Obscenity Law in Nepal


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The concept of obscenity is relative. The definitions of obscenity vary from society to society and from country to country depending on the moral principles, decency codes, social setting of that particular country. In this presentation, Siromani Dhungana discusses Obscenity Law in Nepal and the possibilities of introducing specific obscenity law.

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Obscenity Law in Nepal

  1. 1. Obscenity Law in NepalSiromani DhunganaJournalist, Researcher & Media EducatorKathmandu, NepalEmail: meshiromani@gmail.com | siromanidhungana@gmail.comTwitter: siromanidFacebook: Siromani DhunganaLinkedin: Siromani Dhungana
  2. 2.  “Public morals differ widely. There isno universally applicable commonstandard.”- United Nations Human Rights Committee
  3. 3. Some definitions of Obscenity-I An obscenity is any statement or act whichstrongly offends the prevalent morality of the time- Merriam-Webster Dictionary obscenity, legal concept used to characterizecertain (particularly sexual) material as offensiveto the public sense of decency. A whollysatisfactory definition of obscenity is elusive,however, largely because what is consideredobscene is often, like beauty, in the eye of thebeholder. Although the term originally referred tothings considered repulsive, it has since acquireda more specifically sexual meaning.(From: http://www.britannica.com)
  4. 4. Some Definitions of Obscenity-II The concept of „obscenity‟ does not lend itself easily todefinition. Justice Potter Stewart of the US Supreme Court,despairing of the task of defining pornography, once famouslywrote: “I shall not today attempt further to define the kinds ofmaterial I understand to be embraced within that shorthanddescription; and perhaps I could never succeed in intelligiblydoing so. But I know it when I see it.”From: Article 19 (http://www.article19.org/pages/en/religion-morality-blasphemy-obscenity-more.html) It is not possible to find in the domestic law of the variousContracting States a uniform European conception of morals.The view taken by their respective laws of the requirementsof morals varies from time to time and from place toplace, especially in our era which is characterised by a rapidand far-reaching evolution of opinions on the subject.- From: European Court of Human Rights
  5. 5. Constitutionality of ObscenityLaw In order to determine whether any law is contraryto the right to freedom of expression asguaranteed under national constitutions andinternational laws, the following questions mustbe examined:1. Does the restriction interfere with the right tofreedom of expression as guaranteed under theConstitution?2. Is the restriction "prescribed by law" or "under theauthority of any law"?3. Does the restriction serve a legitimate objective ofsufficient importance to warrant overriding aconstitutionally protected right?4. Is the restriction reasonable, and necessary orjustifiable in a democratic society?(source: Obscenity Laws and Freedom of Expression:A Southern African Perspective , published by Article 19)
  6. 6. Obscenity Law in Nepal In Nepal, there is no separate act/lawpertaining to obscenity and lack ofspecific laws often creates problem toclaim whether something is obsceneor not. However, obscene contents are notallowed to publish or transmitaccording to some media related laws.Some Public (Crime and Punishment)Acts are exemptions.
  7. 7. Some Press Laws that ProhibitObscenity Some Public (Crime and Punishment)Act, 2027 BS (1970) National Broadcasting Act, 1993 Press and Publication Act, 1991 Electronic Transaction Act, 2006 Motion Picture (Production, Exhibitionand Distribution) Act, 1969
  8. 8. Obscenity Law in Nepal -1 Some Public (Crime and Punishment)Act, 2027 BS (1970) Section 2 of the Act is about „Prohibition againstsome public crimes‟ 2(c) of the act prohibits anyone “to break publicpeace or to make obscene show by using obscenespeech, word or gesture in public place.” The amendment of the act in 1982 further clarifiedthe same provision:“To print or publish any obscene materials by usingobscene language or by any word or picture which denotesobscene meaning; or to exhibit or sell or distribute suchobscene publication in public place other than the purposeof public health or health science.”
  9. 9. Obscenity Law in Nepal – 11 National Broadcasting Act 1993The Section 15(1)(a) of National BroadcastingAct 1993 prohibits the broadcasting of obsceneadvertisements.It prohibits the broadcasting of “vulgar materials.”
