A failed attempt to change the definition of obscenity to make it easier to prosecute
18th December 1996
House of Lords: 18th December 1996
My Lords, I am grateful to the noble Earl, Lord Halsbury, for introducing this Bill. I am also grateful to the noble Earl, Lord Longford, for his reminder of the history behind this long-running subject; and the right reverend Prelate gave us a
great deal to think about in all that he said. I go a long way with him on a number of points but not on everything.
Pornography is a subject which some people wish to encourage and others to discourage. My belief is that it should be discouraged. Psychotherapists suggest that it affects a number of people in four different ongoing stages. First, an
individual may become addicted to pornography; secondly, the addiction may escalate so that the person needs harder material; thirdly, the individual becomes desensitised, which appears to mean that he can no longer tell the difference between
what is right and what is wrong in his actions; and, finally, he needs to act out his fantasies--it is usually men--on real women, possibly passing over the barrier into criminal practice.
Perhaps I may illustrate this with the example of a certain Mr. Ted Bundy, an American serial killer, who admitted murdering more than two dozen women. He was put to death in America in January 1989. He explained how repeated exposure to
pornographic and violent material led to desensitisation to the point where he could brutally murder women and children. He explained how he had started off using soft pornography as a young teenager, moved on to harder material, and then more
extreme pornography until that could not satisfy his sexual desires. He then started to act out what he saw in pornography in real life and committed a serious sexual assault. In a final interview just before his execution he said:
"Listen, I'm no social scientist and I haven't done a survey ... but I have lived in prison for a long time now. And I've met a lot of men who were motivated to commit violence just like me. And without exception every one of them was
deeply involved in pornography--without question, without exception--deeply influenced and consumed by an addiction to pornography".
The current test under the present law is, as several noble Lords have said, whether it tends to deprave and corrupt persons likely to read it. Over the years I have heard a number of people say that a smart defence lawyer will butter up the
jury, tell them what mature and sensible people they are and then ask them, "Were you depraved and corrupted by what you have seen or what you have read? Of course you were not". It takes a very brave and bold juryman to say,
"Yes, sir, I was depraved and corrupted by what I saw", because that will be seen as a sign of weakness. The test has not worked for years. Prosecutors are finding themselves in more and more difficult situations and prosecutions are
I believe that the present law is bad and ineffective. Therefore, there are only two options left. One is to abolish it and the other is to change it. I am certain that the country does not want to see the Obscene Publications Act abolished.
Therefore, the only option is to change it. The right reverend Prelate has asked for discussion. This has been discussed up and down the country for years. I fully agree that a change in the law is extremely difficult. What is the right course
The present Bill gives a twofold test, which is one way to tackle the problem. First, there is the content of the material and, secondly, whether it is grossly offensive to a reasonable man. I can certainly envisage quite a number of acts which
fall foul of the content test but which the reasonable man would not consider to be grossly offensive. I do not believe it would be grossly offensive to see someone taking a shower or to watch a person painting someone who was wearing no
clothes. I do not see any problem in that. When I first heard a discussion of the topic the police were arguing for a list of items that should be proscribed. While I accept the view that the noble Earl, Lord Halsbury, gave that that would be
bound to lead to exceptions, I personally would probably prefer that. However, the important thing is for us to attempt some change in this extremely difficult field and see whether it works. I would greatly prefer the Bill, and therefore
support it, rather than continue with the law as it stands.
I conclude by referring to the 1990 Home Office study on this subject. It is the duty of Parliament to protect the public from the risks and dangers of obscenity just as Parliament is taking action currently to protect people under the Firearms
(Amendment) Bill. I shall not pass any judgment on that or discuss it at the moment, but it illustrates the fact that Parliament has a duty to act. Perhaps I may read the final paragraph of the Home Office study on pornography. It states:
"At the end of the day, it is difficult to believe that a society can really afford to embrace pornography with welcoming arms since this may serve to legitimise those attitudes which pornography itself may reinforce. The question must
be considered to be wider than just prohibition or other forms of control alone, but how to promote those attitudes and values which undermine pornography's potential influence".
