In this chapter we look at three criminal libels - blasphemy, obscenity and sedition. We discuss what they are and the dangers for journalists.
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In the previous two chapters we looked at a form of libel called defamation. In this chapter we will discuss three more areas of the law concerned with the use of words or pictures. These are the offences of blasphemy, obscenity and sedition.
Criminal libels
Blasphemy is an attack on God, obscenity is an attack on moral values and sedition is an attack on the state. All three are called criminal libels, which means that cases are taken through the criminal court system, usually by a state prosecutor.
As with defamation, blasphemy, obscenity and sedition are based on a mixture of English common law and the laws of individual countries. It is important, therefore, that you know any laws relating to blasphemy, obscenity and sedition which are in force in your country.
The major difference between defamation and these three criminal libels is that journalists accused of blasphemy, obscenity or sedition cannot use such defences as truth, fair comment or privilege. Even if you fairly and accurately report words spoken in a court or Parliament, if a court thinks those words are blasphemous, obscene or seditious you will be found guilty of an offence.
Criminal courts sometimes have to listen to evidence of an intimate nature, especially in sexual offences. If such evidence is obscene (within the definition given below) it cannot be published or broadcast, even though reporters were allowed to remain in court while it was being given. The same rule applies to blasphemous or seditious statements made at public meetings.
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Blasphemy
Blasphemy is an attack on God or religion. In English common law, matter is said to be blasphemous if it:
"denies the truth of the Christian religion or of the Bible or the Book of Common Prayer, or the existence of God."
Countries with a state religion other than Christianity usually have their own definitions of blasphemy. Journalists should be aware that some countries have very strict blasphemy laws which can include imprisonment, corporal punishment or even death penalties.
Centuries ago in Europe, blasphemy was a very serious crime, and many people were executed for saying things critical of the state religion. However, over the centuries the situation has changed. In most modern democratic countries, the laws of blasphemy are not used very often, if at all. Britain - the source of much common law - abolished its blasphemy laws in 2008. Today, in countries where blasphemy continues under common law, the prosecution of anyone for blasphemy depends more on how a thing is said rather than on what is said. Blasphemous words are punishable:
"for their manner, for their violence, or ribaldry or, more fully stated, for their tendency to endanger the peace, to deprave public morality generally, to shake the fabric of society and to be a cause of civil strife."
In short, if you say things about religion in such a manner that people become so angry they break the law, then you could be prosecuted for blasphemy. Blasphemy used to be dangerous because it could - and did - lead to civil strife and threatened the stability of the state.
Such a reaction is less likely in modern democratic countries. Words would only be blasphemous today if they were used in such a strong way that they were likely to shock or outrage the feelings of most religious believers in a community.
You must be aware of the strength of religious beliefs in your country and act accordingly. It is a good idea to look through case law in your country on the internet or in the nearest available law library, to see whether there have been prosecutions for blasphemy, and under what circumstances.
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Obscenity
Societies have always had problems defining obscenity. Although it is defined as anything which offends people's decency or modesty, obscenity is usually limited to sex or what people might regard as foul language. The problem is that material which offends some people (such as a photograph of the sex act) does not offend others. And material which is acceptable in one situation (such as a picture of the sex act in a medical textbook) is not acceptable elsewhere (such as the same picture in a family newspaper).
The legal definition does not give us much help. English common law says that obscenity is words, pictures or actions which are likely to "deprave and corrupt" those likely to see or hear them.
Many countries have obscenity laws, but even modern laws often give little guidance on what makes a publication obscene, except that it tends to corrupt morals.
With many laws, it is possible to see what they mean by observing how they are used in practice. That means looking at court cases in which they are used. Unfortunately (or fortunately, perhaps), obscenity laws are not used very often in most countries, so case law does not give much guidance.
The best advice we can give is to avoid publishing any words or pictures, particularly of a sexual nature, which you know will offend the majority of your community. Even swear words can be obscene in certain situations and not in others. Swear words which people use without thinking, on the street or in their workplace, can be extremely offensive when printed in a newspaper or broadcast into their homes.
Although we said earlier that the usual defences such as truth, fair comment and privilege do not apply in criminal libels, there is a defence against obscenity if you could prove that the words or pictures had literary or artistic merit. However, literary or artistic merit is almost as hard to define as obscenity itself. You would need to call experts, such as a professor of literature, to prove literary merit in court.
The most famous obscenity trial in English legal history involved the D.H. Lawrence novel Lady Chatterley's Lover, in which there were a number of swear words. A jury decided that, because the novel was a work of literary merit, the words were not obscene.
In some criminal codes, public benefit is also a defence, although it would have to be proved in court that the words or pictures actually benefited the public in some way. You might be able to argue, for example, that a description of sex was educational in its context, perhaps in a medical textbook.
Journalists are at greatest risk when they report on prosecutions for sexual offences. The court may have to hear details of a very intimate or shocking nature. These details cannot be repeated in a news report if there is any question of them being obscene. The defence of privilege does not apply in such cases.
The question of obscenity arises most often in pictures, videos and films, under the general heading of pornography. This will seldom concern the working journalist.
The question of obscenity is very closely allied with good and bad taste. Your question as a journalist should not only be "Is this legal?" You should also ask yourself "Is this going to offend my readers, listeners or viewers unnecessarily?" If it is, perhaps you should think about leaving it out. (See Chapter 61: Taste and bad taste.)
The danger is that any error in judgment will be seen by people who may have a definite view of what is and what is not obscene. Unlike defamation, anyone can start a prosecution for obscenity if they are offended by what you publish.
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Sedition
Sedition is words or actions designed to cause people to act unconstitutionally. It is a good test of any democratic society to see where it draws the line between honest political disagreements and sedition.
Today, laws on sedition often have more to do with promoting racial and social harmony than with protecting the state. Sedition is often defined as the intention to promote feelings of ill-will or hatred between different races, classes or religious groups within the country.
Sedition is not determined so much by the meaning of words as by the way they are presented. The law will not usually act against a genuinely held opinion, as long as it is expressed in moderate language.
In democratic societies, the law usually recognises that it is all right to question decisions by the Head of State, government or parliament as long as this is done in good faith with a view to correcting errors or defects. Political comment, even in strong terms, is acceptable, as long as it is not done with the intention of attempting to overthrow the government or legal system by unlawful means.
In democracies, you can write that your country would be better off under a different government, but you cannot advise your readers or listeners to burn ballot boxes or to intimidate voters.
Although based on common law, many countries now have their own statutes on sedition in their criminal codes. You should find out what these are in your country.
Remember, too, that although your country may be governed by a parliament and operate in the English legal system, the way the laws on sedition are applied depends largely on the political system. Some governments allow less public criticism than others.
For information on the sedition laws in a number of countries, see the Appendix at the end of Chapter 72.
TO SUMMARISE:
In many free-press democracies the laws of criminal libel are seldom used.
As a journalist you should also consider matters of taste in matters which might be blasphemous or obscene.
You cannot use defences of truth, fair comment or privilege in cases of blasphemy, obscenity or sedition
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