister or The Nun in her Smock under the common law offence of disturbing the King's peace was the first conviction for obscenity in Great Britain, and set a legal precedent for other convictions.

These common law ideas of obscenity formed the original basis of obscenity law in other common law states, such as the United States.

See also A long time burning: the history of literary censorship in England‎ by Donald Serrell Thomas and Libertine literature in England, 1660-1745 by David Fairweather Foxon, 1966

19th century

19th century censorship

20th century

A defence against the charge of obscenity on the grounds of literary merit was introduced in the Obscene Publications Act 1959. The OPA was tested in the high-profile obscenity trial brought against Penguin Books for publishing Lady Chatterley's Lover (by D. H. Lawrence) in 1960. The book was found to have merit, and Penguin Books was found not guilty — a ruling which granted far more freedom to publish explicit material. This trial did not establish the 'merit' defence as an automatic right; several controversial books and publications were the subject of British court cases throughout the 1960s and into the 1970s.

There is a substantial overlap between legal erotic literature and illegal pornography, with the distinction traditionally made in the English-speaking courts on the basis of perceived literary merit. Purely textual pornography has not been prosecuted since the Inside Linda Lovelace trial of 1976. Child pornography and bestiality are illegal under the Sexual Offences Act 2003. In late August 2005, the government announced that it plans to criminalize possession of extreme pornographic material, rather than just publication. Computer and video games are generally exempt from the Video Recordings Act; however, those depicting sexual content, or gross violence towards people or animals, must still be submitted to the British Board of Film Classification for consideration. Games can be banned in this way (as was Carmageddon in 1997).

Almost all adult stores in the UK are forbidden from having their goods in open-shop windows, which means the shop fronts are often boarded up or covered in posters. A warning sign must be clearly shown at the entrance to the store, and no items can be visible from the street. No customer can be under eighteen years old. The Video Recordings Act 1984 introduced the R18-rated clasification for videos that are only available in licensed sex shops, but hardcore pornographic magazines are available in newsagents in some places. The Ann Summers chain of lingerie and sex shops recently won the right to advertise for workers in job centres, which was originally banned under restrictions on what advertising could be carried out by the sex industry.

Indecency vs. obscenity

The terms "indecency" and "obscenity" are often used in the English language as if they were synonyms, or as if "obscenity" was a stronger form of "indecency". English law appears to have two contradictory legal definitions of 'obscenity', whereas 'indecency' is somewhat under-defined.

The definition of obscenity used in the Obscene Publications Act 1959 (and the Theatres Act 1968, see below) rests on an earlier common law definition of the concept, which defined obscenity as a 'tendency to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall'. (R v Hicklin (1868) LR 3 QB 360. s 1 of the Obscene Publications Act accordingly states that an article is to be deemed obscene if its 'effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it'.

Obscenity, under this 'deprave and corrupt' test, is not limited solely to sexual material, and has, for example, been applied to material concerning drug-taking and pictures of non-sexual violence. It seems that the tendency to 'deprave and corrupt' is aimed at some kind of deviation from contemporary community moral standards (raising, of course, the issue of whether commonly shared community standards of this sort can be taken to exist). It should be noted that in practice the Obscene Publications Act 1959 is used "almost exclusively against explicit pictorial material dealing with what is generally regarded as deviant behaviour: in other words, sado-masochism, bestiality, paedophilia, bondage, etc" (R Stone, Textbook on Civil Liberties and Human Rights (Oxford, OUP, 2006) p374). The last time it was used to ban a prose novel for its content was "Lord Horror" by David Britton in 1991.

The other test in relation to obscenity in English law is found in statutes other than the OPA 1959 and the TA 1968 (see above). The courts have established that the meaning of the word 'obscene' (in relation to, for example, the Post Office Act 1953) should be given its dictionary meaning - covering material that is "shocking, lewd, indecent and so on". This means that under the OPA 1959 the material must tend to 'deprave and corrupt' in order to qualify as obscene, while under the alternative definition the material can be found to be obscene if it 'shocks and disgusts' the reader. (However, it should be noted that 'shock and disgust', under the OPA 1959, can provide a defence to an obscenity charge, because a person who is shocked and disgusted by material may be unlikely to be depraved and corrupted by it. Thus, at present, in English law, there are two contradictory definitions of the meaning of the term 'obscenity'.)