The first step in dealing with the problem is for Parliament to pass legislation that will be effective in endorsing what the public requires and in prohibiting what the public considers to be grossly offensive. The second stage is the
promotion of positive attitudes and values around the country. We discussed that issue last week in our debate on the role of the family. I believe that there is a job here for the media. If I had had the fortitude of the right reverend Prelate
the Bishop of Bristol, who has spoken in all three debates this afternoon, I should have mentioned that point earlier. Turning to the two right reverend Prelates who are present, perhaps I may say that there is a role here for the Church also,
as well as for educators and the media, in promoting those positive attitudes and values which can undermine the potential influence of pornography.
Having said that, I believe that the ball must start here in Parliament, which must provide a law that is enforceable. For that reason, I support the Bill, even if we decide to amend it in Committee. Lord Ashbourne:
My Lords, I shall not detain your Lordships long, but I wish to start by thanking the noble Earl, Lord Halsbury, for introducing this Bill. We have known for many years that the Obscene Publications Act 1959 has been causing concern among law
enforcement agencies, so I pay tribute to the noble Earl for introducing this Bill to amend the current outdated test of a tendency "to deprave and corrupt" with a more readily understandable and objective test. This should make it
easier to convict those producing or distributing some of the worst types of pornography, which are not being judged obscene under the current law. I also commend the work that he did over the summer by chairing the working group of the
All-Party Parliamentary Family and Child Protection Group.
I am concerned about the media portrayal of children, women and men and the sexual relationship. I believe that the sexual relationship between a man and a woman was given by God for pleasure and for strengthening that relationship. So often
the portrayal of sexual relationships in pornography seems to have the opposite effect. I feel concerned about the sort of relationships and treatment of women, in particular, that we are promoting by allowing some of the more extreme material
to be judged as legally available.
I am sure that those members of the general public questioned earlier in the year in the survey commissioned by the All-Party Parliamentary Family and Child Protection Group will also be supporting the noble Earl, Lord Halsbury, tonight. When
asked if they believed that the use of pornography is harmless and has no serious effect on those who have a taste for it, 60 per cent. disagreed. This House has the privilege tonight of sending a signal to society that this sort of material is
I congratulate the noble Earl, Lord Halsbury, on ensuring that the important subject of violence is not left out of this Bill by its inclusion in the list and I am sure that that will be appreciated by many people around the country. It surely
follows logically from all the initiatives that are going on to t
"mutilation or torture of, or other acts of gross violence towards, humans or animals",
should be regarded as obscene, if the violence is portrayed,
"in a manner which a reasonable person would regard as grossly offensive".
Last week, the Director of the British Board of Film Classification said that the board is doing all that it can to deal with violence and that the current content of films stems from the Hollywood culture of violence. I hope this House will
say tonight that enough is enough.
We have heard too much recently about child pornography and the Internet. In strengthening the law on obscenity in this Bill, it will be easier to convict in cases where violent and/or pornographic material is available on the Internet. I am
pleased to note that this Bill will deal with child pornography when it is in the form of sexually explicit stories, which, I understand, can be obtained on the Internet also.
This Bill comes at a very important time, and I urge Members of this House from all sides to support the noble Earl in bringing in a much-needed reform. Lord McIntosh of Haringey:
My Lords, when speaking about a Private Member's Bill, as always I preface my remarks by saying that in this matter I speak for myself, not for my party. Indeed, I expect that there will be as wide a range of views on this issue in my party as
there is in all parties and among those with no party affiliation. I have immediate evidence of that from the views of my noble friend Lord Longford, with whose views, like, I am afraid, the views of a number of noble Lords who have already
spoken, I disagree. However, I assure your Lordships that the fact that I come to a different conclusion from some of those who have spoken does not mean that I treat the matter any less seriously than they do. It is incumbent on all of us to
look at the present state of the law and to consider seriously whether it is defective in any way either because it is too restrictive or not sufficiently restrictive, to consider the alternative solutions proposed by the noble Earl in his Bill
and to look at a realistic way forward to achieve the objectives that all of us believe are desirable.
