Freedom of Expression: part 2

In cases of both import and export, what is obscene is a matter for the customs officers, in the first place, and then for a jury to decide; it is not the same as the meaning of obscene under the Obscene Publications Act 1959.


We noted in Part 1 last month that it is an offence to import indecent or obscene prints, paintings, photographs, books, cards, lithographs or other engravings, or any other indecent or obscene articles: section 42 of the Customs Consolidation Act 1876, as amended. In 1981 the House of Lords confirmed that this offence will still be committed by the importation into the UK of material from an EEC country (where the article is not illegal), despite the fact that Articles 30 and 36 of the EEC Treaty require us to allow such imports. Customs and Excise officers have very wide powers to search, seize and prosecute material which they consider to be obscene; the penalties include forfeiture of the material, a heavy fine and up to 2 years imprisonment, or all three.

Similar restrictions and powers apply to the export of obscene material.

In cases of both import and export, what is obscene is a matter for the customs officers, in the first place, and then for a jury to decide; it is not the same as the meaning of obscene under the Obscene Publications Act 1959 (see below). These laws may appear at first blush to be somewhat arbitrary, obscure and odd. They are nevertheless used and thousands of items are seized and forfeited through those powers every year, exercised with vigilance and industry by customs officers. Artworks therefore run the risk of being caught by this net and Artlaw has experienced a small but significant number in recent years.

Display in a London Street

‘Every person who sells or distributes or offers for sale or distribution, or exhibits to public view, any profane book, paper, print, drawing, painting or representation, in any London thoroughfare or public place, shall be guilty of an offence’ S. 54 (10) of the Metropolitan Police Act 1839.

There is no legal authority defining profane in this context; it probably means obscene, but not obscene within the meaning of the Obscene Publications Act 1959 (see below). Police can arrest anyone suspected of committing this offence; the maximum penalty on conviction is a £50 fine.

Obscene Publications or Possessions
Any person who, whether for gain or not, publishes an obscene article, shall be guilty of an offence: S.2. Obscene Publications Act 1959. The maximum penalties on conviction include forfeiture of the articles, a heavy fine on imprisonment up to three years; pornographic material usually attracts an immediate term of imprisonment.

‘Publishes’ includes distributing, circulating, selling, letting on hire, or offering for sale or for letting on hire. This definition does not specifically include exhibiting in public, and probably does not therefore apply to exhibiting in public for sale. Thus an exhibitor would not be caught by this offence. However, there is another offence which does catch exhibitors and owners: any person who has an obscene article for publication for gain is guilty of an offence: 51 (1) of the Obscene Publications Act 1964. The maximum penalties are the same as for publication.

‘Has’ in this context includes persons who have an obscene article in their ownership, possession or control with a view to ‘publication’ (within the meaning of Section 2, above). Through this Act, all artists, collectors and exhibitors could well be put into the frame – if the article appears to be ‘obscene’.

‘Obscene’: an article is obscene if its effect is, if taken as a whole, such as to tend to 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.

‘Deprave and Corrupt’ refers to the effect on the mind, including the emotions; and it is not necessary that any physical or overt sexual activity should result e.g. the fact that the consumer of the material is already in a state of depravity and corruption and incapable of being further corrupted, is no defence. It is the ‘tendency’ to deprave and corrupt that is at issue. Cases are brought often after having used as the yard-stick the likely effect on children or the ‘naive’ e.g. could (not would) their moral standards or behaviour be adversely affected if they saw the material: note – if/they saw it, rather than because they saw it. And so the real issue becomes ‘persons who are likely to read, see or hear the matter’.

Prosecutions do not require scores of witnesses swearing on oath that they were in fact depraved and corrupted; it is all hypothetical. After the police have made their own judgements of the material and have commenced proceedings, it is left to the jury to decide after then hearing the defence and the judge.

Obscenity and its tendency to deprave and corrupt are not limited to matters of sex; drug taking and portrayals of violence have been successfully prosecuted.

Artistic Defence
All is, however, not lost. A person shall not be convicted of an offence (under the 1959 or 1964 Acts) and an order of forfeiture shall not be made, if it is proved that the publication of the article in question is justified as being for the public good on the ground that it is in the interests’ of science, literature, art or learning, or of other objects of general concern: Section 4 of the 1959 Act.

The first point to note is that this section affords a defence to a conviction i.e. it cannot prevent an arrest, seizure of articles and a prosecution. If the police do not consider it to be ‘art’, they may proceed and cause much difficulty for the suspect who then has to prove (in court) to a jury’s satisfaction that the article is ‘art’. (Hence, the lengthy and costly trials of Lady Chatterly’s and Last Exit’s publishers, for example.) So, what is ‘art’ in this curious context?

