One of the main downfalls of the current obscenity law is that it is scattered over many statutes and cases and littered with uncertainty. In concurrence with the Report of the Williams Committee, therefore, I would recommend the abolition of all current obscenity and indecency laws24, to be replaced by one all-encompassing statute; and the discontinuance of the use of the terms obscene and indecent25, because they stem from a moral system of censorship which belongs in a bye-gone era and have caused problems of interpretation in their use in the current system.
They would be replaced by three categories of material: universal, restricted and suppressed, analogous to the system in New Zealand . The deprave and corrupt test would also be scrapped in favour of the simpler, clearer and more objective system described below. The first question which must be answered when deciding upon the format of a new system would be whether proactive or reactive controls will be imposed – whether material is censored before it is available to the public, by some body akin to the BBFC, or after release, via complaints brought before the courts or similar body.
Prior restraints are seen as particularly cumbersome to the principle of free speech because of the possibility that some material will not come to light at all, whereas if punishment is imposed after the material has been released then, although this is probably not relevant to much of what comes within the bracket of pornography, any important ideas embodied in it will have been heard. The only medium for which a system of prior restraint can be justified is film. Almost all countries have some pre-classification of films.
This is seen as necessary because the potential impact of the medium may render it more offensive or, depending upon the approach taken, more likely to deprave or corrupt the mind, and thus people need to be effectively informed about the content of a film before they or their children watch it. The system can be advisory, as in America, or compulsory, as is the case for the age brackets 15 and 18 in Britain. I would propose a similar system of film classification as the BBFC currently implements, with a few minor alterations.
Local authorities should have no part in licensing films on obscenity or any other content-based ground. This should be the job of the BBFC in law as well as in practice. The age category 15 should also be made advisory. As has been said before the aim of law in this area should be to increase choice not to restrict it. Films may still be classified suitable only for those over 18 on the basis of violent or disturbing themes, but no longer on the basis of explicit sexual content. 18 is the age of majority and there are some themes that may not be suitable for those below this age, but sex is not one of them.
That a sixteen year old person can legally have sex but cannot legally watch pornography is manifestly inconsistent. Films restricted for their sexually explicit nature should be given an R16 certificate, and 16 should be the age necessary for admittance to sex shops. The R16 and 18 films should carry mandatory age limits to maximise the realm of what can be included: if film censors knew that, accompanied by an adult, a child could go to the cinema and see a film in this category, they would surely be prone to greater stringency, and rightly so.
Next to be settled is the category of material that shall fall foul of the law. Because the harm in the suppressed category is on the participants, logically that which has no participants cannot be suppressed. So, there can be no suppression of the written word, as this is the perception of the author. Even if the writing was based on a real life situation in which harm was inflicted, the resulting material is the author's perception. Even if acts, resulting in harms, are commissioned solely for the purpose of the literary work, the harm is not what is marketed and the material should not be suppressed.
The acts will, of course, fall foul of the ordinary criminal law but that is not under consideration here. The same is true for works of art, cartoons and computer-generated images. That which can be suppressed would include film, photograph, live performances including theatre and, conceivably, sound recording. Because any restrictions on freedom of speech must be 'necessary in a democratic society', material which is to be suppressed completely must be minimised. Material can, however, be subject to restricted circulation without the same danger to free speech.
So, material that would deeply offend a person of reasonable sensibilities, because of its sexual nature or connotations, should not be distributed indiscriminately, but should be available only in restricted circumstances. The form that restrictions in circulation should take, however, cannot be applied evenly across all media. What might be acceptable in a television program broadcast at midnight may not be the same as what would be acceptable on a billboard poster in the town centre. As the Williams Committee noted26, "the aim of treating all the media uniformly is misconceived.
" The retention of the BBFC to classify films for cinema and video release means that to impose some kind of inflexible statutory guidelines would not be helpful, so decisions as to the level of restriction required for a particular film would remain with the BBFC. The current classification system would also remain unchanged, apart from the 15 classification becoming advisory. Terrestrial television and un-encoded satellite television would not be allowed to broadcast any material in the restricted category before the watershed, which would remain at nine o'clock.
After nine o'clock, any material which would fall into the restricted category would be required to be broadcast after its content and recommended audience had been made clear. In practice, the output of the main channels would be unchanged before the watershed, but more explicit material would be allowed after 9pm. This would give people the choice to avoid or to protect their children from material which they do not wish to see without unduly restricting the right to receive television broadcasts dealing with adult themes. The same provisions would apply to radio broadcasts, although in practice they may be of limited application.
Encoded satellite broadcasts would have a much higher level of tolerance and would be under the same provisions as for films classified R16, allowing all material which was not in the suppressed category, again after sufficient warnings. Theatres would remain under largely the same obligations as they are now, but would be dealt with by the new statute. The Williams Committee27 recommended that the difference in experience between live shows and recordings was such that different rules should apply, and sex could only be simulated in live shows.
While most people would not find such shows to their taste, there does not seem to me to be a pressing need to ban them. So, as long as adequate warnings were displayed as to the content of the performance in such a way as that nobody could see any restricted material without consciously deciding to pass the warning, and no person under sixteen was permitted entry to shows containing real sex or sexual acts, all material which does not fall into the suppressed category would be permissible in live shows.
The last category would be the still picture, addressing two recent situations where the attempted application of the existing law ended in calamity – that of the book of photographs by Robert Mapplethorpe and the art exhibition at the centre of the R. v. Gibson and Sylviere28 case – as well as displays of still pictures and unclassified clips of film on the internet. Here, in principle, anything which is not suppressed can be depicted, but the reasonable person should have the option to avoid seeing material in the restricted category if they wish.
So an art gallery would have to make clear that some of what was being exhibited may be offensive and describe the nature of the offence before people enter the exhibition. Again the fundamental premise is giving people the choice both to see what they wish, and to avoid seeing what they do not wish, to see. Restricted material will be available for sale in licensed sex shops. R 16 videos would only be available from such shops. They will operate on the principle that restricted material may not be displayed to the public, will have to have warning signs at the entrance and will not admit those below the age of sixteen.
If law is to play any meaningful part in the regulation of material that may be offensive because of its sexual nature, a radical overhaul is required. The symptoms of a sick system have been evident for some time, from the bribery of Scotland Yard's Obscene Publications Squad in the 1970s29 to the irrelevant disrepair of the current system. That obscenity law in Great Britain has survived for so long in its current form would seem to owe more to political factors or apathetic attitudes than rational legal arguments in its favour.
I believe that the reforms outlined above would lead to a system where freedom of expression is maximised, while retaining some choice as to what people see or allow their children to see in terms of material of a sexual nature. Obviously what is outlined above is a general system and may prove difficult to word satisfactorily in a statute, but the emphasis should be on the balancing of competing human rights, not Puritanism. After all, what better backdrop for reform could there be than the rights-based legal environment in which all law must now be considered?