Vous êtes sur la page 1sur 12

1.

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

S.D. Ross,The Law of Journalism and Mass Communication, 2011(3rd Edition)


Justice Potter Stewart said, "I can't define pornography, but I know it when I see it." In Jacobellis v. Ohio
(1964)
3
L.R. 2 Q.B. 360 (1868)
2

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

[1966] 1 MLJ 275


Murali, R.S.N. (2013, November 30). 11-year-old boy rapes six-year-old. The Star Online. Retrieved on 11
December, 2013 from, http://www.thestar.com.my/News/Nation/2013/11/30/11yearold-boy-rapessixyearold-Cops-probing-what-could-be-the-youngest-sex-predator-in-the-country.aspx
5

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

book or painting12 or imports, exports or conveys any obscene object13 or involves


himself in any business relating to obscene objects14 or advertises by any means the
person who is involved in any act which is an offence under this section 15 or lastly,
offers or attempts to do any act which is an offence under this section16, shall be
punished with imprisonment, or with fine, or with both. However, there is an
exception provided in this section and will be discussed further in the next subtopic.
Under s233(1) of the Multimedia and Communications Act 199817, a person
who uses the network facilities or network service or applications service to make,
create or solicit and initiate the transmission of any comment, request or other
communication which is obscene or indecent and done with the intention to annoy,
abuse, threaten or harass another person commits an offence.
Next, s4 of Printing Presses and Publications Act 198418 which governs on
act of printing press used for unlawful purpose states that any person who prints,
produces, causes or permits to be printed or produced by his printing press or
machine any publication or document which is obscene or otherwise against public
decency shall be guilty of an offence.
Section 3 of the Indecent Advertisements Act 1953 which governs indecent or
obscene pictures or printed or written matter states it is an offence to affix any
picture or printed or written matter which is of an indecent or obscene in nature, on
anything in public area for public view.

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

[1966] 1 MLJ 275

5.2 FILM CENSORSHIP ACT


The Film Censorship Act25 which governs on obscene films under s5 states
that no person shall possess26 or circulate, exhibit or sell27 any film or film-publicity
material which is obscene or is otherwise against public decency. FCA exists
specifically to cater for films of an obscene or lewd nature but it does not mean
prosecution under the Penal Code under the provisions of section 292(a) is
precluded28. Contrary to Penal Code where possessing an obscene object is not an
offence, it is an offence to possess an obscene film under FCA or else that person
shall be punished under s5(2) of the same Act.
Possession was discussed in the case of Low Ming Kiat lwn PP29 where the
court held that the fact that appellant had care and control over the counter where
the confiscated materials were exhibited and the close proximity between appellant
and the confiscated DVDs too, it could be inferred that the accused had possession
over the pornographic DVDs which were confiscated.
However, possession is not the sole requirement under s5 of FCA. In the case
of PP v Lee Swee Sing30, it was mentioned that to establish a prima facie case under
s5(1)(a) of FCA, prosecutor must prove that the accused had possession over the
films which were confiscated, the identity of the confiscated materials must be
ascertained when brought up to court and all of the confiscated materials(DVDs and
VCDs) are obscene materials. However, the accused in that case, even possession
was proven by being at the stall at all material times with the confiscated materials,
25

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

31

[2006] 2 MLJ 170


S2(2)(b) of Film Censorship Act
33
S2(2)(c) of Film Censorship Act
32

restricts government less in that it provides no protection to some types of speech


and only limited protection to others.34. Obscenity apparently is unique in being the
only type of speech to which the Supreme Court has denied First Amendment
protection without regard to whether it is harmful to individuals to protect the social
interest in order and morality.
The Supreme Court has allowed one exception to the rule that obscenity is
not protected by the First Amendment: one has a constitutional right to possess
obscene material in the privacy of his own home35. This is different from Malaysia:
it is illegal to possess obscene film even for private use under Film Censorship Act.
To make someone liable under obscenity laws in United States, the court has
established a test which must be fulfilled. This test is being referred to as the Miller
test or the three-part test36.
(a) whether the average person applying contemporary community
standards would find that the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
Referring to this test, to be obscene, pornography must, at a minimum, depict or
describe patently offensive hard core sexual conduct. This is different from the
position in Malaysia where such test is not being applied. This can be explained
by the fact that the community standards and values are extremely different in
Malaysia as compared to the United States. Furthermore, the religion of the
Federation of Malaysia is Islam which views pornography as indecent and terms
it as faahisha(shameful deeds) in the Quran regardless of whether the
34

Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).


United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).
36
Miller v. California, 413 U.S. 15, 27 (1973).
35

10

pornography is of patently offensive or not.37 To conclude, obscenity laws vary


from a country to another, depending on its local perceptions, standards and
values.

37

n.d, Defining pornography in Islam, Retrieved From


http://www.zawaj.com/articles/pornography_whatis.html.

11

7.0 ANALYSIS AND CONCLUSION


The availability of pornography films online has largely reduced the
effectiveness of the obscenity laws in discouraging the people from watching
pornography. In our country, it is correct to say that we can equate pornography with
obscenity. The existence of variety laws reflects our position that we are against
pornography as it is against the values and morality of our country. However, online
viewing of pornography is not illegal in our country. The websites are accessible.
Thus, the existence enforcement of obscenity laws has been questioned for they are
to certain extent, obsolete and impractical.
Restriction is a must to freedom of expression for unfettered freedom is
anarchy. Thus, obscenity laws are here to stay to avoid our people from being
mentally corrupted. Having said so, it is highly dependent on self-control and the
guidance from the parents to deter our young generations from being swayed to
immorality by obscenity. Awareness of the public of the effects of obscene materials
must be created. Obscenity laws must also be reviewed from time to time to ensure
they are updated and practical; in line with contemporary social values and
standards.

12