Given all antediluvian laws that the Tory Taliban have been bringing in to censor the internet, I have been reading up on the statutes. The 50 year old Obscene Publications Act 1959 is an interesting artefact of pre-60s legislation. This was before the sexual revolution of the 60’s which dragged us out of the Victorian era of morality and a whole 18 years before the Sexual Offences Act 1967 hade even made homosexuality legal. Yes, it really is that much of a dinosaur which is totally out of touch with the Zeitgeist.
To be obscene, it must “deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”.
In order to reach such judgement, one logically assumes that those making this decision must review said material. Thus, one can simply determine obscenity by whether as a result of reviewing the police, legal representatives, judge and jury are all corrupted and depraved. If this is not proven, the test must fail and the material cannot be obscene. Furthermore, it would be a miscarriage of justice to be prosecuted by a system entirely made up of corrupt individual anyway.
How can prosecutions be made under this act?!
In summing up: If the material is deemed obscene, the above logically implies all the legislators, BBFC and ATVOD who viewed it are depraved and corrupt. If you maintain they are not, the verdict must be innocent. I rest my case, M’Lud.
Interestingly, LawThink calls the Act into question saying that “the test is based not on the offensiveness of any material, but on the effect it has on a potential reader. This has meant that the most offensive material is not deemed obscene because it would repulse, rather than corrupt, a viewer (the so-called ‘aversion argument’)”.
“So the British stereotype of being prudish and conservative may not be completely true. It turns out, after the case of R v Peacock on Friday afternoon, the average British person does not deem male phisting (sic), urination and BDSM obscene”
“It worked where there was a consensus on sexual values led by religious teaching – however, sexual attitudes are now so diverse that the concept of a common set of values is unrealistic. This point has been acknowledged by Lord Wilberforce who doubted the test was workable given it did not have a precise definition (DPP v Whyte [1972] AC 849).”
They then go on to examine whether obscene material does actually corrupt viewers, concluding that there is by no means a sounds evidential basis for the current law. The Fraser Report could not show a link between pornography and sexual offences and the in a recent UK government consultation it was concluded that one “cannot draw definite conclusions” on the issue. So, as I suggested, if nobody can be proven to be “depraved” or “corrupted” the test must fail.
This perhaps explains why so few prosecutions are successfully made under the Obscene Publications Act. It would appear that any smart lawyer could drive a coach and horses through this legislation. Hopefully, should it be replaced, any new legislation would take into account the current views of society and those that would be desirable to foster, e.g. a less patriarchal approach to what is acceptable.
The answer to my mind is allowing individuals to decide their own level of censorship so long as the material is consensual and not universally abhorrent, e.g. child porn. This means effective controls at user level that can be used to restrict personal internet usage, not blanket state censorship or licensing of the internet. Software suppliers and site owners should work together to come up with an effective solution to allow proper parental controls. It is not the job of the state to play mummy and daddy by deciding what we can see, never mind our children.
As the ATVOD admit, only a tiny fraction of porn accessed is UK based and almost all access by children is to free non-UK sites. Oddly, they seem to favour prosecution of niche female domination pay sites run by individuals which seem to be the least likely to be popular with under-age surfers. Meanwhile, children are left with an international cornucopia of free material. I doubt many will be crying into their MacShake’s over the loss of specialist UK spanking or femdom sites. I expect some can even get real life spankings from their parents if they make their browsing habits known 🙂 Anyway, unless it must be British, the choice is endless and unaffected.
The new video on-demand regulations do absolutely nothing to achieve the stated objective of protecting children but I can see how they might be hoping to capture a lucrative slice of multi-billion porn market and, most importantly, all video based web sites via licence fees. Cynical, moi?