The firms were accused of illegally supplying, or offering to
supply, R18-rated recordings on-line or by mail order.
Bexley-based Interfact Ltd and Birmingham-based Pabo Ltd were
accused by Liverpool City Council's trading standards officers of
breaching the Video Recordings Act 1984.
This Act provides:
"Where a classification certificate issued in respect of a video
work states that no video recording containing that work is to be
supplied other than in a licensed sex shop, a person who at any
place other than in a sex shop for which a licence is in force
under the relevant enactment—
(a) supplies a video recording containing the work, or
(b) offers to do so,
is guilty of an offence unless the supply is, or would if it
took place be, an exempted supply."
According to the prosecution, both firms had offered or sold
classified material on-line, over the phone or by mail order, and
were therefore in breach of the Act.
Last year, Liverpool Magistrates agreed, and fined Interfact
£3,000 for one offence of supplying and £2,000 for one offence of
offering to supply material in breach of the Act, while Pabo was
fined £2,500 in respect of one offence. The firms were also found
liable for over £22,000 and £25,000 respectively in prosecution
costs.
The companies appealed, arguing that any sales, or any offers to
sell, of classified material took place in their shops, because
that was where the orders were received, packaged and sent out, and
from where catalogues were dispatched. The sales did not occur at
the place where the items were actually delivered, and therefore
they were not in breach of the Act.
The High Court did not agree. It chose to use a wide meaning for
the term "supply" and focused on the purpose of the
legislation.
"We have no doubt that one of the main reasons for the
restriction is to ensure that the customer comes face-to-face with
the supplier so that there is an opportunity for the supplier to
assess the age of the customer," wrote Lord Justice Maurice Kay,
giving the opinion of the Court. "It is a disincentive to a visibly
under age customer to seek out the forbidden material."
He continued:
"The purpose of protecting young children and preventing them
coming into the possession of classified video recordings and
thereafter being viewed by any young person or person under the age
of 18, will be undermined if the supplier can be regarded as
relieved of his obligation to fulfil the terms of the
classification by making the supply in a way in which it can be
contemplated that opportunities will exist for the video to come
into the possession of those outside the terms of the
classification before it has been supplied to the other party to
the transaction."
An argument that in restricting the firm's ability to sell the
products at a distance the Video Recordings Act was in breach of
the right of free speech, enshrined in the Human Rights Act, was
also given short shrift. The Court had no difficulty in finding
that the restrictions were "lawful, necessary and proportionate",
and therefore not in breach of the Human Rights Act at all.
Finally, the firms argued that their businesses would be
affected if they were not allowed to sell the R18 products on-line,
over the phone or by mail order, because purchasers would simply
turn to foreign firms to buy the material. But the court was
unmoved.
"It is no answer to say that the restrictions can be
circumvented," said the court. Even if the material was available
elsewhere, the mere fact that the legislation prohibits the
distance selling of explicit recorded material in the UK makes it
more difficult for a UK minor to obtain it.
