Although most countries had, by the 19th century, enacted legislation outlawing trafficking and possession of obscene publications,195it was not until 1910 that the
189 1994 UPU Postal Parcels Agreement, Art 58(1.1)–(1.3).
190 Ibid,Art 58(1.4); this is confirmed in the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Art 19, which obliges parties to adopt appropriate legislation in order to apply investigative and control techniques designed to detect illicit consignments of narcotic drugs in the mails. Reprinted in 1988 UST LEXIS 194.
191 Ibid,Art 58(1.4).
192 US federal law, eg, penalises the mailing of obscene or crime inciting matter. See Obscenity Act 1948, 18 USC § 1461; similarly, UK Postal Services Act 2000, s 85(3)–(5).
193 Mail Fraud Act 1948, 18 USC § 1341.
194 ‘US crackdown on Nigerian mail fraud’, BBC, 11 November 1998.
195 Eg, UK Obscene Publications Act 1857.
first relevant treaty was adopted: the Agreement for the Suppression of the Circulation of Obscene Publications (the 1910Agreement).196Prior to this Agreement, however, Member States to the 1906 UPU Convention could have relied on its Art 16(3)(2)(d) which prohibited the mailing of any articles whose importation or circulation was forbidden in the country of destination. This prohibition on the mailing of obscene material was later made explicit in Art 18(2)(d) of the 1920 UPU Convention, and has been incorporated ever since in the international agreements of that organisation.197 Despite the absolute prohibition in distributing obscene material established by the UPU Conventions and the 1910 Agreement, the elastic nature of the concept of obscenity from region to region has precluded international lawmakers from reaching a binding definition. The 1910 Agreement simply obliges parties to establish or designate a national authority charged with the duty of centralising and supplying information which would facilitate the repression of infringements under domestic law relative to obscene writings, drawings, pictures or articles, whose constitutive elements bear an international character.198The 1910 Agreement, therefore, did not intend to create an international offence, but merely to combat a transnational offence through domestic mechanisms. On the same basis, Art 1 of the 1923 Convention for the Suppression of the Circulation of and Traffic in Obscene Publications made it a punishable offence:
(1) for purposes of or by way of trade or for distribution or public exhibition to make or produce or have in possession obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films or any other obscene objects;
(2) for the purposes above mentioned, to import, convey or export or cause to be imported, conveyed or exported any of the said obscene matters or things, or in any manner whatsoever to put them into circulation;
(3) to carry on or take part in a business, whether public or private, concerned with any of the said obscene matters or things, or to deal in the said matters or things in any manner whatsoever, or to distribute them or to exhibit them publicly or to make a business of lending them;
(4) to advertise or make known by any means whatsoever, in view of assisting in the said punishable circulation or traffic, that a person is engaged in any of the above punishable acts, or to advertise or to make known how or from whom the said obscene matters or things can be procured either directly or indirectly It is evident that, although the participating States possessed a general understanding on what constituted obscenity, they were reluctant in reaching a definition, which, even if agreed upon, would involve such compromises that would only limit the scope of the Conventions.199
The complexity of this topic has subsequently raised threshold questions vis-à- vis the right to freedom of expression and legitimate commercial interests. In the
196 1 Bevans 748.
197 1994 UPU Postal Parcels Agreement, Art 26(2), (5.3).
198 1910 Agreement, Art 1.
199 This did not change even with the latest instrument, the 1949 ProtocolAmending the 1910Agreement for the Suppression of the Circulation of Obscene Publications, TIAS 2164.
Handysidecase, a publisher was convicted under the UK’s Obscene Publications Act (OPA) 1959 for distributing a children’s book containing anti-authoritarian passages.
