Obscene Publications Act 1959: 60th Anniversary
On 29 July 2019, 60 years will have passed since the Obscene Publications Act 1959 received royal assent. This House of Lords Library Briefing provides information on the Act. It also covers developments in the law that were relevant to the then Government’s attempt to ban the publication of D H Lawrence’s Lady Chatterley’s Lover (R v Penguin Books Ltd 1960). This includes the previous case of R v Hicklin (1858).
Whilst the Obscene Publications Act 1959 has subsequently been amended, it still makes it a punishable offence to distribute, circulate, sell, hire, lend or give away obscene material. It defines obscene material as that which is likely to “deprave and corrupt” the intended audience when taken as a whole. This includes not only sexually explicit material, but also that relating to violence and drug taking. It has been argued that material which simply shocks or disgusts, however, will not tend to fall under this definition. As a result, prosecutors have tended not to take action against the written word, but rather focus almost entirely on sexually explicit pictorial material, including: photographs; magazines; films; or websites. Although the Act applies to material broadcast on televisions, stricter tests relating to harms and offence are available under the Communications Act 2003 and the Ofcom broadcasting code.
The Act also includes sections relating to search and seizure and available defences. It creates a power where, in accordance with a warrant, police can seize obscene materials. The Act also offers the defence of ‘public good’. This means that a court would not convict a person if they can justify the publication of the material as being for the public good. For example, that it has scientific, literary or artistic merit. In relation to any film or soundtrack, the individual must justify the material on the grounds that it is in the interests of drama, opera, ballet or any other art, literature or learning. Consequently, prosecutions tend to focus on material which can have little claim to artistic or other merit, where an individual has produced material explicitly to excite the viewer.