A Q&A (and Behind-The-Scenes) Guide on the Legal Reforms Regarding Artistic Censorship

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      Article 163 of the Criminal Code  (Vilification of the Roman Catholic Apostolic Religion) – REPEALED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      Article 164 of the Criminal Code (Vilification of other cults tolerated by law) – REPEALED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      Pornography and Obscenity Regulations 1975 (Subsidiary Legislation 9.05) – REPEALED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

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.


Dr. Andrew Sciberras

Posted in , , , , . Bookmark the permalink. RSS feed for this post.

Blogger templates


Swedish Greys - a WordPress theme from Nordic Themepark. Converted by LiteThemes.com.