Q.
What shall the reform change and how?
The reform is essentially based on two
documents
1.
Legal
Notice entitled Criminal Code Amendment Act 2015; and
2.
Extreme
Pornography Regulations 2015
The Criminal Code Amendment Act 2015 shall
primarily amend the following:-
1.
Article 163 of the Criminal Code (Vilification of the Roman Catholic Apostolic Religion) – REPEALED
2.
Article 164 of the Criminal Code (Vilification
of other cults tolerated by law) – REPEALED
3.
Article 165 of the Criminal Code (Obstruction
of religious services) – significantly amended by removing the
distinction between the Roman Catholic Apostolic faith and “other religions
tolerated by law” whilst considerably reducing criminal punishment to the level
of a contravention (ammenda), save
where the obstruction of religious functions are accompanied by violence;
4.
Article 208 of the Criminal Code (Offences relating to pornographic or
obscene articles) – completely substituted by a new crime,
largely modeled on the UK “Indecent
Displays (Control) Act 1981”. The new article shall penalize the display of
pornographic material in public places by means of a fine (contrary to UK law, imprisonment
is excluded) not exceeding €1000. The display of such material, however, shall
be permitted under certain circumstances or controls, namely where the display
is against payment for persons over eighteen years of age and/or where the
establishment gives adequate forewarning to the public by affixing a specific notice.
This article does not apply:
a.
To
films and theatrical productions (because these are governed by their own
specific laws and/or regulations);
b.
To
displays in museums and art galleries (erotic art/sculpture, etc. exhibited in
galleries and museums shall not constitute an offence under this article);
c. To displays of the actual human body (so
these reforms will not be regulating gentleman’s clubs or by any means
permitting live nudity/sex shows – these will have to be regulated by other
laws).
The new Article 208
shall be entitled Display of pornographic
material in public places
5.
Pornography and Obscenity Regulations 1975 (Subsidiary Legislation 9.05) – REPEALED
6.
Sub-article (3) of Article 82 of the
Customs Ordinance (Power to prohibit imports) – minor amendment whereby the words
“pornographic or obscene character” have been deleted throughout and
substituted with “extreme pornographic images”. This article currently empowers
the Commissioner for Customs to prohibit and/or destroy imported material,
which he suspects to be pornographic or obscene.
Q.
Will the reform be introducing new laws or regulations?
Yes, the reform is proposing to introduce
two new articles in the Criminal Code and new regulations on extreme
pornographic images:-
1.
Article 208D of the Criminal Code (Offences
relating to extreme pornographic images)
- This law is modeled on the reforms introduced by the UK Criminal Justice and Immigration Act
2008 (Article 63 et seq thereof) and
is structured on the existing article 208. It shall be a crime, punishable by a
fine not less than €3000 but not exceeding €6000 or to imprisonment for a term
not less than 18 months but not exceeding three years, or to both such fine or
imprisonment, to produce, manufacture, distribute, trade, etc. in extreme pornographic images, so defined
in specific regulations drawn up by the Minister for Justice.
The proposed law
allows for certain defences to be put up by a person accused, such as that
he can prove that such images were sent to him or where in his possession
without his knowledge or consent; or that he did not see such images nor had he
cause to suspect that material in his possession contained such images.
2.
Article 208E of the Criminal Code (Non-consensual
disclosure of private sexual photographs and films) – it shall now be a
crime, punishable by a fine of not less than €3000 but not exceeding €5000 or
to imprisonment for a term not exceeding 2 years (or to both such fine and
imprisonment) for a person to disclose (share with others) private
sexual/intimate photographs or films of another person without that person’s
consent. Such acts are colloquially referred to as revenge porn.
This crime is quite
innovative in scope and substance as it seeks to prevent and condemn, perhaps
for the first time in the history of Maltese legislation, the act of causing
actual emotional or psychological harm caused to others. It is innovative also
in the sense that such law is still the subject of debate in other European
countries.