  10. 10. Obscenity Law in Nepal - 111 Press and Publication Act 1991◦ Section 14(e) of the Press and PublicationAct 1991 prohibits the publication ofmaterials in books, newspapers, andmagazines which are contrary to decentpublic behavior, morality, and socialdignity.◦ Section 16(e) empowers government toprohibit the importation of publicationsfrom abroad which are contrary to decentpublic behavior, morality and socialdignity.
  11. 11. Obscenity Law in Nepal - IV Electronic Transaction Act, 2006◦ Section 47(1) of Electronic TransactionAct, 2006 prohibits the publication orexhibition of materials contrary to publicmoral and decency.
  12. 12. Obscenity Law in Nepal - V Motion Picture (Production, Exhibitionand Distribution) Act 1969◦ Section 8 of the Cinema (Make, Release,and Distribution) Act 1969 empowers theCinema Censor Board to restrict therelease of any movie that contains sceneswhich are contrary to the public benefit,decency and morality.
  13. 13. Complexities of ObscenityLaws The global network of freedom ofexpression IFEX quotes executivedirector of Article 19 AndrewPuddephatt:"Protecting society against harm that mayflow from pornography and other obscenematerials must be balanced with ensuringrespect for freedom of expression andpreserving the free flow of information andideas."
  14. 14. International Instruments on Obscenity1. Convention for the Suppression of theCirculation of, and Traffic in, ObscenePublications concluded at Geneva on 12September 1923 and amended by theProtocol signed at Lake Success, New York,on 12 November1947.2. Agreement for the Suppression of theCirculation of Obscene Publications, signedin Paris on 4 May, 1910, amended by theProtocol signed at Lake Success, New York,4 May 1949.3. Agreement for the Suppression of theCirculation of Obscene Publications. Paris,4 May 1910.
  15. 15. First Amendment &Obscenity The First Amendment grants broad freedom to a licensee andits on-air performers to choose the content of speech.However, this freedom is not absolute. Obscene speech isnot protected by the First Amendment and its broadcast isprohibited. Broadcast speech is deemed obscene if (a) itappeals to the prurient interest, (b) it describes or depictssexual conduct in a patently offensive manner, and (c) takenas a whole, it lacks serious literary, artistic, political, orscientific value. Under this definition, speech is deemed toappeal to the "prurient" interest if it appeals to lustful ideas ordesires. Broadcasting obscenity can result in severe fines and thevery real possibility that the FCC will not renew a stationsbroadcast license. In addition, the FCC has previouslyindicated that any complaints involving obscene broadcastmaterial will be turned over to the Department of Justice forpossible prosecution. If convicted under federal law, a violatormay receive up to two years‟ imprisonment in addition to verysubstantial fines.(From: Missouri Broadcasters Association http://www.mbaweb.org/)
  16. 16. No clear Definition in Nepal At present, Nepal lacks clear definition of theterm obscenity. Laws that prohibit obscene content areexcessively vague and not clear enough toprosecute the guilty. Nepal‟s obscenity laws are based more onoffense rather than harm To provide protection against harm fromobscene materials while also respecting theprinciple of freedom of expression, the stateshould bring a new act which will set out aclear and harm-based definition of whatconstitutes obscene materials in respect tothe international standards.
  17. 17. ConclusionThe issue of obscenity and legitimacy of legalcontrols on sexually explicit material, both printand broadcast media, has to be defined clearly.Also, the government has to be prepared toprevent possible harm from obscene contentsin emerging new media. Striking the balancebetween the fundamental right to freedom ofexpression and the public interest in protectingchildren and safeguarding others from harm isindeed far from easy (Article 19). But thegovernment should do it without any delay tosafeguard vulnerable people and also tosafeguard international standards of Freedomof Expression.
  18. 18. Thank YouSiromani DhunganaLecturer (Journalism and Mass Communication)Madan Bhandari Memorial CollegeTribhuvan UniversityKathmandu, NepalEmail: meshiromani@gmail.com | siromanidhungana@gmail.comTwitter: siromanidFacebook: Siromani DhunganaLinkedin: Siromani Dhungana(Thanks to Kathmandu-based copy-editor Amendra Pokhrelamendrapokharel@gmail.com for his contribution)