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I am quite confused by what seems at the outset to be a very simple question in the UK's obscenity laws. Suppose a person puts an obscene story on a website (we'll call them the Writer) and another person reads the story (we'll call them the Reader).

Is the Reader guilty of 'publishing' the material and therefore in breach of the 1959 Obscene Publications Act?

In the normal sense, 'publication' is defined in an online context as

"to submit (content) online, as to a message board or blog: I published a comment on her blog post with examples from my own life." according to www.dictionary.com (emphasis added is mine).

In the context of the Obscene Publications Act, the word 'publishes' seems to have been redefined, appropriated to become a piece of legalese that no longer reflects the original meaning of the word. The wording of the Act states (emphasis mine) -

(3)For the purposes of this Act a person publishes an article who—

(a)distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or

(b)in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it [F1, or, where the matter is data stored electronically, transmits that data.]:

. . . F2

What does it mean to 'transmit' that data? Regina vs Waddon has shown that transmission is said to have occurred when the data is uploaded to the Website by the Author or downloaded from the Website by the Reader. In both those instances, the Author was deemed to have 'published' the article. (The reason it mattered was that although the Website was hosted abroad, the UK-resident Author had still broken the UK law when the material was downloaded in the UK so he could therefore be prosecuted).

But what about the Reader? ... This nebulous wording seems to imply all manner of things.

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The answer to your question is 'No'. The 1959 Act only creates an offence relating to the sale, production, promotion or publication of material that is obscene for the purposes of the Act.

The crucial issue is the nature of the "obscene material". Under the 1959 Act, the test is in s1(1) "deprave and corrupt".

There are examples of where it is an offence to be in possession of certain materials: child pornography or material that could be used in the preparation of a terrorist act are obvious examples.

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Look at the technicalities first. The obscene material is stored on a server in an electronic form. The reader requests the data. The server transmits the data to the reader. The reader reads it.

At no point did the reader transmit the obscene material, they only requested it which AFAIK is not illegal.

The writer of the material has transmitted it at least twice: once to upload it to the server and once to send it to the reader. The ISP has transmitted it at least once too, however, if the ISP has and follows the appropriate procedures they have defences that they can rely on.

  • OK, I'll bite. I don't know enough about computers and the internet to disagree with your synopsis of F2. What about F1 though? 'shows, plays or projects it'? To me, a Reader seems to be doing that, albeit only to themselves. – user629913 Aug 26 '16 at 19:42

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