H418/03 - Obscenity, defamation and harassment

Testing an expression restriction

Article 10 protects holding opinions and receiving and sharing information and ideas, including expression which people find offensive.

It is a qualified right. Article 10(2) permits a restriction only if it is prescribed by law, pursues one of its listed legitimate aims, and is necessary in a democratic society. The response must be proportionate to a pressing social need. Protection of morals, reputation and others' rights can justify restrictions, but naming an aim is only the beginning of the analysis. A vague law, an excessively broad injunction or an unnecessarily severe response can fail even when the underlying concern is real.

In Handyside v United Kingdom (1976), the publisher of The Little Red Schoolbook challenged his obscenity conviction and the seizure of copies. The ECtHR upheld the interference in the particular circumstances, including the young intended audience and the protection of morals. It recognised national authorities' margin of appreciation, or room for judgement, where European moral standards differed. It also emphasised protection for disturbing or unpopular expression and retained European supervision. The decision did not make all offensive material unlawful or give states unlimited censorship power.

Keep the domestic wrong and the rights question separate. A claim may fail because its legal elements are missing. If they are established, the court must still apply the applicable law consistently with expression rights. Obscenity concerns an article's tendency and audience; defamation concerns reputation; harassment concerns a course of conduct. One label does not prove the others.

An original example: a sharp editorial criticising a minister's policy is political expression. A reader's offence supplies no automatic legal ground to suppress it. Repeated messages threatening an individual at home present a different interference with that individual's rights. The same Article 10 framework can recognise the different weight and harm of those acts.

Obscene publications and public good

The Obscene Publications Act 1959 makes a particular harmful tendency, rather than simple bad taste, central to obscenity.

Section 1 asks whether an article, or a distinct item within it, taken as a whole, tends to deprave and corrupt the people likely to read, see or hear it, considering all the circumstances. The likely audience matters. The prosecution cannot simply extract one shocking sentence and ignore its context. Conversely, adding a respectable title does not protect a distinct obscene item within a larger publication.

Section 2 covers publishing an obscene article, whether or not for gain, and having one for publication for gain. Publication includes distribution, sale, giving or lending, showing relevant material and specified transmission of stored data. Merely possessing an article for personal use is not that publication offence. The prosecution must prove the offence beyond reasonable doubt; shock or a prosecutor's personal dislike is not a substitute for the statutory tendency.

Section 4 supplies a public-good defence. Publication can be justified in the interests of science, literature, art, learning or other objects of general concern; films and soundtracks have a specifically worded branch of the defence. Expert evidence can help establish literary, artistic, scientific or other relevant merit. Calling a work educational does not automatically prove the defence. Its claimed contribution and actual publication context need examination.

Original application: a clinical teaching work includes explicit descriptions necessary to explain treatment to trained adults. The audience and work as a whole may mean there is no tendency to deprave and corrupt. Even if the threshold is met, learning or science may support public good. Change the distribution to material marketed to young children for sensational effect, with no credible educational purpose: the audience and justification change substantially. Neither result follows just from the presence of sexual content.

Article 10 makes the proportionality of state action important too. Protecting morals is permitted, but Handyside supplies a contextual example, not a rule that today's authorities can forbid any work that would have troubled readers in 1976.

Defamation and serious harm

Defamation protects reputation against defamatory statements communicated to someone other than the claimant.

The statement must refer to the claimant and carry a defamatory meaning, for example an accusation of dishonesty that would lower the person's reputation in others' estimation. Identification can occur through the circumstances even without a name. Libel is generally defamation in permanent form, such as a printed article; slander is generally transient speech. Slander normally also requires proof of special damage, subject to established exceptions such as certain criminal or professional imputations. Both must meet the modern serious-harm requirement.

Section 1 of the Defamation Act 2013 requires publication to have caused or be likely to cause serious harm to reputation. For a body trading for profit, this must amount to actual or likely serious financial loss. Hurt feelings alone do not prove reputational harm. The audience, their belief in the allegation, its gravity and consequences matter; there is no universal minimum number of readers.

In Lachaux v Independent Print (2019), newspaper allegations about a man's conduct produced a dispute over section 1. The Supreme Court held that serious harm is a factual requirement, beyond simply finding that words have a defamatory meaning. Harm can be established by evidence and proper inference from the circumstances, rather than requiring each reader to testify. The serious allegations and circumstances of publication supported the finding. The case does not require a lost contract in every individual's claim.