This article also
provides certain defences for the accused.
3.
Extreme Pornographic Images Regulations, 2015 – These regulations seek to replace the now obsolete Pornography and
Obscenity Regulations, 1975 and is mostly modelled on the Scottish equivalent of
the English Criminal Justice and Immigration Act 2008, i.e. the Criminal Justice and Licensing (Scotland)
Act 2010. The regulations define what is meant by “extreme pornographic image”,
and particular offers a coherent and realistic definition of pornography: -
Pornographic
– in essence, an image is
deemed to be “pornographic” if it is of such a nature that it must reasonably
be assumed to have been produced solely or principally for the purpose of sexual arousal. Under the present
Pornography and Obscenity Regulations, pornography is primarily defined as the
exploitation of, or undue emphasis on sex, crime violence, cruelty or horror
(!?). Furthermore, in determining whether an image or series of images is
pornographic, reference must be made to the context, narrative and sounds
accompanying such image or series of images. If, when taken as a whole, that
image or series of images provides a context that is not of a nature deemed to
have been produced solely or principally for the purpose of sexual arousal that
image or series of images shall not be pornographic. In simpler terms, the prosecution may not
pick on one scene, passage or word, if such scene, passage or word forms part
of a larger narrative that is not primarily sexual – even if that scene,
passage, or word – when taken by itself – would deemed to be, by any rational
person, pornographic.
Extreme – an image is extreme if it portrays in an explicit and realistic manner
acts that threaten a person’s life, grievous injury, rape, necrophilia and
bestiality
Image – an image is defined as any image, whether still or moving as well as
data stored electronically and which is capable of conversion into a still or
moving image
The regulations do not apply to any images
that form part of material, whether physical or electronic, that serve the
public good on the grounds that it is in the interests of science, literature,
art or learning (the public good defence).
Q.
The proposed laws seem to revolve mainly around pornographic images and display
of material. What about literature (words)? Will these be illegal?
Consider it this way. The law criminalizes
certain images or the public display
and disclosure of pornographic material (in violation of the conditions set out
above). It does not, however, criminalize the written word that is normally
found within the hard (or soft) covers of books and magazines. Indeed, the new
article 208 excludes any material “which is not exposed to view”. Furthermore,
literature generally tends to convey meanings and emotions that are not purely
and solely sexual or otherwise primarily intended for sexual arousal. This
would absolve the writer or publisher from disseminating pornographic material. Always remember the context: “when taken as
a whole”.
Naturally, everything has to be considered
according to the particular facts, and on a case-by-case basis, but whatever
the case the reforms are a marked difference from the existing laws which
criminalize any “obscene print, painting, photograph, film, book, card or
writing, or any other pornographic or obscene article whatsoever”, arguably
even the simple private possession thereof.
Q.
What about the offence of obscene libel under the Press Act?
The original draft proposals sought to
repeal the offence of obscene libel (Article 7 of the Press Act). The Ministry
for Justice, Culture and Local Government has, however, decided not to include
this under this particular reform but shall tackle it through a holistic and ambitious
reform of the Press Act itself, particularly reforms to libel law. It is
expected that the offence of obscene libel shall be completely repealed.
Q.
What is the rationale for the reform? How does it compare to the reforms in
theatre and film enacted in 2012?
The reforms proposed and ultimately enacted
in 2012 went a long way in liberating theatrical performances and film (cinema)
from the arbitrary clutches of the censor where a few men and/or women (perhaps
just the one) decided for you what to see and not see – solely guided by what
they, he or she, decided was morally acceptable. It can be said, therefore,
that the purest form of censorship, or censorship a priori (before the fact, a.k.a. “prior restraint”) has been effectively
abolished. Truth be told, and technically speaking, certain films may still be
banned from public viewing (for example by not being classified; and therefore
not fit for view) but since 2012 (when classification, rather than censorship,
became the rule) this is hardly ever the case. Needless to say these reforms
were an obvious and logical reaction to the infamous Stitching judgment.
