Obscene Publications Acts

ENACTED: 1857, 1959, and 1964

PLACE: United Kingdom (national)

SIGNIFICANCE: These acts were among the major statutes in Great Britain aimed at controlling pornography and obscenity

One of the earliest obscenity statutes in British law, the Obscene Publications Act of 1857, is sometimes called Lord Campbell’s Act, after the lord chief justice who proposed it in the House of Lords. Campbell’s bill aimed to curb London’s pornography trade. It did not create a new offense; instead, it gave authorities holding valid search warrants the power to search private premises for obscene materials and to seize and destroy what they found. Despite some opposition to the bill because of the seemingly arbitrary power to censor that it would give to magistrates, Parliament passed the bill in 1857.

The crime of obscene libel had originally developed in English common law to restrict written materials whose religious or political content was objectionable because it was blasphemous, heretical, or seditious. Later, the concept was extended to include works whose sexual content was objectionable. In 1727, for example, the Queen's Bench Court convicted Edmund Curll of the common law offense of obscene libel for publishing Venus in the Cloister or the Nun in Her Smock, a book whose sexual content was considered objectionable.

The Obscene Publications Act of 1857 employed no precise definition of obscenity. In the 1868 case of Regina v. Hicklin, Lord Chief Justice Cockburn articulated a test of obscenity that remained the standard in British and American law for nearly a century. It defined as obscene any work that tended “to deprave and corrupt those whose minds are open to such immoral influences.” According to Cockburn, it was the effect of the materials and not the author’s intent that mattered.

The Obscene Publications Act of 1959 replaced the Hicklin test with a new statutory definition of obscenity: an “article” was regarded as obscene if its overall effect tended “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.” In practice, this definition—like the Hicklin test—was often disregarded. Real efforts to gauge the depraving and corrupting effects of allegedly obscene articles were rarely made.

The 1959 act eliminated the old common law offense of obscene libel and created the crime of publishing an obscene article or having it for the purpose of publication for gain. It also provided for the seizure by authorities of goods suspected of being obscene. One section of the act established a “public good defense,” whereby articles otherwise considered obscene (that is, that they tended to deprave and corrupt) would not be subject to criminal prosecution or seizure if their publication could be “justified as being for the public good” because of their scientific, literary, or artistic value.

The Obscene Publications Act of 1964 sought to close several “loopholes” found in the 1959 act. It created the offense of “having an obscene article for publication for sale.” It also broadened the definition of “article” so that photographic negatives were included. After the 1980s, prosecutions under the Obscene Publications Acts became rare, especially as the British media adapted to the rise of the internet and digital communication. Focus also shifted to content that was deemed extreme or non-consensual. However, the legislation remained relevant: the 2012 case of R v. Michael Peacock considered whether same-sex pornography could be considered obscene under the 1959 Act and found it could not. While the 1857 Act was repealed, the 1959 and 1964 Acts remained active though rarely enforced, and newer laws are used in their place.

Bibliography

Beresford, Sarah. “Obscene Performative Pornography: R v Peacock (2012) and the Legal Construction of Same-Sex and Gendered Identities in the United Kingdom.” Porn Studies, vol. 1, no. 4, Oct. 2014, pp. 378–390. Taylor & Francis Online, doi.org/10.1080/23268743.2014.958384. Accessed 3 May 2025.

Jackman, Myles. “Obscenity Trial: The Law Is Not Suitable for a Digital Age.” The Guardian, 6 Jan. 2012, www.theguardian.com/law/2012/jan/06/obscenity-trial-law-digital-age. Accessed 3 May 2025.

“Obscene Publications.” The Crown Prosecution Service, Jan. 2019, www.cps.gov.uk/legal-guidance/obscene-publications. Accessed 3 May 2025.