0 INTRODUCTION
The Malaysian Federal Constitution grants the right to freedom of speech and
expression under A10(1)(a). However, this right is subjected to Clause 2(a). Thus by
virtue of the Clause 2(a), obscenity laws have been passed to restrict the freedom of
speech and expression in the interest of the morality of our country.
To delve into the topic of obscenity laws in Malaysia, this paperwork
discusses (1) the necessity of having obscenity laws in justifying the restriction on
freedom of speech and expression, (2) the laws that govern obscenity and (3) the
application or enforcement of obscenity laws. In this paperwork, the discussion on
the application or enforcement of obscenity laws is confined to Penal Code and Film
Censorship Act 2002. Besides, the position of obscenity laws in United States will be
analysed to be compared with the position in Malaysia.
2.0 THE MEANING OF OBSCENITY OR OBSCENE
Obscenity is a carefully crafted legal concept that characterises obscene
material.1 However, what amounts to obscenity has been something that is very hard
to be specifically defined 2 . An effort has been made in R v Hicklin 3 in defining
obscene in which judges considered a work to be obscene if any portion of the
material had a tendency to deprave or corrupt those whose minds are open to such
immoral influences, and into whose hands a publication of this sort may fall. The
court further ruled that it is up to a magistrate to judge this obscenity by looking at
the photographs, and not by taking the opinions of others on the point. This position
has been applied by the local court of Sim Poh Ho v PP4. Thus, it must be adhered
that what amounts to obscene is of the courts determination.
3.0 NECESSITIES TO REGULATE OBSCENITY LAWS AND THE IMPLICATIONS
OF OBSCENITY
Harm to the minors has been the main concern that leads to the existence of
obscenity laws. Due to the fact that children are not fully responsible moral agents
who can think maturely, in terms of the consequences of their acts, it is harmful to
the children if they consume pornography or are used as participants in obscene
films, videos or in obscene printed materials. Therefore, there is a need to regulate
obscenity laws as children lack the capacity to make choices with regard to sexual
matters due to their tender age which is not exposed to the reality of world where
they might get exploited easily. Besides that, it is necessary to prevent the
production of sexually explicit material involving the actual abuse of children to
protect the children who are still young and innocent. Regulation of obscenity laws is
important to curb the distribution of material which will incite adults to commit sexual
offences against children. In this world today, apart from adults, children are also
negatively influenced by pornography. To substantiate this point, there is a case
where an 11-year-old boy, who could have been acting out from what he had seen in
a pornographic movie, raped a 6-year-old girl in a babysitters home5 and another
case where a teenager who was obsessed with pornography raped his 5 year old
niece6.
The second implication of obscenity is moral harm to the society where it
depraves and corrupts those who produce or consume it. Moral harm is not an
unfamiliar idea as it is what most parents have in mind when they censor what their
children are allowed to see.7 Those obscene materials tend to encourage readers to
regard other people as mere objects of sexual interest, whose feelings and desires
do not matter, such as portraying women as sex objects to be used by men for their
own satisfaction. To view obscene materials is morally wrong as these materials
often exemplify and recommend such behaviour where, specifically, the viewing of
women as mere sex objects, rather than as active, full-fledged persons. Due to the
moral harm caused by obscenity, it is necessary to have obscenity laws to prevent
readers from being depraved and corrupted by sexually oriented publications. Apart
from that, laws prohibiting obscenity help to educate consumers of pornography that
those materials are morally bad and should avoid viewing or learning from
pornography.
Thirdly, the effect of allowing obscene materials to be distributed around freely
without any restriction exposes third parties to risk of offence or assault, namely,
violence against women or rape. Obscene materials, specifically, pornography,
encourages violence against women because pornography says that women want to
Suresh. (2013, August 27). Pornography obsessed teenager raped his 5-year-old-niece. Malaysia Edition.
Retrieved on 11 December, 2013 from http://www.malaysiaedition.net/pornography-obsessed-teenagerraped-5-year-old-niece/
7
Koppelman, A. (2005, May 5.) Does Obscenity Cause Moral Harm? Columbia Law Review, Vol. 105, 2005;
Northwestern Public Law Research Paper No. 05-02.
be hurt, forced, and abused8. Those materials also encourage consumers to think
that perpetrating sexual assaults is acceptable via scenes or acts in pornography
where women get raped and this mind set will tend to remain. Besides drugs and
alcohol addiction, one can get addicted to pornography too. A British study finds that
addiction to pornography leads to similar brain activity patterns found in alcohol and
drug addict9. A scientist, Dr. Valerie Voon said that when an alcoholic sees an ad for
a drink, their brain will light up in a certain way and they will be stimulated in a certain
way. They are seeing this same kind of activity in users of pornography 10 .
Preliminary findings in a separate study from the University of Sydney find that porn
addiction is on the rise, due to the ease of access via the internet and other new
technologies11. If the consumers of pornography get addicted to porn, it is likely they
will have a mind-set where perpetrating sexual assaults is acceptable and this would
endanger the females. Due to those implications, it is necessary to have obscenity
laws which will at least help to reduce crimes which might be induced by obscenity.
4.0 RELATED LAWS
The few laws which govern obscenity in Malaysia are Penal Code,
Communications and Multimedia Act 1998, Printing Presses and Publications Act,
Indecent Advertisements Act and Film Censorship Act.