I am at one with a number of noble Lords who have spoken in agreeing that the Obscene Publications Act 1959 does not work as originally intended. Many of those who have to implement that Act have come to that conclusion, and it is difficult to
dissent from it. The particular phrase used in the 1959 Act, which was extended in the 1964 Act, is "a tendency to deprave and corrupt". That phrase was not new in 1959. It first featured in our law in 1868. The noble Earl, Lord
Halsbury, made the important point that there was a difference between that and being shocked and disgusted. I believe that Mr. Justice Stable in the Philanderer case in 1956 was the first to make that point strongly to the jury.
One can agree that it is very difficult to persuade juries that they themselves have been depraved and corrupted by the material that is before the courts. In 1962 in Clayton v. Halsey it was ruled, and became law, that no amount of exposure to
pornography could corrupt a policeman. When the chairman of the Arts Council established a working party on the operation of the Act in 1968-69--which, incidentally, came to the unanimous view that the law was too restrictive--one of the people
questioned was the then Suffragan Bishop of Woolwich, now the right reverend Prelate the Bishop of Liverpool. He was the only person that the working party could find who said that he had been depraved by reading or seeing pornography. Quite
rightly, they did not believe him. All of us who know him know that that is not true.
The difficulty about the 1959 law is that it makes it a punishable offence to induce things that are not in themselves criminal. There is an alternative to the obscenity rule and that is the indecency rule. That is important for the
transmission under the Post Offices Act of material which the noble Earl might well consider to be obscene. The point of raising the question of indecency is not because that matter features in the Bill but that it raises criteria that are
important in understanding the issue with which we are dealing. The quality of indecency is readily inferred from the defendant's motive of sexual gratification. When looking at issues of indecency the two matters that must be taken into
account are the intention of the perpetrator of the alleged indecent act and the setting in which it takes place. Clearly, some physical actions that are entirely appropriate in a doctor's surgery would not be appropriate on a London bus. That
applies much more widely. Unless the definition of obscenity or indecency that we use takes into account intention or setting, it will be a defective definition.
It is a myth to believe that there can be a recognised standard of public opinion to which we can appeal. Public opinion has changed greatly over the years. One of the problems faced by supporters of the 1959 Act is that juries have
increasingly been unwilling to convict not only because of the difficulties of definition in the Act but perhaps also because public opinion itself has changed over the years. Those who have conducted research into violent and sexual material
on television, films and videos have found increasingly over the years that people are becoming--in my view, rightly--more intolerant of violence but less intolerant of the depiction of sexual activity. That, whether we like it or not, is a
fact of public opinion, and such things change.
I come now to my second point, which is the wording of the Bill. I am afraid that the noble Earl's attempt to use an ostensive definition, instead of the definition used in the 1959 Act, is doomed to failure, but it is not doomed to failure
just because of any defect in the ostensive definition itself. I would say on that point only that the definition includes acts which are themselves legal, and, indeed, in terms of human sexual activity some of us would say desirable, and lump
them together with acts which are illegal acts of violence or torture. Because the Act is concerned with articles, which includes words as well as pictures, it is difficult to apply those ostensive definitions equally to words and to pictures.
They are clearly designed for pictures rather than words, and it would be a matter of opinion whether they applied to words.
Then of course the attempt to rely upon ostensive definitions falls because the noble Earl is forced to use words such as "reasonable person". Who is a reasonable person? The 1959 Act says that it is someone who is likely to see the
material or read it. Surely that is much more likely to be an effective definition than a "reasonable person", which could be anyone. And then "grossly offensive": what is "grossly offensive"? That will change over
the years. Juries will be required to make judgments which it is inappropriate for them to make.
Again, in Clause 2, the noble Earl uses the phrase:
"fully justified as being for the good of the public as a whole".