In order to establish that it is in the interests of ‘art’, the defendant is allowed to call evidence of experts as to the artistic merits of the piece. The prosecutor is then allowed to call experts to negate what has been said to establish the artistic ground. Although these rules put artworks under an ignominious and invidious microscope, some comfort can be derived from the fact that the jury decides the issue, after guidance from the judge, at the end of the day.

Unlike obscenity and the other laws discussed, which are criminal matters where legal aid is available to defendants, defamation is a civil matter where legal aid is not available to defend an action. There can, therefore, be even greater nuisance value in the threat of a defamation action.

Defamation is slander or libel: slander is the use of spoken words or gestures to a third party which ‘de-fame’ the victim i.e. lower his reputation; libel is a slander expressed in printing, writing, signs or pictures – and thus includes artworks.

The defamed person can bring a civil action in the High Court which is tried by a judge and jury. If the case is proved to the jury’s satisfaction, the judge can order the defendant to pay damages (monetary compensation) to the plaintiff for loss of reputation. Although the amount of damages will depend on the nature of the loss of reputation (i.e. the effect of the content of the defamatory artwork) and on the extent of the exposure, the greatest burden for unsuccessful defendants is normally the court’s order for them to pay the plaintiffs costs – as well as having to pay their own. These sums can far outstrip the amount of damages awarded.

There are defences available, including truth, justification and fair comment, but just like obscenity, it is for the defendant to prove these grounds to the jury’s satisfaction after the plaintiffs case has been presented; cost, again.

Let us now turn to the issue of those who would seek to use the laws we have now examined, and their ‘nuisance value’ in achieving censorship of exhibitions.

There is clearly nothing to prevent artists in their studios making and keeping any artwork there; (unless, of course, the making process itself involves the commission of a crime, which is not the issue). Problems arise with any next move: sending through the post, importing and exporting; exhibiting (even in the narrowest sense, to one other person); publishing; offering for sale and so on. Each of these further processes usually involves liaison with another person or organisation, and it is their judgement and opinions which leave room for censorship in this context. Here are some true stories.

A printmaker made an edition in which the images appeared to be abstractions of the human form. The gallery director was familiar with the work and had been content to select and hang it in a group show until pressure was brought to bear by one of the gallery’s funding bodies. It was said by an influential member of the funding body that the work was obscene: in his view the work portrayed certain anatomical connections of the human form which he regarded as being sexual and therefore obscene. The work was unilaterally and summarily withdrawn by the organisers – not under direct threat of prosecution, but through the application of pressure that funds might be withdrawn in any event.

At an international print show in this country, a work considered by public officials supporting the event to be obscene because it portrayed (amongst other things) the vagina of a half-naked woman, was removed from public view, put in a separate locked room and made available to adults only on request.

An exhibition of photographs in a local authority-funded gallery, dealing with facets of local dockland life earlier in the century, included a series of street scenes of women apparently soliciting for prostitution. One shot showed a discussion on the street between a man and a woman in this red light district. Objection was taken by the local authority because the man in the shot had since become a local councillor and was now apparently embarrassed by this defamatory publication. The work was removed. And a similar case occurred in a different exhibition of photographs when a shot of a lorry breaking a picket line was said to have embarrassed the driver of the lorry, who had since become a local labour councillor. The gallery was local authority funded and council elections were imminent.

These examples serve to illustrate the nature of censorship as it exists in practice. It is not so much the bringing of legal proceedings or even the threat of them, but more often the exercise of influence or control, directly and indirectly, on exhibition venues or organisers, which causes works to be censored from public viewing. Though, of course, the nature of the offence is usually worded in legal language to give credibility to the insistence on removal or withdrawal. Sometimes this will be fully justified, but it does raise serious questions about influence and control of public exhibitions.

There are those who seek to challenge this facet of the administration of public exhibitions and also its relationship with the hoary old chestnut of the exercise of aesthetic judgement in the selection of works, for public exhibition. Naturally, choices must always be made, and only the selectors can know what influences them. The challenge is not against that choice, but for accountability; censorship (in the sense of choice) by non-selection is an important and valuable freedom which can only be maintained and respected if it is open to challenge and debate: non-selection by censorship can only be exposed and dealt with if it is likewise challenged. As public and corporate sponsorship of exhibitions, commissions, sales and arts organisations increasingly replaces private patronage, so increases the real possibility of public and corporate influence on the selection of work for public consumption. Whilst that possibility has always been a natural and understandable aspect of the art market-place, it is the method and manner of its current exercise that is the subject of challenge. It is that challenge, arguably a healthy one, which is at issue and thankfully, we are all free to give it consideration.

© Henry Lydiate 1983

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.