Under s292 of Penal Code which governs on sale,etc., of other books, etc., it
is stated that whoever who sells, distributes or possesses any obscene object like
Dworkin, A. (1981). Why Pornography Matters to Feminists. Andrew Dworkin Online Library: Letters from a
War Zone. Retrieved from http://www.nostatusquo.com/ACLU/dworkin/WarZoneChaptIVB.html
9
(2013, September 25). Porn addiction changes the brain. Free Malaysia Today. Retrieved on 11 December
2013 from http://www.freemalaysiatoday.com/category/leisure/2013/09/25/porn-addiction-changes-thebrain/
10
Ibid
11
Ibid
12
S.292(a)
S.292(b)
14
S.292(c)
15
S.292(d)
16
S.292(e)
17
Act 588
18
Act 301
13
Lastly, section 5(1) of the Film Censorship Act 2002 prohibits the possession
of any film or film-publicity material which is obscene or is otherwise against public
decency and it is an offence punishable under s5(2) of the Act.
5.0 APPLICATION
5.1 PENAL CODE
Penal Code19 lays down some provisions which govern obscenity including
s292, s293 and s294. For the purpose of discussion, the paperwork will focus on
s292 which contain 5 provisions that govern obscene objects. Previously, this
provision has been interpreted as being confined to cases involving obscene objects
which are obscene on sight such as books, pamphlets, painting and so on. 20
However, this ambit has been widened to include objects which are not obscene on
sight such as films and videos as being held in the case of Mohd Rizal v PP.21
It is pertinent to note that possession of an obscene object alone will not make
a person liable under s292 of the Penal Code. As mentioned in the case of Lim Hock
Thai v PP22, the possession must be for the purpose of sale, lets to hire, public
exhibition, circulation or distribution as provided under s292(a). As decided in the
case of KS Roberts v PP23, knowledge is not needed to convict someone for the
offence for this offence as it would place intolerable burden on the prosecution. In
this case, although it was not proven that the retailer had any knowledge of whether
the magazine he was selling contain obscene article, he was convicted. Besides that,
the court also held that to be liable for selling obscene book, it is sufficient that only a
part of it is obscene.
19
Act 574
Lim Hock Thai v PP [1981] 2 MLJ 212
21
[2008] 3 MLRH 675
22
Ibid.2.
23
[1970] 2 MLJ 137
20
S292(b) provides that a person will be liable for importing or exporting any
obscene object for the purposes mentioned above. A person who takes part or
receives profits from any business involving obscene objects will be punished as well
as stipulated under s292(c).
Apart from that, a person who advertises or makes known by any means that
any person is engaged or ready to engage in any acts provided above will be held
liable under s292(d). Besides, advertisements that reveal that obscene object can be
procured from or through any person are also prohibited. The test to make the
publisher of the advertisement liable is discussed in the case of Sim Poh Ho v PP24.
In this case, the publishers advertised in the newspaper an advertisement which was
alleged to be revealing the person from whom the obscene objects can be procured.
The court acquitted the accused on the ground that the words of the advertisement
are not clear enough to make a person certain that he or she will obtain an obscene
object upon answering the advertisement. Thus, the test is that the wordings used in
the advertisement must be in ordinary and natural meaning produce the implications
that whoever answers that advertisement will definitely procure an obscene object.
As provided under s292(e), an attempt or offer to do any act as mentioned
above is considered as an offence. Section 292 of the Penal Code as discussed
above does not apply to obscene objects which are used bona fide for religious
purposes. To conclude, whoever found guilty under s292 will be punished with
imprisonment for a term which may extend to three years, or with fine or with both.
24
Act 620
S5(1)(a) of Film Censorship Act
27
S5(1)(b) of Film Censorship Act
28
Mohd Rizal v PP [2008] 3 MLRH 675
29
[2010] 8 MLRH 221
30
[2008] 3 MLRH 227
26
was acquitted as the untitled confiscated VCDs and DVDs were not marked and
there was a possibility that the materials are mixed up with other materials kept in
the store where the second element was no fulfilled. Another reason was due to the
random screen testing of confiscated materials carried out by the officers where it
cannot be concluded that the confiscated materials are obscene materials. The court
regarding this element applied the case of PP v Chung Wan Li31where it was held
that the screening of each and every of the VCDs is necessary to determine
whether they were obscene films.
Again in PP v Kok Seong Yoon, the accused was acquitted though it can be
proven that he had control over the confiscated DVDs which were alleged to be
pornographic. However, the court, applying the case of PP v Chung Wan Li, held
that there was no screen testing carried out at all during the trial to prove all
confiscated DVDs are obscene, as required to establish a prima facie case under
s5(1) of FCA and thus, the accused was discharged.
However, there are exceptions where under s2(1) of FCA, this Act does not
apply to the Federal Government or the Government of any State or under s2(2).
This Act is also not applicable to any film transhipped within Malaysia for delivery at
a place outside Malaysia 32 or films which are not intended to be circulated or
distributed in Malaysia33.
6.0 THE POSITION IN UNITED STATES
The First Amendment to the United States Constitution provides that
Congress shall make no law ... abridging the freedom of speech, or of the press. It
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