One thing we know about the public on these matters is that there is no "public as a whole". There are lots of different publics with different views and different levels of sensitivity. I am sorry: I appreciate the sincerity of the
noble Earl and those who have spoken in support of the Bill, but it will not work.
Perhaps I may for one minute turn to what I think is valuable and what I think should be preserved. In saying that these proposed changes are undesirable, we should not lose sight of the desirability--indeed, the essential availability--of
classification and, in certain circumstances, censorship, particularly in the broadcasting of film, video and computer-generated material. Our criteria for those should be the protection of the vulnerable--in particular, of women and
children--both in the audience and as participants in the acts which are displayed. If we concentrate upon those matters, I believe that that is a more effective way forward.
I am afraid that it is not enough to rely upon illegal acts, because illegal acts, after all, have changed in the law. The Criminal Justice Act 1994 did for the first time legalise heterosexual anal intercourse. Are we going to change our views
on censorship entirely as a result of that change in the law? No, let us stick to what we know works--the protection of the vulnerable. Let us not be diverted into the issues unfortunately but well meaningly raised in the Bill.
The Earl of Courtown:
My Lords, I am sure that the whole House will be grateful to the noble Earl for bringing this subject before your Lordships this evening. The opportunity this Bill provides to debate this important issue is welcome. The debate has been most
interesting. The issue of obscenity, and the extent of the controls which it is appropriate for society to exercise over the availability of certain sorts of material, is clearly a difficult and a sensitive one. The subject raises issues of
morality and public decency; it touches on the relationship between the interests of the individual and those of society at large; and it involves complex questions of the role and effectiveness of the criminal law in a changing society.
The noble Earl has brought all these issues before your Lordships by virtue of the Bill which he has introduced. With characteristic clarity and conviction he has explained his concerns about the present situation and why he believes that
changes to the law are needed.
Many of us in our private capacities may lament that anyone in our society should want to have available some of the material that is now regularly sold in our local newsagents and generally available in other ways; for example, by mail order.
But that is not necessarily the same as concluding that the law should prohibit the availability of such material. The criminal law exists to prevent harm, to protect individual citizens and society itself from damaging behaviour and
influences. Its function is not to impose the preferences of one section of society upon others unless there is clear evidence that damage may otherwise be caused.
The law relevant to this issue is the Obscene Publications Act 1959. At its heart is the proposition that material is obscene if it causes harm--that is to say, if its effect, if taken as a whole, is such as to tend to deprave and corrupt those
persons who are likely to see, read or hear it. This test has been with us for a considerable time. Indeed, it was first formulated as common law in the 19th century and it has been the subject of debate whenever concerns have been expressed in
this area. The fact that it has remained unchanged may testify to its strength: it certainly reflects the difficulty in finding anything better.
It is a flexible test, pointing the court to the balance which must be struck between penalising material which may have harmful effects on its audience and avoiding prohibition of genuinely artistic or scholarly material. There have been
repeated attempts to find a different approach and the Government have kept the issue under continuing review. The fact that we have done so is an acknowledgement that the present position is not wholly satisfactory, and this is an issue which
we ourselves are also concerned to address. This Bill provides opportunity to further that debate. Nevertheless, we have not yet been able to find a better alternative.
The Act is not moribund. In 1995 there were 356 prosecutions and 259 convictions, although there is concern that the nature of the material which falls below the threshold for prosecution has been growing steadily worse. And we have kept the
law up to date with subsequent changes, particularly in regard to child pornography where our controls are among the toughest in the world. Nevertheless, the noble Earl has argued this evening that the law is ineffective. He believes that it
has become impossible for the courts to apply the test in the 1959 Act and he argues that it is impossible to say with any certainty what will fall foul of its provisions.
We shall be listening extremely carefully to the debate in the hope that it will signal the way forward. Nevertheless, I have to tell your Lordships that we are not convinced that this Bill is right, for the following reasons. It would
introduce a new general test of obscenity, supplemented by a widely drawn list of activities to be deemed, subject to the test, prima facie "obscene". This general test focuses on what is grossly offensive to reasonable people. I
agree with the right reverend Prelate that that is where the difficulty lies. The term "gross offensiveness", for example, is no clearer in meaning that the "deprave and corrupt" test, and the Government's view is that
juries would fall back upon their own judgment in deciding what was or was not obscene.
