The AG’s office has appealed against the Realtà decision that had acquitted Mark Camilleri and Alex Vella Gera. Insofar as reporting and public reaction is concerned we are back to square one – a general feeling of disgust and anger at the fact that this kind of case still exists in this day and age.
James Debono explored the angle of “political responsibility” in his blog on Maltatoday and struggled to create a causal link between the mechanics of the application and interpretation of the law by the judicial branch and the pursuance of the law by the executive. In any other case having the government weighing in on the AG’s decision to appeal would have led many an observer to cry foul. In this case the absence of any such pressure is enough to indict the government with the accusation of drifting “to the loony right”.
There’s a less emotional and more rational line to be patiently analysed beyond the confusing smoke of war. That line sees the Realtà case as a test case for the definition of the concepts of “obscenity and pornography” in our courts. We are not the first and will not be the last society to examine these standard and the laws continue to evolve ever since Edmund Curll was convicted in 1727 for publishing Venus in the Cloister or The Nun in her Smock under the common law offence of disturbing the King’s peace (see Wikipedia below).
In many ways the AG’s appeal was inevitable. The original judgement, although positive insofar as the anti-censorship movement is concerned, did not exhaust all questions on the matter. It is not just the the definition of what is obscene that remains fluid but also the exception that is allowed – in this case literature for the public good:
[…]Izda oggett ma jitqiesx li hu pornografiku jew oxxen jekk dan ikun fl-interess tax-xjenza, tal-letteratura, ta’ l-arti jew tat-taghlim jew ta’ xi ghanijiet ohra ta’ interess generali, u sakemm dan ikun tghall-gid pubbliku. – Criminal Code, article 208(3)
The Magistrate’s Court found that Li Tkisser Sewwi does not in any way fall under pornography or public obscenity definitions “ghaliex bl-ebda mod ma jista’ jitqies li l-iskop jew l-ghan tal-kitba huwa li jqanqal eccitament sesswali jew li jikkorrompi qarrej ordinarju”. (in no way can it be considered that the aim of the writing was to sexually excite or corrupt an ordinary reader). It also found that “the fact that writing is shocking or provokes disgust in the reader does not qualify it as obscene or pornographic”. The Court further found that the prosecution had failed to prove any damage caused by the writing.
The Realtà case is an acquittal for failure to prove that the writing in question qualifies as obscene or pornographic. It leaves many questions open. What is obscene and pornographic? More than that, by finding an absence of pornographic or obscene characteristics the Court did not need to engage with the question of when pornography or obscenity is (in the words of the abovequoted article 208(3) exception) “in the interest of (…) literature (…) and considered to be in the general public’s interest”.
The AG’s appeal might oblige the Appeals Court either to tackle the issue or to confirming the Magistrate Court’s decision. In both cases we could only have more clarity on the state of the law in question. Appealing to the government to intervene – or laying the blame for the appeal at the foot of the government skirts the question and avoids clear answers.
If any pressure is to be made on any part of our system of the state, it is on our legislature – and its lack of reactivity to define further the standards of obscenity and pornography that are “acceptable” in our society. I fear that this kind of question will not only stump the loony right but also the false left in this country of ours that has hitherto proven to be very comfortable with cheap talk but unable to grasp the bull by the horns and suggest concrete action.
We may have a loony right government but we also have a fake left machine that is still to discover that its core of pro-British, religious conservatives will prove to be the downfall of all its progressive rhetoric. Then again none of this might happen if the Appeal Court’s interpretation satisfies all and sundry. Who knows… the mechanics of the separation of powers could actually work!
From Wikipedia:
Laws on obscenity and sexual content
Obscenity law in England and Wales is currently governed by the various Obscene Publications Acts, but obscenity laws go back much further into the English common law.
The conviction in 1727 of Edmund Curll for the publication of Venus in the Cloister or The Nun in her Smock under the common law offence of disturbing the King’s peace was the first conviction for obscenity in Great Britain, and set a legal precedent for other convictions.
A defence against the charge of obscenity on the grounds of literary merit was introduced in the Obscene Publications Act 1959. The OPA was tested in the high-profile obscenity trial brought against Penguin Books for publishing Lady Chatterley’s Lover (by D. H. Lawrence) in 1960. The book was found to have merit, and Penguin Books was found not guilty — a ruling which granted far more freedom to publish explicit material. This trial did not establish the ‘merit’ defence as an automatic right; several controversial books and publications were the subject of British court cases throughout the 1960s and into the 1970s. Last Exit to Brooklyn, a 1964 novel by American author Hubert Selby, Jr. was subject of a private prosecution in 1966.
There is a substantial overlap between legal erotic literature and illegal pornography, with the distinction traditionally made in the English-speaking courts on the basis of perceived literary merit. Purely textual pornography has not been prosecuted since the Inside Linda Lovelace trial of 1976. However, in October 2008, a man was charged, but later cleared, under the Obscene Publications Act for allegedly posting fictional written material to the Internet describing kidnap, rape and murder of pop group Girls Aloud. In late August 2005, the government announced that it plans to criminalise possession of extreme pornographic material, rather than just publication.
Almost all adult stores in the UK are forbidden from having their goods in open display under the Indecent Displays Act 1981, which means the shop fronts are often boarded up or covered in posters. A warning sign must be clearly shown at the entrance to the store, and no items can be visible from the street. No customer can be under eighteen years old. The Video Recordings Act 1984 introduced the R18-rated classification for videos that are only available in licensed sex shops, but hardcore pornographic magazines are available in newsagents in some places. The Ann Summers chain of lingerie and sex shops recently won the right to advertise for workers in job centres, which was originally banned under restrictions on what advertising could be carried out by the sex industry
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- The Supreme Court doesn’t think “fag” is profane? (salon.com)
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