Christian Peregin
Hotel porn is illegal... or isn't it?
It all boils down to interpretation
Criminal lawyers are unsure whether it is illegal for hotels to offer pay-per-view pornography TV channels in private rooms, an issue raised by Labour MP Adrian Vassallo who is staunchly against pornography.
According to the Maltese Criminal Code, possession of pornography is only illegal if it involves minors but the law is not so clear when it comes to its distribution, selling and displaying.
Article 208 (1) of the Criminal Code says that someone who "for gain, or for distribution, or for display in a public place or in a place accessible to the public, manufactures, prints or otherwise makes, or introduces into Malta, or acquires, keeps, puts in circulation or exports, any pornographic or obscene (material)" may face a prison term of up to six months.
While some lawyers interpret the first part of the sentence to mean that it is illegal for a hotel to sell such a service to its clients, other members of the legal profession argue that the phrase "public place or in a place accessible to the public" only makes it illegal to sell, distribute or display porn in public.
That would mean that the law would be broken if pornographic material is sold in shops or open markets or aired in a public place, like a cinema or a bar, but not in private settings, like a hotel room.
The difference in interpretation stems from a subtle disparity in how the law is read.
According to criminal lawyer Veronique Dalli, hotels offering pornography channels were technically committing an offence but she warned that the law should be applied without hysteria and with great caution.
"If we take action against hotels, will we also take action against internet providers," she asked, pointing out that the Criminal Code did not even define pornography in the first place.
Another criminal lawyer, Joe Giglio, argued that the act had to be committed in public for it to be illegal. "It is not illegal to watch adult pornography in the privacy of your own home and, similarly, it is not illegal to watch it in the privacy of your own hotel room. Therefore, I see nothing illegal in hotels offering access to pornography channels via pay-per-view service," he said.
Lawyer Emmanuel Mallia agreed with Dr Giglio but added another variable, arguing that it was debateable whether hotels are classified as public or private places.
Dr Mallia said that when one rented a hotel room that became a private place but there could be a technical issue on how pornography reached the rooms and whether this was coming from a central location that was accessible to the public.
A police investigation has been launched into claims made by Dr Vassallo in a parliamentary question but no more information has yet been forthcoming about what the police will be looking into exactly.
Questions to the Ministry of Justice have not yet been answered but government sources agreed with Dr Dalli's interpretation of the law, arguing it was legal to view pornography but not to sell it, whether in a public place or not.
Sources also said that a committee set up by the Justice Ministry recently to define pornography and obscenities could recommend changes in the law.
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Patrick Jones
Jun 12th 2010, 19:53
Sorry if i seem to be a bit of a radicle, but can anyone tell me, what right has anyone to tell another person what to do and not to do in the privacy of his own home, as adults? surely this is Dictatorship at its best, and why now, people having been watching porn for many years, why now, is it because of all the news we've been reading lately about child pornography or some clergy who went astray, which is naturally totally wrong in my books and very very irresponsible.Then why not control and legalize prostituation as many countries do, why be two faced about the whole concept of it all.
S. Calleja
Jun 13th 2010, 09:16
Because, in general, it is in the nature of the Maltese people to be two-faced about practically every aspect of their lives. If you've lived in Malta for a number of years you would know what I mean.
Gerry Cowie
Jun 12th 2010, 10:25
Ramon Casha's response is no more than we have come to expect. He knows full well I was generalising about rights and responsibilities. Everybody who claims rights must remember that they come with responsibilities and that anything one does which affects another person in any way should be taken into account. Just use your common sense!
george farrugia
Jun 11th 2010, 22:41
I believe that the substance of Article 208(1) is to protect the general public - and especially minors - from being publicly offended by unsavoury material on display in locations where everyone could see it. A private hotel room can hardly be described as such a location. Where this not so, then the local authorities would have a big battle on their hands, not only with the hotel owners, but with a local cable television station and also internet service providers.
