Domestic Application of Art 10

Key points

English Law had many areas aimed at preventing the corruption or depravation of morals. These terms are defined in the Obscene Publications Act 1959 - ‘deprave’ to debase or pervert the morals, ‘corrupt’ as meaning to render morally unsound or rotten. The Theatres Act 1968 and Broadcasting Act 1990 extended this into their areas. The Obscene Publications Act 1964 also extended some of these rules including rules on gains from obscene publications.  

Shaw v DPP

D published a directory containing the details of prostitutes in London. This was conspiracy to corrupt public morals as he was promoting the immoral practice. 

R v Gibson and Sylveire

Using freeze dried human foetuses as earrings as a stunt was held to constitute the offence of outraging public decency. 

Acts of Parliament cover the law of obscenity

Obscene Publications Act 1959,1964, Theatre Act 1968, Broadcast Act 1990 

The test for what counts as ‘obscene’

As one that has the effect of tending to deprave and corrupt persons likely to read see or hear it. R v Hicklin definition – whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hand a publication of this kind may fall 

What does the term ‘publication’ include

S1 (2) defines it as any description og article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures. 

What defences are there under the OPAs

If it can be proved the item is for the public good or is advancing society in terms of science, art, literature, learning, or any other object of general interest 

Peacock (2012)

Michael Peacock, a male escort, was charged with selling hardcore gay pornography that the police believed could "deprave or corrupt" the viewer. He was acquitted by a jury in January 2012, marking a significant victory for free speech and a challenge to the outdated obscenity laws. The case highlighted the need for modernizing obscenity law to reflect contemporary moral standards and public values.   

What does the offence of outraging public decency cover

This offence can be used even where there is no clear statutory authority to protect public morals. This was used in DPP v Shaw. 

The Protection from Harassment Act 1997

Introduced to tackle stalking. There are two criminal offences – Pursuing a course of conduct amounting to harassment, A more serious offence where the conduct puts the victim in fear of violence. Harassing a person includes causing distress. A course of conduct which can include speech must normally involve conduct on at least two occasions. Civil courts may also have a role in awarding injunctions and damages in harassment cases. Trian Long Hong v XYZ - Can work against paparazzi

Malicious Communications Act 1988/2003

AR= Sends letter, electronic communication or article that is indecent or grossly offensive; threatening; or false

MR= Purpose is to cause offence/distress/anxiety

Grossly offensive not defined - context key

DPP v Bussetti - Communications must be grossly offensive, Chambers v DPP - act doesn’t police bad jokes

Obscenity law

English Law had many areas aimed at preventing the corruption or depravation of morals. These terms are defined in the Obscene Publications Act 1959 - ‘deprave’ to debase or pervert the morals, ‘corrupt’ as meaning to render morally unsound or rotten. The Theatres Act 1968 and Broadcasting Act 1990 extended this into their areas. The Obscene Publications Act 1964 also extended some of these rules including rules on gains from obscene publications.  

The offence of outraging public decency

This offence can be used even where there is no clear statutory authority to protect public morals. This was used in DPP v Shaw. 

Defamation elements

1. Has there been a defamatory statement 

2. Are there references to the claimant 

3. Has there been publications or communications to a third party 

4. Are there any defenses 

Sim v Strech

The statement is defamatory if it lowers the claimants reputation in the minds of right minded members of society generally.

Lachaux v Independent Print

C lived in Dubai but there were articles written about his divorce that made him appear controlling and manipulative. The principle was that actual serious reputational harm must be shown to have happened or likely to happen because of the publication. Not just question the words being capable of damaging C’s reputation. 

Monroe v Hopkins

C claimed against Hopkins for saying she was going to deface a war memorial as she confused her with someone else she was arguing with over twitter. Here C did not have to prove that reputational harm had been done as it was so obvious that falsely accusing someone of defacing war memorials was obviously harmful to their reputation. Monroe won 28k + 300k in costs. 

Cosmos v BBC

BBC showed videos of holiday camps owned by the Cosmos company but played music from ‘Escape from Colditz’ a show about escaping from Nazi POW camps which gave a very poor impression. This was defamation and set the principle that defamation can be implied. 

Berkoff v Burchill

C claimed against a film critic for describing him as hideous. The claimant won as the ridicule could cause him to miss out on work or for people to avoid him as an actor. This is an example that reputation must be impacted not just feeling.  

Charleston v NGN

D had made an article about fake pornography and included a picture of two neighbors actors superimposed on naked bodies. C claimed this would affect their reputation as people might think it was real. However, the article made it clear it wasn’t real, and no one in their right mind would think it was.

Eastwood v Holmes

It needs to be about the claimant. Statements like ‘all lawyers are thieves’ are not clear enough to be defamation.  

Bunt v Tilley

C was being bullied on a chat room and sued three internet providers for hosting the chat. The operator did not have control, so was not liable.  

Chase v NGN

There is the defense that what was published was true. The general gist is what needs to be true it does not need to get every detail correct

DA 2013 S3

Can express your opinion, but it has to be an opinion based off of something true it is not a blanket defense. 

S4 of Defamation Act 2013

D is able to show (a) the statement was a statement on a matter of public interest defence (b) D reasonably believed that publishing was it was in the public interest 

Absolute Privilege

Things said in parliament – Official communication – Judicial proceedings – Lawyer to client – Official communication (world leaders) - statements between spouses  

Qualified Privilege

This is where defamation is allowed due to the context. For example, when an employer gives an employee a reference, they are allowed to write that they were bad at their job if they were bad at their job. Another is academic papers which are allowed to publish their studies free from defamation even if their findings aren't liked. ABC v CC West Yorkshire – The police put comments on their database to a social worker about a mother who was alleged to be sexually abusing their child. The mother sued for defamation, but this was ruled as an example of a qualified right to say this.  

Section 2 (1) - Offer to make amends

This can be seen in two forms either publishing an apology and admitting it was untrue. They can also pay compensation as an apology. For example the Daily Star had to print an apology to the parents of Madeleine McCann for accusing them several times in several articles of being responsible for their daughter's disappearance.

Damages  

As compensation for the defamation, you can be awarded damages in the form of compensation money or an injunction to prevent further publication.