The test of gross offensiveness is not based on any consideration of harm to society and, as such, could leave the United Kingdom in breach of its obligations under the European Convention on Human Rights. "Harm" may be a
justification for restricting freedom of speech; "offensive" may well not be. People may find many things "grossly offensive", including political opinions or even revisionist views of history.
The noble Earl has suggested that the test of the "reasonable person" is the key to resolving this problem. He has drawn attention to the frequent use of that test in the criminal law, not least in the Protection from Harassment Bill.
But I believe that we are dealing with two very different situations. In his or her usual guise in the criminal law, the reasonable person could be anyone. We invite the courts to consider what any rational person would think in the
circumstances. Whoever we chose, whether conservative or radical in their political or moral views, would come to the same conclusion. But it is a very different "reasonable person" whom we are asking to solve our problems in this
case. The personal moral code of the individual concerned could fundamentally affect the judgment reached. I do not believe that this key test at the heart of the noble Earl's Bill would provide the courts with the certainty which they must
have for the proposed legislation to work.
The Bill would also amend the current "public good" defence. Under Section 4 of the Obscene Publications Act 1959, it is a defence to the charge of publishing an obscene article if it is proved in court that its publication is
justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
The noble Earl's Bill would amend this defence by substituting the words, "fully justified as being for the good of the public as a whole" for, "justified as being for the public good".
This may not appear a major change, but it could have very significant effects. There is a possibility, for example, that it could make illegal some articles that are aimed at a minority group such as the safe sex leaflets aimed at young
homosexuals. Those leaflets are explicit and expressed in a way which no doubt many people would find shocking. However, there is a clear need for public health reasons to provide this group with a safe sex message in a manner likely to attract
their attention. The Bill might put that in jeopardy.
The right reverend Prelate mentioned the need for greater control to be exercised over pornographic TV and satellite broadcasts. The Government have used their powers in regard to three such foreign channels by making proscription orders
against them. It is a criminal offence to supply smartcards, to advertise and to promote such channels.
I have outlined a number of reasons why the Government cannot support the terms of the Bill although, in keeping with the traditions of the House, we shall not oppose its Second Reading this evening. However, we welcome the opportunity which
the noble Earl's Bill has provided to address a real problem about which we are concerned. We are open-minded and open to suggestions as to the way forward and hope that the Bill will act as a catalyst in bringing wise counsel to bear on this
difficult issue. We shall certainly follow up any possible ways forward which may emerge from the debate.
The Earl of Halsbury:
My Lords, first, I thank all those who have taken part in the debate. I am sorry that the right reverend Prelate had to leave but he had a train to catch. I shall reply by letter to his remarks after I have studied them in Hansard. I thank the
noble Viscount, the noble Earl, and the noble Lord for their contributions. I remind your Lordships that there will be a Committee stage. If the Government do not actively oppose the Bill, I shall try to arrange a Committee stage where we can
flog out those matters by means of amendments.
I am a trifle disappointed by the Government's reaction. They agree that the present situation is unsatisfactory but--I quote a familiar phrase--they seem eager to wound but afraid to strike. I wonder what it is they are afraid of. Do they
think that the Bill in its present form would make matters worse?
Are they concerned about the load on the criminal courts which will occur if pornography is prosecuted more intensively? Do I detect a sort of vague numinous presence of what I might call the Great Whore of Grub Street as specified by my noble
friend in the previous debate this evening, brooding over our proceedings and threatening everyone with her disapproval? I do not know about that, but I ask your Lordships to give the Bill a Second Reading.
