A number of agencies have been concerned to promote information about safer sex practices by using sexually explicit text and images. The rationale behind such a strategy is to ensure that the information is clear and does not rely upon ambiguous metaphors, and also to make the information as attractive as possible to a target audience.

British law, however, places controls on the use and distribution of sexually explicit material. The principal piece of legislation is the Obscene Publications Act 1959 (amended 1964).

The Obscene Publications Act 1959

Section 2 of the Act makes it an offence to publish an obscene article or to have an obscene article for publication for gain. The latter prohibition may have only limited relevance to the distributors of safer sex information as the vast majority of such information is distributed free rather than as a commercial exercise.

• An `article' is defined (s. 1(2)) as anything containing material to be read, looked at or listened to. `Publishing' includes distributing, circulating, selling, hiring, showing, playing, giving, lending and offering for sale or hire (s. 1(3)).
• The test of obscenity is contained in s.1 of the Act. The effect of the article taken as a whole must be to `tend to deprave and corrupt [a significant proportion of] persons who are likely ... to read, see or hear the matter contained' in the article.

There have been attempts to define the term `deprave and corrupt', but such definitions have been largely tautological. In the `Lady Chatterley' case, `deprave' was defined as ` to make morally bad, to pervert, to debase or corrupt morally'. `Corrupt' was defined as `to render morally unsound or rotten, to destroy the moral purity or chastity of, to pervert or ruin a good quality, to debase, to defile'.

These appear to be strong words – the suggestion is that what is being prohibited is something which might destroy the fabric of society. However, prosecution policy has rendered the phrase `deprave and corrupt' largely devoid of any real meaning. In practice the legislation is applied by having an effective blacklist of forbidden images.

Text is largely left untouched since a number of unsuccessful prosecutions. The blacklist is not static, however, but constantly changing as publishers seek to push the boundaries of permitted images forward and the prosecuting authorities seek to re–impose what they feel to be the appropriate limits.

For example, it was considered, until relatively recently, that an image of an erect penis was not permissible. The early 1990s, however, have seen an explosion of sexual guidance videos, which contain such images and yet have been certificated by the British Board of Film Classification, and have to date not been the subject of any prosecutions.

These constant shifts in what is and is not permissible make it difficult to give certain advice to agencies which are preparing explicit safer sex material. Text is certainly less at risk from prosecution than images. There are also certain concepts within the Act which may be of assistance.

Arguments supporting sexually explicit materials

First, it is arguable that careful targeting of a specified audience (for example, only distributing safer sex material for gay men at gay venues) will lessen the risk of prosecution since the Act requires the corruption of persons who are `likely to', as opposed to `conceivably might', see the article. Consequently, it might be argued that if the target audience has regularly experienced such imagery then there is no risk of corruption. However, in DPP v Whyte [1972] AC 849, the House of Lords held that the Act was not merely concerned with the once and for all corruption of the wholly innocent, it equally protected the less innocent from further corruption and the addict from feeding or increasing their addiction.

Secondly, in the case of R v Calder and Boyars Ltd [1969] 1 QB 151 (the prosecution of Last Exit to Brooklyn), the Court of Appeal added the requirement that a `significant proportion' of the likely readership would tend to be corrupted. This requirement was imposed to protect the publisher from speculation by a jury as to the possible adverse effect of an article on a young person who might just happen to see it. Targeting safer sex information is, again, therefore advisable. The 'significant proportion' test does not, however, require the prosecution to prove that a majority, or substantial number of readers or viewers would be adversely affected.

Thirdly, the article in question must be viewed as a whole. Any isolated items of an apparently offensive nature must be viewed in their context. This may be of significance if safer sex material uses an explicit sexual image to attract the interest of its intended recipient, but otherwise contains text.

Finally, even if a prosecution is brought under s.1 of the Act there would, with safer sex material, be a chance of a `public good' defence succeeding under s.4 of the Act. This states that the publication may be justified as being for the public good on the grounds that it is in the `interest of science, literature, art or learning, or other objects of general concern'. It is possible to call expert evidence on the merits of a publication.

Some of the case law on this section appears to be unhelpful to the application of the `public good' defence to sexually explicit material. In the case of Attorney–General's Reference (No. 3 of 1977) [1978] 1 WLR 1123 (following DPP v Jordan [1977] AC 699) the Court of Appeal considered the relevance of calling expert evidence to establish that certain magazines contained material which had merit in the field of sex education or had value in teaching about sexual matters, with a view to founding the `public good' defence. The Court ruled that expert evidence was not appropriate in such a case and that the provision of information about sexual matters did not fall within the scope of the `public good' defence.

However, it is arguable that the ruling was largely expedient and sought principally to control pornography dressed up as sex education material. Safer sex information may still be regarded as possessing scientific interest if it extends an existing body of knowledge or presents known facts in a systematic way. It would certainly be arguable that safer sex information should be within the scope of the `public good' defence.

The Act contains not only provisions to prosecute obscene material but also to seize it without prosecution (s.3). This power is frequently used because its use effectively places the onus upon the loser of the material to take action for its recovery. However the power of seizure only applies to material which is kept for publication for gain and freely distributed safer sex information will, consequently, be exempt.