John Beyer to Julian Petley

In 1972 Lord Denning, then Master of the Rolls, observed that the 1959 Obscene Publications Act had "misfired" so far as prosecutions are concerned. "Much that is obscene," he said, "has escaped the reach of the law." This remains the position today, and so news that the Crown Prosecution Service (CPS) is mounting a prosecution under this act comes as a surprise. Is this a calculated risk, I wondered, to show again that the law is "not fit for purpose"? I had thought the CPS had long ago given up on such cases because they rarely result in a conviction.

In criminal cases under this act, jurors are asked not if the material before them is obscene but if an imaginary third party who is "likely" to see it would tend to be depraved or corrupted. Given that it was parliament's intention to "strengthen the law concerning pornography" there can be no doubt that the law has failed because of this fundamentally flawed test. Any objective examination of the volume and nature of pornography now compared with 50 years ago surely proves the point conclusively.

I would argue that the act should be replaced with one that actually achieves what parliament intended. Several attempts to amend the law have failed, not because they lacked popular support, but because of parliamentary procedures. The best option for reform, I believe, was that proposed by the late Earl of Halsbury in the House of Lords in 1980 in a debate he initiated about the Williams report, which examined the issue in the late 70s. Halsbury suggested drawing up a list of obscene sexual imagery, but this proposal was criticised by Williams, as it could never be exhaustive. Halsbury asked: "If it catches 90% of what you want to catch, is that not better than catching nothing at all?"

This gets us to the heart of the matter: do we, as a society, still regard anything as "obscene" and should "catching nothing" now be the objective?

Julian to John

I think that what Lord Denning actually meant was that much of what he personally felt to be obscene had escaped the reach of the law! And this is indeed the problem for many people with the Obscene Publications Act as it stands, namely that it doesn't catch works that they themselves consider obscene.

You note quite rightly that it was parliament's intention "to strengthen the law concerning pornography" in passing the act in 1959, but it needs to be pointed out the act was also meant "to provide for the protection of literature". In this respect it was a liberalising measure. At the time it was generally thought that sexual material could be neatly divided into two classes, "literature" and "pornography", and that the former would be protected by the new act while the latter would be caught by it. However, partly because this distinction is actually extremely difficult to sustain in practice, a large amount of material came into circulation which the more conservative supporters of the act would doubtless have liked to be prosecuted.

But the basic unworkability of the literature/pornography opposition was not the only reason for this. As you say, the act contained the "deprave and corrupt" test (which had in fact been used in common law cases of obscene libel since 1868). You say that this is "fundamentally flawed", but this is not and could never be an objective test which could be applied to material before a court; what it actually requires and involves, in practice, is juries and magistrates in obscenity cases taking into account what they deem to be current standards of public acceptability in this area.

These not only change over time, but they vary from one social group to another. There's no doubt that cultural attitudes have generally become more liberal since the 1960s – and the way in which the act has been enforced has reflected that, which you don't like – but, equally clearly, not everyone shares those liberal attitudes, and nor is there any reason why they should do so. So what do we do? My view is that we need to find a way of protecting people from material that they might deem obscene, while at the same time protecting the existence of such material and the freedom of those who wish to access it (whether or not they think it obscene). What do you think?

Incidentally, I really would counsel against the "laundry list" approach to obscenity which you outline. As Winston Churchill found to his cost in 1986 when he introduced an ill-fated private members bill to reform the Obscene Publications Act, the real problem with such an approach is not that it doesn't catch everything it's supposed to, but that it catches a very great deal more besides. As, in my view, will the "extreme pornography" clauses in the new Criminal Justice and Immigration Act 2008.

John to Julian

Although approaching the matter from very different perspectives it is pleasing to be in agreement that the present law is certainly not effective in achieving parliament's intention. But I believe this is an argument for effective reform rather than abolition.

The 1959 act started out as a 10-minute rule bill introduced into parliament by the late Lord Jenkins of Hillhead. It is very rare for such a bill to reach the statute book, but because it was supported by the government of the day it became the first in a succession of liberal reforms sweeping away constraints and opening the way for the "swinging 60s", an era when opinion-formers and style gurus advocated "letting it all hang out"! The pornography industry quickly took the lead.

As the consequences of this social engineering unfolded it was surprising that Roy Jenkins observed, when speaking in Abingdon in 1963, that "a better name for the permissive society is the civilised society". This curious juxtaposition is a sure indication of very muddled thinking. In this context, "permissive" and "civilised" are contradictory. What, in fact, has happened is that pornography has perpetuated inequality and discrimination, becoming for some a new form of slavery. It is the weakness in law that the pornography industry shamelessly exploits regardless of any other consideration.