Under Art 10(2) of the 1950 European Convention on Human Rights200the freedom of expression may be restricted,inter alia,as may be necessary in a democratic society for the protection of morals. The European Court of Human Rights held that, since it was impossible to find a uniform European conception of morals, Art 10(2) afforded national authorities a margin of appreciation, which, in the particular case, was legitimately aimed at protecting the morals of the young.201Likewise, the ECJ has held that, although Member States to the 1957 Treaty Establishing the European Economic Community202are free to make their own assessments of the indecent or obscene character of certain articles, they may not rely on the public morality provisions in the Treaty to prohibit the import of goods from other Member States when their own legislation contains no prohibition on the manufacture or marketing of the same goods on their territory.203
As a transnational offence, individual countries are best suited to define obscenity and repress its distribution and circulation. In the UK the test of obscenity under s 1(1) of the OPA 1959 has been whether the contested article tends to deprave and corrupt persons who are likely to read, see or hear the matter contained or embodied in it. It is an offence under s 1(3) of the Act to publish an obscene article—including distribution, circulation, selling, letting on hire, giving, or lending—whether for gain or not.204Although not a strict liability offence, persons found to possess obscene material for the purpose of publication must prove that they had not examined them and had no reasonable cause to suspect their nature.205This statutory defence is limited to persons who were in possession of such material for a legitimate reason, or to individuals who were ignorant of and had no reason to believe that they were in possession of or distributing indecent material, as well as persons that had received it unsolicited and had got rid of it with reasonable promptness.206
Under US federal law, it is unlawful for anyone to bring into that country any
‘obscene, lewd, lascivious, or filthy book, pamphlet, picture or other matter of indecent character…recording, [or] electrical transcription of the same nature’.207 The test of obscenity procured by the Supreme Court is whether work taken as a whole appeals to prurient interest in sex, display of which is patently offensive, not serious literary, artistic, political or scientific value, based on community standards,
200 213 UNTS 221.
201 Handysidecase (1976) 58 ILR 150.
202 298 UNTS 11.
203 R v Henn and Darby[1979] ECR 3795;Conegate Ltd v HM Customs and Excise[1986] ECR 1007.
204 OPA 1959, s 2(1). An ‘article’ under s 1(2) of the Act can be anything embodying matter to be read or looked at, any sound recording and any other film or picture. Video cassettes were later found to fall within the ambit of this section. SeeAG’s Reference (No 5 of 1980)[1985] 3 All ER 816.
205 Ibid,s 2(5); see also OPA 1964, s 1(3).
206 Pepper v Hart[1993] AC 593; this defence is not available to individuals who created the material or advertised its availability:R v Land(1998) 1 CAR 301.
207 Obscenity Act 1948, 18 USC § 1462 (importation or transportation of obscene matters).
not national.208Knowledge need only be of the general nature of the matter imported or transported, not whether it was known to be illegal.209
The growth of interstate communications and, especially, the potential which the Internet offers for the international transmission of pornography, has necessitated a re-examination of definitions and criminal jurisdiction. In the UK, s 84(3)(b) of the Criminal Justice and Public Order Act 1994 expanded the definition of photograph to include data stored on a computer disk or by other electronic means which is capable of conversion into a photograph. International repugnance against child pornography has developed a dynamic impetus as regards the suppression and criminalisation of all related activities.210Although child pornography constitutes a serious offence under the laws of all nations,211its circulation through the Internet poses jurisdictional problems where the offender is involved in transmitting material to a website which can be accessed by persons anywhere in the world. In a recent judgment, where the accused challenged the jurisdiction of UK courts on the basis that he had uploaded obscene material on a website in the US and, hence, there was no actual publication in England, the English Court of Appeal was of the opinion that publication could take place when uploaded onto a website abroad and downloaded elsewhere.212It is obvious that States wishing to suppress and prosecute child and other forms of pornography on the Internet can legitimately assert their jurisdiction based on the objective territorial principle, as all data uploaded on a website may be accessed from any national terminal, although other principles may alternatively be used.213Ratification of the 2000 Optional Protocol will undoubtedly make a significant impact in this regard, especially if participating States adhere to its provisions on effective co-operation.
208 Miller v California,413 US 15 (1973).
209 USA v Groner,494 F 2d 499cert denied; similarly, persons who mailed prohibited material need not have produced it, being sufficient that they only knew of the general nature of the material when it was mailed.USA v Thomas,726 F 2d 1191 (1982)cert denied.
210 See 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, Art 3(1)(c); on 6 February 1999 the EU adopted an Action Plan to combat illegal and harmful Internet contents such as child pornography and hate speech.
Decision No 276/1999 (OJ L33).
211 See, eg,Osborne v Ohio,495 US 103 (1990).
212 R v Graham(2000) LTL, 6 April.
213 The 1923 Obscene Publications Convention, Art 2, permits both objective and subjective territorial jurisdiction, as well as nationality jurisdiction. The 2000 Optional Protocol, Art 4, establishes, in addition, broad jurisdictional competence following the language of the various anti-terrorist treaties.