When it comes to 'indecency', this term is often used in conjunction with obscenity, but is under-defined. The word seems to mean 'shocking and disgusting' but less so than obscenity, but there has been relatively little offered in the way of definition by judges. Lord Parker, in R v Stanley [1965] AC 435 did attempt to differentiate between obscenity and indecency in terms of their relative seriousness on a spectrum of offensiveness to 'recognised standards of propriety'. Indecency covers 'anything which an ordinary decent man or woman would find to be shocking, disgusting, or revolting' (Knuller v DPP [1973] AC 435, at 458 per Lord Reid). Beyond this there is no real clarification of the precise meaning of 'indecency' in English law, at present.

Knuller v DPP 1973 AC 435 was decided in accordance with Shaw v DPP [1962] AC 22. Shaw, the publisher of "The Ladies Directory", a guide to London prostitutes, was charged with "conspiracy to corrupt public morals". The House of Lords held that this unknown offence would be recognized because the court had a "residual power to uphold the moral welfare of the state". Lord Reid, who felt this was a bridge too far in judicial lawmaking, gave a dissenting judgement, famously saying that "the courts should not rush in where Parliament fears to tread". Eleven years later Lord Reid gave the leading judgment in Knuller, saying that although he had disagreed with the decision in Shaw (and that he still did), in the interests of judicial certainty he would not overrule Shaw.

Prior restraint

prior restraint

Beyond obscenity law, there have been a number of organizations whose main function was to approve material prior to distribution.

Plays and theatres had long been licensed by the Crown prior to 1737. Licensure of a playhouse, however, only gave a general patent. The crown had no ability to censor before plays were performed. Under the provisions of the Theatrical Licensing Act of 1737 as extended by the Theatres Act 1843, the Lord Chamberlain's Office was able to censor plays. This role continued until the Theatres Act 1968 abolished the practice following several cause célèbres, and a long campaign by the theatre critic Kenneth Tynan among others.

The British Board of Film Classification is the de facto film censor for films in the United Kingdom; since films not rated by the BBFC cannot be shown in most cinemas, or distributed as videos or DVDs, lack of BBFC approval generally makes productions of such films uneconomic.

  • In the case of films shown in cinemas, local authorities have the final legal say about who can watch a particular film. Almost always local authorities accept the Board's recommendation for a certificate for a film.
  • Under the Video Recording Act 1984, almost all video recordings must be classified by an authority chosen by the Home Secretary. This classification is then legally binding. Since the introduction of the Act, the BBFC has been the chosen authority. Certain works such as those that are related to sport, religion or which are designed to educate can be exempt from classification by the BBFC under the act.

The Broadcast Advertising Clearance Centre pre-approves most British television advertising (under Ofcom rules, other broadcasters can also approve their own advertising content, but most rely on the BACC). The Advertising Standards Authority is the regulatory advertising body, but can only prevent the republication of advertisements after upholding complaints from the general public.

The advent of the Internet access has made the act of censorship more difficult, and there has been a relaxation of censorship in recognition of this. BBFC guidelines have been relaxed further to allow the limited distribution of hardcore pornography under an R18 certificate, partially because of this, and partially because of a recognition that public attitudes have changed. Further confirmation of this change in attitude was provided by the French film Baise-moi, which was given an 18 certificate despite showing scenes of unsimulated sexual activity.

Ofcom is now the regulatory body for UK television, radio, and telecommunications services since the abolition of the Independent Television Commission. Ofcom exerts its powers under the Communications Act 2003. The government's new requirements for Ofcom only require it to ensure adherence to "generally accepted standards" and prevention of harm, removing the former requirement to adhere to standards of "taste and decency".

Worldwide Press Freedom Index, published by Reporters Without Borders, gave the United Kingdom a score of 5.17, making it 24th.

See also




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