Obscenity Law in Nepal

Siromani Dhungana Journalist, Researcher & Media Educator Kathmandu, Nepal Email: meshiromani@gmail.com | siromanidhungana@gmail.com Twitter: siromanid Facebook: Siromani Dhungana Linkedin: Siromani Dhungana

Public morals differ widely. There is no universally applicable common standard.

- United Nations Human Rights Committee

Some definitions of Obscenity-I

An obscenity is any statement or act which strongly offends the prevalent morality of the time - Merriam-Webster Dictionary obscenity, legal concept used to characterize certain (particularly sexual) material as offensive to the public sense of decency. A wholly satisfactory definition of obscenity is elusive, however, largely because what is considered obscene is often, like beauty, in the eye of the beholder. Although the term originally referred to things considered repulsive, it has since acquired a more specifically sexual meaning. (From: http://www.britannica.com)

Some Definitions of Obscenity-II

The concept of obscenity does not lend itself easily to definition. Justice Potter Stewart of the US Supreme Court, despairing of the task of defining pornography, once famously wrote: I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.
From: Article 19 (http://www.article19.org/pages/en/religion-moralityblasphemy-obscenity-more.html)

It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject.
- From: European Court of Human Rights

Constitutionality of Obscenity Law

In order to determine whether any law is contrary to the right to freedom of expression as guaranteed under national constitutions and international laws, the following questions must be examined:
1. 2. 3. 4. Does the restriction interfere with the right to freedom of expression as guaranteed under the Constitution? Is the restriction "prescribed by law" or "under the authority of any law"? Does the restriction serve a legitimate objective of sufficient importance to warrant overriding a constitutionally protected right? Is the restriction reasonable, and necessary or justifiable in a democratic society?
(source: Obscenity Laws and Freedom of Expression:
A Southern African Perspective , published by Article 19)

Obscenity Law in Nepal

In Nepal, there is no separate act/law pertaining to obscenity and lack of specific laws often creates problem to claim whether something is obscene or not. However, obscene contents are not allowed to publish or transmit according to some media related laws. Some Public (Crime and Punishment) Acts are exemptions.

Some Press Laws that Prohibit Obscenity

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, Exhibition and Distribution) Act, 1969

Obscenity Law in Nepal -1

Some Public (Crime and Punishment) Act, 2027 BS (1970)

Section 2 of the Act is about Prohibition against some public crimes 2(c) of the act prohibits anyone to break public peace or to make obscene show by using obscene speech, word or gesture in public place. The amendment of the act in 1982 further clarified the same provision:
To print or publish any obscene materials by using obscene language or by any word or picture which denotes obscene meaning; or to exhibit or sell or distribute such obscene publication in public place other than the purpose of public health or health science.

Obscenity Law in Nepal 11

National Broadcasting Act 1993

The Section 15(1)(a) of National Broadcasting Act 1993 prohibits the broadcasting of obscene advertisements. It prohibits the broadcasting of vulgar materials.

Obscenity Law in Nepal - 111

Press and Publication Act 1991

Section 14(e) of the Press and Publication Act 1991 prohibits the publication of materials in books, newspapers, and magazines which are contrary to decent public behavior, morality, and social dignity. Section 16(e) empowers government to prohibit the importation of publications from abroad which are contrary to decent public behavior, morality and social dignity.

Obscenity Law in Nepal - IV

Electronic Transaction Act, 2006

Section 47(1) of Electronic Transaction Act, 2006 prohibits the publication or exhibition of materials contrary to public moral and decency.

Obscenity Law in Nepal - V

Motion Picture (Production, Exhibition and Distribution) Act 1969 Section 8 of the Cinema (Make, Release, and Distribution) Act 1969 empowers the Cinema Censor Board to restrict the release of any movie that contains scenes which are contrary to the public benefit, decency and morality.

Complexities of Obscenity Laws

The global network of freedom of expression IFEX quotes executive director of Article 19 Andrew Puddephatt:
"Protecting society against harm that may flow from pornography and other obscene materials must be balanced with ensuring respect for freedom of expression and preserving the free flow of information and ideas."

International Instruments on Obscenity

Convention for the Suppression of the Circulation of, and Traffic in, Obscene Publications concluded at Geneva on 12 September 1923 and amended by the Protocol signed at Lake Success, New York, on 12 November1947. 2. Agreement for the Suppression of the Circulation of Obscene Publications, signed in Paris on 4 May, 1910, amended by the Protocol signed at Lake Success, New York, 4 May 1949. 3. Agreement for the Suppression of the Circulation of Obscene Publications. Paris, 4 May 1910.
1.

First Amendment &Obscenity

The First Amendment grants broad freedom to a licensee and its on-air performers to choose the content of speech. However, this freedom is not absolute. Obscene speech is not protected by the First Amendment and its broadcast is prohibited. Broadcast speech is deemed obscene if (a) it appeals to the prurient interest, (b) it describes or depicts sexual conduct in a patently offensive manner, and (c) taken as a whole, it lacks serious literary, artistic, political, or scientific value. Under this definition, speech is deemed to appeal to the "prurient" interest if it appeals to lustful ideas or desires. Broadcasting obscenity can result in severe fines and the very real possibility that the FCC will not renew a station's broadcast license. In addition, the FCC has previously indicated that any complaints involving obscene broadcast material will be turned over to the Department of Justice for possible prosecution. If convicted under federal law, a violator may receive up to two years imprisonment in addition to very substantial fines.
(From: Missouri Broadcasters Association http://www.mbaweb.org/)

No clear Definition in Nepal

At present, Nepal lacks clear definition of the term obscenity. Laws that prohibit obscene content are excessively vague and not clear enough to prosecute the guilty. Nepals obscenity laws are based more on offense rather than harm To provide protection against harm from obscene materials while also respecting the principle of freedom of expression, the state should bring a new act which will set out a clear and harm-based definition of what constitutes obscene materials in respect to the international standards.

Conclusion
The issue of obscenity and legitimacy of legal controls on sexually explicit material, both print and broadcast media, has to be defined clearly. Also, the government has to be prepared to prevent possible harm from obscene contents in emerging new media. Striking the balance between the fundamental right to freedom of expression and the public interest in protecting children and safeguarding others from harm is indeed far from easy (Article 19). But the government should do it without any delay to safeguard vulnerable people and also to safeguard international standards of Freedom of Expression.

Thank You
Siromani Dhungana Lecturer (Journalism and Mass Communication) Madan Bhandari Memorial College Tribhuvan University Kathmandu, Nepal Email: meshiromani@gmail.com | siromanidhungana@gmail.com Twitter: siromanid Facebook: Siromani Dhungana Linkedin: Siromani Dhungana

(Thanks to Kathmandu-based copy-editor Amendra Pokhrel amendrapokharel@gmail.com for his contribution)