The proscription of foreign satellite sex channels
18th December 1996
The Minister of State, Department of National Heritage (Mr. Iain Sproat):
I am grateful to the hon. Member for Leigh (Mr. Cunliffe) for raising these important issues, and giving the House the opportunity to
debate them. There is widespread concern in the country about standards of taste and decency on television. The Government strongly believe that there is no place for hard core pornography in a society that cares about the protection of
children. Hard core pornography, in whatever medium, is unacceptable. I want to take this opportunity to set out clearly the situation in respect of television pornography.
The type of television material about which we are concerned falls into two distinct categories: the domestic so-called adult channels, which are licensed by the Independent Television Commission, and the channels that are receivable in the UK
via satellite and transmitted from abroad by foreign broadcasters. I shall deal with each in turn.
Broadcast services that are licensed in the UK are governed by the arrangements, agreed by Parliament, in the statutory framework of the Broadcasting Acts and the BBC charter. Those arrangements place responsibility for maintaining standards of
taste and decency on regulators and broadcasters. The House will be aware that my right hon. Friend the Secretary of State for National Heritage regularly meets the broadcasting regulators and has frequently discussed matters of taste and
decency with them. We have ensured that all broadcasters are held responsible for programme content. In the new BBC charter and agreement we have placed specific obligations on the corporation to maintain standards of taste and decency and
given the governors a clear duty to ensure compliance with their guidelines on standards. That responsibility on the governors is new and was introduced only this year.
The BBC has also recently reviewed its producer guidelines and this week published a series of pledges to viewers, including a commitment to monitor their views and concerns. The BBC document specifically states:
"for each of us, sexual activity happens after moral decisions have been made; its portrayal therefore should not be separated from recognition of the moral process."
I welcome that recognition by the BBC of the importance of such ethics in broadcasting.
With the development of the cable and satellite broadcasting sector, there are dedicated adult channels now licensed in this country which broadcast adult erotica. Their programmes are, broadly speaking, titillation. There are at present three
such channels. They are: Playboy TV, the Adult Channel, and Television X--the Fantasy Channel, all of which are licensed by the Independent Television Commission and are subject to its licence conditions and guidance codes.
To prevent viewing by children, several conditions must be met by the broadcasters. The channels are provided only on payment of a premium rate fee in addition to the cost of subscription, and must be specially selected by the customer. That is
to say, they must not be offered as part of a subscription package. They are encrypted, which means that the signal is scrambled and can be unscrambled only by the appropriate smart card. They may show material of a more explicit nature than
would be acceptable on mainstream channels, but only between the hours of 10 pm and 5.30 am. I am told by the ITC that channels restrict their explicit output to the hours between midnight and 5.30 am and show only material that has been given
an 18 certificate by the British Board of Film Classification or has been edited to an equivalent standard. They cannot show the more explicit sexual material which might be granted a restricted 18 video classification.
The ITC is vigilant in monitoring the adult channels and has intervened where its codes have been breached--five times since 1992. These interventions take the form of warnings to the broadcasters. Four of the warnings were made shortly after
the channels were introduced, and the broadcasters responded by avoiding further transgressions. In 1995, the commission upheld a complaint and gave a formal warning to Television X following the transmission of a film which included material
that had been cut by the British Board of Film Classification. If necessary, the ITC has the power to issue further sanctions, including fines and, ultimately, the withdrawal of a licence. However, to date, the ITC considers that the warnings
have been effective and sufficient.
Our concern to exercise proper control over standards on television extends also to films and videos. In the case of film, it is important to remember that cinemas can control access to films and ensure that children and young people are
excluded from films that have been classified as unsuitable.
Videos present a more difficult problem. In the cinema, the viewer is in public, experiencing the reactions of other viewers. He is also seeing a film live--running straight through without breaks or repetition. When the same film is shown on
video, it can be viewed in private and scenes can be watched over and over again. Although it is an offence to sell or rent videos to those judged too young to watch them, videos are in the home and can be misused.
The Obscene Publications Act 1959 covers the most offensive material on video, but we are concerned about the easy availability of other violent and sexually explicit videos. My right hon. and learned Friend the Home Secretary asked for a
report from the British Board of Film Classification on the content and classification of videos on 5 November, and he expects to receive that report by the end of this month. The Government will consider that report closely.