Nonetheless certain laws, precisely the ones delineated above in this
Q&A, could still be used – and have indeed been used – to punish artists,
writers, satirists and so on for vilifying/mocking religion or for producing
obscene content. To name a few examples:
- · In 2010 a certain Alexander Baldacchino was was convicted under Article 208 for the exhibition of pornographic films in the City Lights Theatre (Valletta).
- · A year prior, Mark Camilleri and Alex Vella Gera (the famous Li Tkisser Sewwi /Realta’ case) were accused under article 208 of the Criminal Code and article 7 of the Press Act for publishing and writing (respectively) an obscene short story. They were ultimately found not guilty but had to endure the ordeal of criminal prosecution for at least three to four years. In this case the Attorney General argued that it is the Court alone which should determine what is obscene, without reference to any expert testimony: meaning that forensic/expert evidence is not allowed in cases such as these.
- · In bygone times (1960) the police had prosecuted a person for playing the song called “Nuda” by Domenico Modugno on a jukebox in a cafeteria in Sliema. Another for sharing nudist paintings with his friends (1954). They were both found guilty.
So it was felt, and strongly argued by us
(Mark Camilleri and myself who worked on this reform) that on
the basis of laws such as these, Maltese artists and writers rarely dared to
challenge the status quo. Whilst one was technically free to write, to paint,
to sing and to publish that painting, writing, or song, the artist could yet be
ensnared “by the policeman’s intrusive thumb and the judge’s heavy hand”
(Supreme Justice Potter
Stewart, USA). With these laws, the artist risks going to jail dare he stray into the realm of "taboo", and this would lead him
to censor himself: auto-censorship or
censorship a posteriori (after the fact).
We sought therefore to eliminate this form
of post-censorship as far as possible. In so doing, we were guided by the following
key principles (listed in no hierarchical order):
1.
The
recognition that concepts/understanding of morality change with time (and
space) and the law ought to reflect such societal changes. The law is, after
all, a living instrument;
2.
The
simple idea that the State ought not to keep acting as the moral custodian (custos morum) of society. Reasonable
consenting adults should be at liberty to see, read or listen to whatever they
desire provided that no actual harm
is caused to others. Rather the State should ensure that the public is given
prior information or knowledge as to the content of certain material – the
choice is then up to the viewer/reader or listener;
3.
That
criminal law should ultimately be based on objective, scientific, forensic
evidence and not on mere value-judgments: subjective assumptions or
suppositions of what is morally acceptable or unacceptable;
4.
That
criminal law should seek to punish, as far as possible, actual harm, proven beyond all reasonable doubt. Thus, protecting
the sexual innocence of minors and criminalizing content that is so (extremely
and realistically so) violent, repugnant, degrading, humiliating as well as the
freedom of religious expression and assembly are public goods that ought to be
protected – and have indeed been protected. This is why we also sought to protect persons from actual psychological harm/distress
caused by “revenge porn”: acts that may lead to depression and even suicide.
5.
The notion that
any limitation of rights, such as free speech, ought to be proportional to the
public good sought to be protected (protection of morals and so on).
6.
That subjecting
certain material to criminal trial is ultimately self-defeating. To quote
Geoffrey Robertson Q.C. “‘seek to suppress a book by legal action because it tends to
corrupt...the publicity attendant on its trial will spread that assumed
corruption far more effectively than its quiet distribution.’”
7.
The fundamental
idea laid down by the European Court of Human Rights way back in 1976, namely
that freedom of expression “is applicable not only to
"information" or "ideas" that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb the State or any sector of the population” (Handyside vs UK).
Q. How can one
justify vilifying the Roman Catholic faith, the national majority religion, but
punish hatred towards minorities?
To vilify and to incite hatred or violence are very different things.