Lord Denning also noted that the law had "misfired" because of "the wording of the statute and the way the courts had applied it". This, from the former Master of the Rolls, is not a personal judgement of pornographic imagery but a statement based on the evidence coming to him from the courts up and down the land over which he had jurisdiction.

There can be no denying that attitudes change, but in the realm of pornography attitudes towards acceptability have largely been shaped by those who have most to gain. The truth is that what pornographers continue to supply, because the ill-defined law allows it, creates the demand for material that has degenerated from a masturbatory aid to depictions of sexual torture.

Julian to John

As I said before, the Obscene Publications Act was effective in achieving one of parliament's intentions, namely offering to literature a degree of protection from prosecution for obscenity. I also suspect that Lord Jenkins, who was liberal-minded in these matters, would have accepted that an increase in the amount of pornography in legal circulation as a result of the act was a price worth paying to protect literature.

I actually agree with you that the pornography industry has deeply unpleasant aspects, but I think we should re-direct ourselves to the question of the future (if any) of the act. You've suggested that the act should be reformed so as to take a "laundry list" approach to obscenity, and I've explained why I think this is unworkable. So let me propose my approach, which is similar to, but in some respects goes further than, that of the 1979 Report of the Committee on Obscenity and Film Censorship chaired by Bernard Williams.

Namely:

• Terms such as "indecent", "obscene", and "depraved and corrupt" should be recognised as too subjective to have any place in modern law and so should be scrapped

• The only material that should be banned is that whose making can be proved to have involved the commission of illegal acts, such as non-consensual sex

• Material which some people might find offensive or which should not be made available to young people, should be restricted. Thus, for example, certain publications will still find themselves relegated to the top shelf, and only licensed sex shops will be able to sell hardcore pornography. Unlike at present, though, they will also be allowed to engage in mail-order business

The merit of this approach is that only material which most people would regard as incontrovertibly harmful, in that its making involved committing acts which are in themselves illegal, would be banned. It also retains those elements of the Indecent Displays Act and Local Government Act which makes it illegal for licensed sex shops to display or otherwise advertise their wares in such a way as to shock the casual passer-by, and that part of the Obscene Publications Act which insists that the target or likely audience of the material in question must be taken into account when judging whether or not it is obscene.

Thus the authorities' attention will be directed solely at material which is demonstrably and unarguably harmful. With their task considerably simplified, they will (hopefully) put all their energies into discouraging the production of such material by energetically pursuing its perpetrators. Meanwhile, those who don't want to see, or in the case of children, shouldn't be seeing, certain kinds of material, won't have it thrust in their faces.

John to Julian

Although speculative, you may be right that Lord Jenkins was content with the situation he brought about. It may also be true that he had regrets about how his law was manipulated by the very people parliament sought to constrain. Writing about television, in 2004, one of his contemporaries, Lord Hattersley, said: "A painful fact to swallow for unapologetic libertarians – is that liberty, far from producing an improvement in quality, has produced a continual deterioration in standards."

Of course, there are different ways to resolve the failure of the act and I agree with you that subjective terms are less than ideal. It is for this reason that those who have thought about it advocate the "list" approach because it would work. The British Board of Film Classification (BBFC) operates exactly such a scheme in determining which imagery is suitable for a given age rating. The board is clear in its guidelines that certain pornographic imagery should be restricted but other imagery is suitable for general exhibition. Although the board has drawn the line in the wrong place it demonstrates that a list approach works.

Curiously, you seem to be advocating a list yourself when proposing to outlaw "illegal acts". Are you really saying that an obscene sexual act may be marketed just as long as those involved consented? What would be the difference in the image if the "performers" had been coerced? How would this be proved in a court? Do you envisage that these performers would be called to give evidence that they were not coerced?

And how do you define "harm"? I would argue that the sexual free-for-all that pornography represents has caused serious harm in terms of the sexual health crisis, the rise in sexual offences and broken or unfaithful relationships, and the perpetuation of discrimination against women. Pornography has invaded every aspect of modern life, particularly television, film and the internet, to which there is unrestricted access. If you do not recognise these as "harms" please define your term.

Julian to John

I'm interested that you regard the BBFC's guidelines as constituting a "list" approach. To me, a list (in this context) suggests an index of absolutely banned words and images, whereas, for the most part, the BBFC guidelines simply inform distributors that certain pretty broadly defined kinds of content will not be acceptable within certain age ranges.

On the other hand, within the 18 category certain kinds of material are indeed proscribed outright, namely that which "appears to the Board to risk harm to individuals, or, through their behaviour to society – eg, any detailed portrayal of violent or dangerous acts, or of illegal drug use, which is likely to promote the activity", along with "portrayals of sexual violence which might, for example, eroticise or endorse sexual assault". Although I have problems with the notion of "harm" that is being employed here, I still don't see this formulation as constituting a list as it's just too broad and general.

