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Media Obscenity

media controlMedia Obscenity is an important thing to tackle as the effect could be huge. The aspect of media law which the author is intending to discuss in this article regards the law of Obscenity. It is a rather complex area of law in the Common Law jurisdiction (especially in the United Kingdom) but it is rather interesting in the way in which it draws a distinction between what is, and what is not obscene.

Media Obscenity in UK

The benchmark case that heavily contributed to the interpretation of the topic in the early stages of its enactment was in the 1868 case of R V Hicklin where Lord Chief Justice Cockburn held:

I think that the test for obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those minds are open to such immoral influences, and into whose hands a publication of this sort may fall.

The relevant part of the judgment is firstly, what is the effect of the published material and secondly, whether or not they are likely to read, hear or view it. Following this judgment, authors began to demand for modern legislation on the matter and as a result, The Obscene Publications Act 1959 was passed. The complete definition of the Act can be found under Section 1 where it is provided:

For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises of two or more distinct items) the effect of any of those items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, in all the circumstances, to read, see or hear the matter contained or embodied in it.

Interpretations of what was meant with the statutory definitions were complicated over time but once again emphasis had been put on the effect of the publication in the case of R V Knuller.

Focusing more on the interpretation of the word effect of the publication a defense to the crime of obscenity was developed. As a result, if the effect of the publication of the obscene material had the effect of arousing a feeling of disgust, it may be deemed as not being obscene due to the fact that rather than encouraging the public to indulge in “immoral acts”, the material tends to discourage the audience from conducting the aforementioned. This principle later came to be known as the aversion defense.

…(…) it was said that they had an adverse effect and that, far from tempting those who had not experienced the acts to take part in them, they would put off those who might be tempted so to conduct themselves (…)… – R V Anderson [1971]

The important aspect of this principle is that significant consideration is put on the overall impact of the publication as well as its purpose and context of it.

The relevant articles under Federal Law 15 of 1980 are Article 71, 72, and 73 which provides that It is prohibited to publish any material which includes instigation or offense against Islam or the regime in the country or to damage the higher interests of the State or the principal regulations of the society.

Under Article 72, It is prohibited to publish any opinions which include a violation to public morals or offense to youth, or which call or promote the espousal of destructive principles.

And under Article 73 It is prohibited to publish any matter abets to the commitment of crimes or incites hate or spreads dissension between the society members

Consider purpose of the publication

It would be awkward to ask the U.A.E. government to change their federal law completely as it would obviously clash with sharia law and what would work for a society in the west does not necessarily mean that it would work in the middle-east. Both societies are building upon different principles and foundations and based upon. However, it would be interesting if the courts would be inclined to take a more sophisticated approach when deciding these types of matters. Article 72 vaguely deals with this as it briefly provides that should the material promote the espousal of destructive principles. I think that whatever the standard for “destructive principles” may be, the result would be more just and righteous if emphasis would be put on the effect of the publication as well as its purpose.

As such, I consider it to have a greater advantage to media law as a whole if more thought would be put behind purpose of the publication before anything else.

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