The right of freedom of expression is a fundamental right, which has not traditionallly been prescribed by law in the United Kingdom, but can be considered more of a moral right. However, the enactment of the Human Rights Act in 1998 incorporated the European Convention on Human Rights into UK law, Article 10 of which creates a right to freedom of expression. Article 10 (1) states "everyone has the rigth to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
" However, this right is qualified and not absoulte as Section (2) of Article 10 imposes a number of restrictions upon its exercise; " The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the reputation or rights if others.
" Two of these restrictions prescribed by law are the criminal offences Obscenity and Public Outrage, which abridge freedom of expression in order to protect indivuduals and in some case the public in general, agains harm to moral integrity and uphold standards of public behaviour as well as protecting religious sensibilities. The extent to which they constitute a restriction on freedom of expression and thus the freedom of the artist, however, is a contentious issue and will be considered in due course.
How far does the freedom of expression of the artist reach ? Where are its limits ? What are the criteria to limit this right? How to seperate pornography from art ? What is art ? What is obscene ? All these questions come into one's mind when contemplating about the intersection between the civil liberty of freedom of expression and the criminal offences that form the boundary of that liberty. Instinctively one can give the answer that everybody is free to do what he wants as long he doesn't harm anyone else.
The problem is, that here one can see "harm" on both sides: On the one hand side it possible, that harm may be caused to an individual or to the society as a whole through an obscene work of art. But on the other hand side one has to take into account that criminal offences which are too severe can entail a factual censorship in the sensible field of freedom of expression, one of the constituant freedoms to be granted in a democratic society.
And it has to be taken into account that in today's very diverse western societies it is difficult to say what is obscene and shocking and what is not. Artworks that may be regarded as shocking by an elderly woman may be regarded as even boring by someone it his twenties. The relativity of moral understandings has become apparent in the discussions around the "sensations" exhibition: this exhibition was very controversely discussed in the U. S. where it was shown in Brooklyn. In Berlin, Germany, it was regarded as revolutionary new art, but not as morally corrupting.
Does the UK Law constitute a just and fair balance between the harm caused by obscene works of arts and the harm caused by censorship entailed by the interdiction of certain works ? To find a due answer to the question whether the UK laws to obscenity and public outrage unduly hamper an artist's freedom of expression one first has to examine these provisions in a first part (II). Then one will have to evaluate these provisions in the light of the public liberty "freedom of expression" in a second part (III)
The legal provisions made by the UK law A. Concerning Obscenity (Statutory Offences) The law on obscenity aims at protecting those who come to it willingly, against moral harm, which the obscene work is said to threaten. It guards moral integrity or protects some public interest in maintaining moral standards in a way, which overrides personal freedoms. Consequently any expression that contravenes accepted standards of social morality is potentially subject to restrictions.
Such restrictions on in general peoples' and specifically the artists'freedom of expression is justified by the "harm" principle as developed by John Stuart Mills whereby expressive material may only be restricted/interferred with if it can be shown that it causes harm to others. 1 However, there are divergent views on what constitutes harm. Some attribute the narrower definition, limiting it to physical or psychological harm that is scientifically evaluable.
Others, instead of concentrating upon material harm are prepared to include moral and ideological harm within the definition, which is less easy to establish upon objective criteria since it is not always scientifically verifiable. Hart2, similar to Mills also favoured reliance upon personal harm and whereas these views are more individualistic, Devlin3, on the other hand believed that society needs a common moral core to retain its stability and therefore attacks on basic moral standards threaten and cause harm to society as a whole even if no individual suffered immediat and identifiable harm.
This essentially requires the law to enforce a wider range of moral demands. However, it is undesirable to indiscriminately criminalize all immoral conduct or expression, as the resulting interference with the freedom of expression would be extensive especially due to the uncertain scope of morality within a diverse society. It must be clarified, that the protection of morals is not purely a philosophically or politically advanced notion, as under Art 10 (2) of the ECHR, it is laid down as one of the justifications for interferences with freedom of expression .
This also recognises that the steps necessary for the protection of morals will depend upon the morality to which the country is commited and this the European Court of Human Rights will allow a margin of appreciation to states in deciding what moral standards they should enforce and by what means. One of the means adopted in Britain to enforce such morality is the Obscene Publications Act 1959, which makes it an offence to publish an obscene article.
Under Section 1 (1) an article shall be deemed obscene if its effect or th effect of one of the items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely in all the circumstances to hear or see the matter. This offence is a welcome liberalisation of the previsous offence of obcene libel whereby in order for an article to be consideres obscenely libellous it was sufficient that some part of the "matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall" as established by R v Hickin (1868).
Therefore not only was it possible to obtain a conviction by taking an isolated passage in a book out of its context and prove that it tended to deprave and corrupt, it was sufficient to prove that it would deprave and corrupt the most sexually nave person who may chance upon it. This the law was fairly wide and the tests laid down were easy to satisfy resulting in a great restriction upon the freedom of expression. However, Salmon LJ commented in R v Calder & Boyers (1968) "the Act od 59 was an Act to amend the law relating to the publication of obscene material" and it has certainly had a liberalising effect in many respects.