Vilify is generally defined as “to say or write very harsh and critical things about (someone or
something)” (Merriam-Webster), whereas incite is defined as “to cause (someone) to act in an angry,
harmful, or violent way” or “to cause (an angry, harmful, or violent action or
feeling)” (Merriam-Webster).
Under article 82A of the Criminal Code it
is a crime to incite hatred or violence against other persons because of their
race, ethnicity, gender, sexual orientation, religious beliefs, and so on. This has not been touched by the
proposed reforms.
So once again, the notion of actual harm
comes into play in the distinction of being criticized or offended (on the
basis of your beliefs) and actually being intimidated/threatened or otherwise
put into peril/manifest jeopardy (because of your beliefs).
It is therefore posited that by ridiculing
your beliefs by words or depictions, usually to express an idea or message,
such as anger at the Catholic Church’s dogmatism on condom-use, homosexuality,
inaction/silence on paedophilia by the clergy – or,conversely, by ridiculing
the atheist’s own dogmatism on the non-existence of God, Church-bashing or (what one may perceive
and believe to be) lack of values, I am not placing you, nor your belief/disbelief
in any harm.
For further insight into this subject see Guardian opinion piece here.
For further insight into this subject see Guardian opinion piece here.
Q. Is there a
difference between blasphemy and vilification of religion?
The difference, if any, is very subtle. Blasphemy is typically
defined, as “something
said or done that is disrespectful to God or to something holy”
(Merriam-Webster). Strictly speaking, therefore, to vilify a religion is akin
to being disrespectful to that religion. Perhaps a simpler distinction can be
made between doing or saying something disrespectful to God or something holy
and rude/uncouth utterances of God/holiness said in vain (in Maltese: dagħa).
The act of uttering obscenities and
performing lewd acts in public is still punishable as a contravention under
article 338(bb) of the Criminal Code. Article 342 of the Criminal Code specifies
further that where those obscene utterances consist in blasphemy (dagħa) the
lowest punishment is an amenda of
€11.65 and the maximum is imprisonment for three months.
However, that article (338(bb)) is
qualified in the Maltese text by the phrase “għad li jkun xurban”. The English
text is somewhat different and states “even though in a state of
intoxication…”. It is to my mind unclear, therefore, whether such contravention
is qualifying whether a person is to be intoxicated or not.
This article was not touched by the reform.
I confess that it may be correct to say that it was missed by the undersigned
and Mark and I therefore encourage the legislator to look into it, since it
could still be used against the arts. I would advocate complete repeal save for
the part concerning lewd acts in public.
Q. Will these
reforms permit live nudity or sex and/or sex shops?
Displays of the actual human body are not
covered by the proposed reforms – to the contrary it is explicitly stated in
the proposed (new) Article 208 that this article is not to be interpreted as
permitting any show of live sexual activity involving the sexual organs made
solely or principally for the purpose of sexual arousal. Gentleman’s clubs,
therefore, are not strictly speaking subject to these laws and such
establishments still require ad hoc regulation,
which – I am informed – the Government is looking into.
Sex shops selling pornographic content or
materials, on the other hand, will be permitted under the proposed reforms
provided an adequate warning notice (the wording of which is specified in the
law) is displayed and that nothing pornographic is publically displayed. Having
said that, it stands to reason that such shops ought to be subject to special
police licensing (regulating, for example, the locations where such shops may
be opened). Moreover, the commercial viability of such shops is somewhat
dubious when such content may be viewed, accessed or purchased in complete
privacy at the click of a button. It is important to highlight that the main
scope of these reforms was not the legalization of porn shops as some sections
of the media regretfully highlighted. This is merely an ancillary consequence
of the main objective(s) that have (hopefully) been highlighted above.
DISCLAIMER: THE ABOVE Q&A SOLELY REPRESENTS THE UNDERSIGNED’S
PERSONAL INTERPRETATION, VIEWS AND OPINIONS AND NOT OF ANY PUBLIC OR GOVERNMENTAL AUTHORITY.
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