Centre for Communication Governance at NLU delhi
Foreign and International Case Law

R. v. Hicklin, (1868) 3 QB 360

In this landmark case, the U.K. Queen’s Bench laid down the test for obscenity as “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall”.

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Handyside v. United Kingdom, ECtHR, App. No. 5493/72

The petitioner sought to challenge his prosecution for circulating obscene material as interfering with his rights to free speech under Article 10 of the European Convention on Human Rights. Applying the doctrine of margin of appreciation, the Court declined to intervene, stating that the interference was justified by a legitimate aim to protect the community. 

Roth v. United States, 354 U.S. 476 (1957)

The U.S. Supreme Court held that obscene speech was not constitutionally protected and the First Amendment could not be invoked in its defence. However, rejecting the Hicklin Test to determine obscenity, the court laid down the standard for judging obscene material as “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest”. 

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Miller v. California, 413 U.S. 15 (1973)

Upholding and advancing the test laid down in Roth, the Court held that for a work to be obscene so as to not receive Constitutional protection, it would have to fulfil three-fold requirements: (a) the Roth test of contemporary community standards, “(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 

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Mătăsaru v. Republic of Moldova, ECtHR, App. Nos. 69714/16 and 71685/16

The Court held that an anti-corruption activist’s demonstration outside a prosecutor’s office targeting a number of public officials would not amount to obscenity.

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