Sex-line advertisements were not immoral

LAW REPORT 26 July 1996
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Armhouse Lee Ltd v Chappell and another; Court of Appeal (Lord Justice Simon Brown, Lord Justice Aldous, Lord Justice Schiemann) 23 July 1996

The provision of telephone sex conversations for reward did not constitute prostitution, and advertisements for such services were not so immoral that the court should, as a matter of public policy, decline to enforce the contracts under which they had been placed.

The Court of Appeal dismissed an appeal by the defendants, Anthony Chappell and ST Grid Ltd, against the judgment of Roger Titheridge QC, sitting as a deputy High Court judge on 19 September 1994, awarding the plaintiff, Armhouse Lee Ltd (in liquidation) over pounds 700,000 in outstanding fees for advertising services.

The defendants rented and operated telephone sex lines at premium rates. Their services were advertised, a page at a time, in magazines such as Penthouse, Playboy and Men Only.

One such page was annexed as part of the court's judgment. The page was divided into boxes, some featuring photographs of women in advanced stages of undress, apparently conversing on telephones. The pictures were overprinted with telephone numbers under headings such as "I'll talk dirty while you do it!" or "I am doing it while you do it too!" Other boxes simply listed telephone numbers with brief descriptions of the conversations offered, such as "Nympho talking to XXXX" or "Horny college girls". One box, headed "Dial an orgasm" featured the following instructions:

Our girls (or guys) will talk you through to orgasm in a special way. Have a bar of soap and a cup of warm water ready, also a rolled-up newspaper with a wet end and tissues.

These advertisements were placed by the plaintiff advertising agency, a company formerly owned and controlled by Mr Chappell, but now in liquidation. Its claim for outstanding advertising fees was being funded by the Paul Raymond Organisation, one of the publishers to whom it was indebted.

The defendants resisted the claim on the principal ground that their promotional material was so immoral or illegal that they ought not to have to pay for it: the courts should decline to enforce the contracts on public policy grounds.

Roderick Cordara QC and Richard Millett (Alsop Wilkinson) for the defendants; James Goudie QC and Clive Freedman (Amhurst Brown Colombotti) for the plaintiff.

Lord Justice Simon Brown said the defence was directed solely to the advertisements, and not at the services advertised. It was said that the advertisements were obscene or involved a conspiracy to corrupt public morals or public decency, and the contracts for placing them were contrary to public policy as tending to promote sexual immorality.

It was argued that the women providing the services were prostitutes. In R v McFarlane [1994] 2 All ER 283 it was held that a "clipper", a woman who offered sexual favours for reward but took the money without the least intention of providing the favours, was nonetheless a prostitute, albeit a dishonest one. Here, it was said, lewd discussion over the telephone, offering sexual excitement in return for payment, ought similarly to be found to constitute prostitution.

His Lordship rejected this. A finding of prostitution required at the very least both that the putative prostitute be at some stage in her client's presence, and that her offer, whether intended to be fulfilled or not, was of some direct physical contact of a sexual nature between them.

Contracts for sexually immoral purposes were contrary to public policy and contracts tending to promote sexual immorality were illegal and unenforceable. But what for this purpose was sexual immorality? Did it include sexual arousal over the telephone?

It was plain that no generally accepted moral code condemned these telephone sex lines. On the contrary, society appeared not merely to have accepted their existence but to have placed them under the express control of an independent regulatory body, ICSTIS, which published a code of practice approved by OFTEL.

Distasteful though these advertisements and the services they invited might be, they came nowhere near the point where the court should feel morally obliged to abjure its usual jurisdiction over contractual disputes.

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