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.