I turn now to the controls we have on the unacceptable material beamed in from other countries. The services concerned are pornographic television channels that are receivable in the UK via satellite, and transmitted from abroad by foreign
broadcasters. I particularly welcome the opportunity to set out the facts on this matter, which has received considerable coverage in the media recently. Some of the press coverage has, unfortunately, been misleading.
Other European countries share our desire to protect children from pornography. The television without frontiers directive, which the hon. Member for Leigh mentioned, prohibits broadcasters in all member states of the European Community from
transmitting unacceptable pornographic television programmes, but the definition of what is unacceptable within their frontiers is up to individual states to decide. Other states can complain if they feel the material breaches the directive.
That, coupled with the powers established in our domestic legislation--the Broadcasting Act 1990--enables us to take action to restrict access to foreign broadcasters who transmit unacceptable material.
To understand the extent of the powers available to us in respect of foreign broadcasters, it is important to understand the principle of single jurisdiction. To address problems that arise from transfrontier broadcasting, it is essential to
have international rules that apply equally to all signatory countries. Each country should ensure that broadcasters operating under its jurisdiction comply with the rules. For the rules to work effectively, each broadcaster must be the
responsibility of one, and only one, country. Member states should not try to influence broadcasters. As a single market measure intended to allow the free flow of broadcasting throughout the Community, the directive prohibits member states
from interfering with broadcasters outwith their jurisdiction. We would not take kindly, for example, to another country trying to regulate the BBC.
There is one exception to that rule, and it allows us to act against foreign broadcasters that transmit unacceptable pornography. I shall quote directly from the directive.
"Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include programmes which might seriously impair the physical, mental or moral development of minors, in
particular those that involve pornography or gratuitous violence."
That could hardly be more clear. The directive provides that, when member states believe that a breach of that provision has taken place, they may take measures against the relevant broadcaster.
A second category of programmes, which contain material that is unsuitable for children but is of a less damaging nature, such as those licensed by the ITC, can be broadcast only when it can be ensured that, by selecting the time of
broadcast--late at night--or by technical measures such as encryption, children are prevented from viewing it.
A recent judgment by the European Court of Justice found that the UK had misinterpreted some of the provisions on jurisdiction. The Government are considering the court's judgment carefully and, in doing so, will have regard to on-going
negotiations on the revision of the directive. However, the important point for us to recognise today is that the judgment had no bearing whatever on our powers to take action against satellite pornography.
The Broadcasting Act 1990 established powers for my right hon. Friend the Secretary of State for National Heritage to proscribe foreign satellite services that broadcast programmes which offend against good taste or decency. In doing so, she
may act only upon a notification by the Independent Television Commission, which takes the initial view on which services are considered unacceptable. Upon receiving such a notification, the Secretary of State may make a proscription order when
she considers that to do so would be in the public interest and would be compatible with the UK's international obligations.
What is a proscription order? A proscription order declares a broadcaster unacceptable and creates criminal offences for various acts in support of a proscribed broadcaster. It makes acts such as the supply of smart cards, the supply of
programme material, advertising on or for the channel, publishing details of programmes and the provision of any other service in support of the broadcaster criminal offences. By stopping the sale of smart cards, we restrict access to those
channels in the UK.
Two proscription orders against pornographic broadcasters--those against Red Hot Television and TV Erotica--have already proven successful in restricting access to those services in the UK. On both occasions, we were supported in our action by
the European Commission, which confirmed that our action was compatible with Community law.
On 10 October, my right hon. Friend the Secretary of State made a third such order, against a foreign broadcaster called Rendez-Vous Television, which broadcasts an unremitting diet of explicit hard core pornography in clear breach of the
The proscription order against Rendez-Vous came into force only on 31 October, so it is still too early to assess its effectiveness, but I believe it will have the desired effect of significantly reducing the possibility of such objectionable
material being seen in the UK, and above all, being seen by children.