It's not until we get to the R18 category – for material which may be sold only in licensed sex shops – that we start to encounter more specific categories of proscribed images, which do indeed amount to a form of list. But this is precisely where the problems arise. First of all, it is in this adults-only category, in which one would expect to find the BBFC making the least cuts, that it actually makes the most – in 2007, 27% of R18 DVDs were cut. Second, it's hard to read the accounts on the BBFC's excellent website of why specific R18 titles were cut without gasping in disbelief. Can it really be the sign of a sane society that highly trained examiners are spending vast amounts of time poring in minute detail over material that the authorities in most other western countries regard as largely unproblematic – just in case it might be thought to fall within a category proscribed by the R18 list?

And now, in the Criminal Justice and Immigration Act, we have another list – this time of the ingredients of what the government describes as "extreme pornography". But many of the constituents of the list are highly subjective, and, where they are more specific, they threaten to criminalise a far wider range of material than the authors of the act claim they intended.

Those are some of the problems associated with a list approach to reforming the Obscene Publications Act. And yes, in answer to your question, I do think that the notion of "harm" should be limited to the harms caused to those taking part in non-consensual activity, and that this should ultimately be a matter for the courts to decide.

John to Julian

I agree with you that there are some "deeply unpleasant aspects" to the pornography industry. It is difficult to discern which aspects are not so! Surely pornography, by its nature, is unpleasant because it turns private sexual intimacy into a public spectacle and a commodity to be sold indiscriminately. As such it undermines human dignity and destroys the innate modesty that comes with being human.

Performers are required to satisfy the tired sensibilities of onlookers for whom the people involved are little more than sex objects. There is no sense of love, emotion or commitment: it is just the exploitation of sexual functioning divorced from the reality of whole relationships. How can this be good or embody literary merit?

Tragically, in the liberalisation of the last 50 years, statistics show that sexual offences have dramatically increased and some women have even been murdered as a result. We know that Frederick and Rosemary West used pornography in their crimes. So did Anthony Hardy, Peter Sutcliffe, Roy Whiting and Graham Coutts.

Never before in human history has pornographic imagery been so widely and easily available. To believe that this does not create a distorted view of human sexuality is irrational. Many children are being routinely exposed to such material while surfing on the internet and real fears have been expressed about the permanent psychological damage this could cause. The industry seems to be much more concerned about "getting them hooked while they are young" so its future market is secured.

In this short debate we have established that the present law is not working as parliament intended and I have expressed concerns about the damaging consequences for societies where pornographers operate with little legal constraint. This is a serious issue that is not about freedom of expression but about the role of parliament in legitimately protecting citizens from exploitation. Accordingly, I believe the law should be effectively strengthened for the common good.

Julian to John

In our exchanges, I've sensed your desire to broach the "effects" debate, and equally you may have sensed my desire to avoid it! This isn't because I think it dents my case but because I don't think it gets us very far. As this is my last letter, let me try to explain why.

Britain has an extremely poor record compared with nearly every other European country when it comes to levels of teenage pregnancy and sexually transmitted diseases. However, many of the countries that have the best record in these matters, such as the Netherlands and certain Scandinavian states, are also very liberal in their attitude to pornography. So why would anyone suggest that our sexual problems be caused by pornography?

In my view, there are two major difficulties with drawing direct causal links between media images and forms of social behaviour. The first is that they're unprovable (which results in people falling back on unhelpful appeals to "common sense", and ignoring that correlation is not the same thing as causality). The second is that making such links draws attention away from the real causal factors of the behaviour in question, factors whose roots lie deep in the socialisation process (or lack of it) and which raise uncomfortable questions about the kind of society in which we live.

It is true that many sex criminals have used pornography, but it's equally true that the vast majority of people who use pornography don't turn to sex crime. Furthermore, there's no way of knowing whether or not these criminals would have acted thus in the absence of pornography. Again, this is what I mean about this line of reasoning not really taking us very far.

My own view is that some (but by no means all) forms of pornography do represent people as dehumanised sex objects and, as such, embody the values of the highly commodified society in which we live and in which women and men are treated highly unequally. But for me the main problem is not such pornography itself, but the attitudes underlying it and to which it appeals, which no amount of censorship will change. So while, as I've said, I would reform the Obscene Publications Act so that it applied only to material whose making involved actual harm to the participants, I would also attempt to reduce the long-term demand for the more sexist forms of pornography by improving the quality of sex education and starting it at a younger age, along with abolishing all forms of gender inequality in the workplace. This, I think, is the difference between us: you would make the world better by abolishing pornography; I would make the world better and, in so doing, reduce the demand for the more objectionable forms of pornography.

• Julian Petley writes about obscenity and the internet in the new issue of Index on Censorship. For details on stockists and how to subscribe – and to read features from the issue – go to indexoncensorship.org