In January of 2019, the Crown Prosecution Service (CPS) of England and Wales issued new guidelines on the Obscene Publications Act (the Act) that many are calling a victory for free speech and privacy. The guidelines relate specifically to whether certain pornographic videos and images may be classified as obscene and thus punishable under the Act.
The Act was introduced in 1959 and was designed to protect the public from viewing certain material which, when viewed as a whole, could “deprave or corrupt” the morals of those likely to “read, see or hear the matter contained or embodied in it”. Under the Act, anyone distributing and owning videos or images classified as obscene could be criminally prosecuted.
Prior to releasing the new guidelines, the CPS previously prosecuted cases of obscenity by reference to a list, whereby acts such as torture, perversion, and other types of explicit conduct were classified as obscene. While the majority of the enumerated acts were legal to perform by consenting adults in private, it was illegal under the Act to depict such acts in images or videos. Further, any possession or distribution of pornographic materials containing these themes were susceptible to criminal charges and potential jail time.
The list included illegal sex acts commonly considered objectively harmful and morally reprehensible - such as bestiality and those involving children - but it also listed practices that many argued were not harmful among willing and consenting adults, such as sadomasochism, bondage, and spanking. A number of activist groups who have been lobbying for changes to the Act have consistently stated that this list duly unfair to people who have any form of alternative sexual orientation or preferences.
With the issuance of the new guidelines, the CPS has retired this list and removed all specific examples of obscene acts from its steerage. The CPS recognized that because jurors, jurists, and the public at large have taken an increasingly liberal view on the type of content that may deprave or corrupt morals, this list of forbidden acts became increasingly difficult to apply in practice. Further, the CPS provided in a statement that “It is not for the CPS to decide what is considered good taste or objectionable”.
Replacing the list is a series of tests, designed after a period of public consultation, that the CPS will use to establish if videos or images are obscene. Instead of merely listing forbidden acts, the new test provides that possessing, producing, or distributing pornographic material is unlikely to be prosecuted as obscene if:
It is consensual (focusing on full and freely exercised consent, and also where the provision of consent is made clear where such consent may not be easily determined form the material itself); and
No serious harm is caused, whether physical or otherwise; and
It is not otherwise inextricably liked with other criminality (so as to encourage emulation or fuelling interest or normalisation of criminality); and
The likely audience is not under 18 or otherwise vulnerable.
It should be noted that these categories are neither closed nor determinative, as the CPS has stated that “publications which show or depict the infliction of serious harm may be considered to be an obscene publication because they show criminal assault notwithstanding the consent of the victim”. This also is said to extend to dismemberment and graphic mutilation, which includes asphyxiation causing unconsciousness, as one cannot freely consent to such bodily assault.
This shift to England and Wales’ obscenity law to a more objective harm-based approach to prosecutions closely mirrors the current state of obscenity law in Canada. For many years, the community standards of tolerance test as articulated in the Supreme Court in R v Butler remained the litmus test for what Canadian’s could tolerate others viewing without corrupting or depraving morals. This test was later replaced by a solely harm-based approach as demonstrated in R v Labaye, wherein the Supreme Court made a number of criticisms against the community standard of tolerance framework, holding that what appeared to be a superficial application of objectivity became an articulation of the subjective tastes and tolerance of individual jurors and jurists, and failed to account for the pluralistic views within Canada’s multi-cultural and political society. The community standards test was retired and replaced by a solely harm-based test wherein prosecution could only occur in light of social scientific evidence linking harm to the conduct at issue, which appears to be aligned with the steps being taken in England and Wales to provide a clearer test for obscenity. The laws of both jurisdictions provide both that the censorship of obscene material based on moral corruptibility should be grounded in real notions of harm or risk of harm, and that clear guidelines for obscenity must be in place to codify exactly what types of sexual conduct is considered offside of formally recognized moral values.
The relaxing of these rules and a move towards a more objective harm-based approach is a formal recognition that a single societal standard of tolerance regarding morally corrupting conduct is unworkable, and that the focus on prosecuting obscenity should instead be focused on psychical and psychological harm to both those who are exposed to the alleged obscene material and those engaging in the targeted acts. A list forbidding explicit acts beyond the mainstream without proof of real harms involved should not be subject to state censorship, and these new tests will undoubtedly allow the CPS to properly examine cases on their merits in order to fulfil the mandate of the Act.
R v Butler,  1 SCR 452
R v Labaye,  3 SCR 728
The Obscene Publication Act 1959, 1959 c. 66
Crown Prosecution Service, Legal Guidance Re: Obscene Publications Act 1959, online: < https://www.cps.gov.uk/legal-guidance/obscene-publications>