Obscenity - United Kingdom

United Kingdom

See also: English criminal law#Offences against public morals and public policy

In the United Kingdom, the Obscene Publications Acts sets the criteria for what material is allowed to be publicly accessed and distributed.

Stanley Kauffmann's novel The Philanderer was published by Penguin Books in 1957 and was unsuccessfully prosecuted for obscenity.

Sex crime has generated particular concern. In 1976 the BBFC claimed that, in that year, it had viewed 58 films depicting "explicit rape", declaring scenes that glorified it as "obscene". As opposed to questions of "indecency", which have been applied to sexual explicitness, films charged with being obscene have been viewed as having "a tendency to deprave and corrupt" and been liable to prosecution.

In 2008, the UK prosecuted a man for writing a fictional sex story. In 2009, the case was dropped by the crown prosecution service (CPS) before it reached trial.

Obscenity law in England and Wales is currently governed by the Obscene Publications Act, but obscenity law goes back much further into the English common law. 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 peace appears to be the first conviction for obscenity in the United Kingdom, 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 countries, such as the United States.

The Obscene Publications act is notoriously vague, defining obscenity as material likely to "deprave and corrupt". The 1959 act was passed just as most Western countries were about to enter a new phase of sexual freedom. The trial of Penguin Books over Lady Chatterley's Lover in 1960 failed to secure a conviction and the conviction in the 1971 trial of Oz magazine was overturned on appeal. An attempt to prosecute the University of Central England in 1997 over a copy of a library book by Robert Mapplethorpe was abandoned amidst derision from academics and the media .

During the 1960s and 1970s most Western countries legalised hardcore pornography. By the 1980s the UK was almost the only liberal democracy where the sale of hardcore pornography was still completely illegal, although ownership was not a criminal offence (except child pornography). Home videotape was a booming market and it was relatively simple for individuals to smuggle hardcore material in from Europe or the USA, where it had been purchased legally, either for personal use or to copy it for distribution. This resulted in a considerable black market of poor quality videotapes. Meanwhile, people attempting to buy pornography legally would often be stuck with heavily censored R18 certificate material.

Whilst the authorities did their best to stay on top of illegal pornography they found that juries, whilst not particularly liking the material, were reluctant to convict defendants where the material was intended for private use amongst consenting adults. During the 1990s the advent of the internet made it easier than ever before for British citizens to access hardcore material. Finally, in 2000, following the dismissal of a test case brought by the BBFC, hardcore pornography was effectively legalised, subject to certain conditions and licensing restrictions . It is still an offence to sell obscene material by mail order . In late August 2005, the UK announced that it plans to criminalize possession of extreme pornographic material, rather than just publication .

After 1984 videotape sellers were more likely to be prosecuted under the Video Recordings Act rather than the OPA. The VRA requires that all videos must have a certificate from the BBFC. If the BBFC refuses a certificate a video is effectively banned for home viewing, but not necessarily in the cinema. Four films that were originally refused a certificate, The Exorcist, Straw Dogs, The Evil Dead and The Texas Chainsaw Massacre were granted a certificate in the late 1990s and have subsequently been screened on mainstream television.