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Obscenity, Blasphemy, and Freedom of Expression

Obscenity, Blasphemy, and Freedom of Expression

The right to freedom of expression is a fundamental right, which has not traditionally been prescribed by law, but can be considered more of a moral right.

However the enactment of the Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law, Article 10 of which creates a right to freedom of expression. Article 10 (1) states “Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” However this right to free speech is qualified and not absolute as Section 10 (2) imposes a number of restrictions upon its exercise; “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the reputation or rights of others.”

Two of these “restrictions prescribed by law” are the criminal offences of Obscenity and Blasphemy, which abridge freedom of expression in order to protect individuals and in some cases the public in general, against harm to moral integrity and uphold standards pf public behaviour as well as protecting religious sensibilities. The extent to which they constitute a restriction on freedom of expression, however, is a contentious issue and will be considered in due course.

The law on obscenity is aimed at protecting those who come to it willingly, against moral harm, which the obscene article is said to threaten. It guards moral integrity or protects some public interest in maintaining moral standards in a way, which overrides personal freedoms. Consequently any expression that contravenes accepted standards of social morality is potentially subject to restrictions.

Such restriction on peoples expression is justified by the ‘harm’ principle as developed by John Stuart Mills whereby expressive material may only be restricted/interfered with if can be shown to cause harm to others. However there are divergent views on what constitutes ‘harm.’ Some attribute the narrower definition, limiting it to physical or psychological harm that is scientifically evaluable. Others, instead of concentrating upon material harm are prepared to include moral and ideological...

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