There are a number of other statutory provisions which may cause difficulties with the distribution and display of safer sex information. It should be noted that with respect to some of these provisions the test adopted is whether the material is `indecent' rather than `obscene'. Indecency is accepted to be a lower standard than obscenity and therefore more articles will be prohibited under legislation containing this test. Furthermore, such legislation does not contain provisions parallel to the `public good' defence and the material would be, consequently, viewed in isolation rather than in the context of its overall purpose.

The Video Recordings Act 1984

This legislation makes it an offence to distribute a video which has not been certificated by the British Board of Film Classification. Any new video has, therefore, to be submitted to the Board before its release. From the early 1990s (under the leadership of James Ferman), the Board has taken a liberal attitude to the certification of sex education videos containing explicit sexual imagery. This has extended to The Gay Man's Guide to Safer Sex, which was published in association with The Terrence Higgins Trust in 1992, and which received an 18 certificate from the Board.

The BBFC may also grant an R18 certificate, meaning that a video may only be supplied to adults in licensed sex shops. Prior to 1999, that classification was rarely used and the BBFC regularly refused to grant any certificate to material considered pornographic. However, in 1999 the Video Appeals Committee allowed a number of appeals against the BBFC’s decision to refuse certificates to certain videos, and an attempt by the BBFC to overturn that decision in court failed (R v Video Appeals Committee of the British Board of Film Classification, ex parte the British Board of Film Classification [2000] EMLR 850).

The guidelines for R18 classification have since been revised (current information is available on the BBFC’s website at http://www.bbfc.co.uk/) and the number of videos granted an R18 certificate has since grown dramatically – 1387 in 2004 compared to 29 in 1999. R18 videos may not be sold by mail order within the UK, a restriction which has recently survived a challenge in the courts (Interfact v Liverpool City Council [2005] EWHC 995), although it was noted in that case that such material may in practice be ordered from sellers based outside the UK.

Certification by the Board does not, however, preclude a prosecution under the Obscene Publications Act since the two pieces of legislation are not directly linked.

Importation of safer sex material

Section 170(2)(b) of the Customs and Excise Management Act 1979 (when read together with section 42 of the Customs Consolidation Act 1876) prohibits the importation of any obscene or indecent articles. However, the European Court of Justice ruled in 1986 that the principle of free movement of goods under European law meant that the UK could not restrict the import of goods on the basis that they were indecent or obscene when such goods could lawfully be manufactured and sold within the UK.

The consequence of the ruling was accepted to be (according to a later statement in Parliament by the then Chancellor) that “Customs could continue to seize obscene material but [could] not, with the exception of material involving children, seize indecent material”. Furthermore, although the decision “related solely to material imported from the [European] Community, Customs and Excise consider that it would be inequitable and impracticable not to apply the same standards to all imports” (HC Debs 3 May 1989, col 105).

Post Office Act 1953

This makes it an offence to send any indecent or obscene article through the post. S.11 of the Act defines obscene as `offending, shocking, lewd or indecent', which is a clearly different test from that contained in the Obscene Publications Act. The legislation does not apply to alternative distribution systems such as `Red Star', FedEx, DHL etc.

Unsolicited Goods and Services Act 1971

It is an offence under s.4 of the Act for a person to send any book, magazine or leaflet which they know or ought reasonably to have known was unsolicited and which describes or illustrates human sexual technique. Safer sex material should only, therefore, be sent when requested and not unsolicited.

Indecent Displays (Control) Act 1981

It is an offence under this legislation to display, in public, any indecent article. This may cause problems with, for example, a safer sex roadshow, which is displaying posters containing sexual imagery.

At the time of writing there have not been any prosecutions of safer sex material under any of the afore–mentioned statutory provisions, although the police and prosecution authorities have shown interest in a number of items including the video, The Gay Man's Guide to Safer Sex, and a German safer sex poster showing two men engaged in an act of oral sex.