Gerry Cowie
Jun 11th 2010, 19:45
Ramon Casha should remember that his rights should not impinge upon other people and that with every freedom comes a responsibility.
Charles Sammut should drop his attack on the Church and realise that it is an insult to those of no religious belief who might oppose pornography to suggest that this is solely a religious issue - a favourite interpretation of many on so many subjects when it suits!
Ramon Casha
Jun 12th 2010, 07:28
Which of my rights do you feel impinge upon anyone else? I'm not sure which of my comments you're referring to.
Joseph Calleja
Jun 11th 2010, 17:05
Since when is a hotel room a public place? First of all a hotel room is not in any way a public place because before you check in you are charged a fee to use the room and you are given a personal key to open or lock the door, so that room becomes private. The case here is not the pornography but a case of BIG BROTHER WATCHING. By the way nobody is forcing anybody to pay or turn on any TV in any hotel room, it's a matter of choice. Maybe I wanted to watch the Lou Bondi show with Norman Lowell, is that a crime too? Why don't these politicians, lawyers, DR Vassallo and Mr Zammit visit Paceville at night and enter some of the exclusive clubs. Sometimes it's worse than porn. No Paceville and other resorts are not so innocent. But that's OK because our kids go there to enjoy themselves. If the law needs clarification then I suggest we rewrite the law and stop being purposely confused. I am sure that the police have better things to do, like fighting drugs and keeping the peace.
Reuben Mallia
Jun 11th 2010, 14:49
Another nail in PL's coffin. This government is in shambles, but this article highlights how far Labour can go to publicise the fact that it is even worse than the present nightmare of a government. Who expects to be elected on such a ticket when all these people exude is stupidty?
Ramon Casha
Jun 11th 2010, 15:41
How so? Although the question was raised by a PL representative, it was answered by a PN representative who assured him that the police was (already) investigating. Clearly, both sides have their neanderthals.
However, PL's stated intent is to be the more progressive party - and so far it seems that they are indeed a shade more progressive than PN, individual MPs notiwthstanding.
So, next election, those of us who are progressive and liberal would definitely not vote for either Adrian Vassallo or Carm Mifsud Bonnici, but they're more likely to vote for PL than PN. Regressives and conservatives on the other hand will probably vote wholeheartedly for Vassallo and Mifsud Bonnici, and for PN.
victor rodenas
Jun 11th 2010, 13:54
What is moral or immoral ?....this all depends on ones culture, if something is inprinted in our mind that it is immoral, then for our soceity it is considered immoral,even if in fact it is not Let. me try to explain. If we go for a safari in Africa and we see a group of natives,they are all naked,they have been living naked for millennia there.Would it be just if we say.....`look how immoral they are,they are naked`.It would be unjust........suppose we bring a few for a holiday in Malta,without making them wear clothes and somebody tells them that they are immoral,would they feel immoral. They will not.........for them being naked is not immoral.........................by the way,with original sin man saw that he was naked ,he became shy and covered himself.Now, how are these natives not effected like everybody else with the effects of original sin and remained naked ?...........About pornography,this is a much ado about nothing story, on the internet one can see anything he wants ,if one is over 18....Censorship is something of the past.
A. Saliba
Jun 11th 2010, 13:01
This is clearly not a matter of interpretation since the law is extremely categorical: "public place". A hotel room is doubtless NOT a public space.
If that were the case, one wouldn't be able to have sex in a hotel room, since that would constitute as having sex in public.
Etienne Bonello DuPuis
Jun 11th 2010, 12:41
Maybe it's time to rewrite the penal code. lol.
Joe Zammit
Jun 11th 2010, 12:40
Let's take prostitution in our Criminal Law. Prostitution is not a crime but the organisation of prostitution is a crime.
The same MUST apply to pornography. Pornography is not a crime, but the organisation of pornography MUST BE A CRIME and it is in fact a crime.
When one can sell or buy pornographic material means that pornography is being organized. So in this case pornography will be a crime.
That's why the police is conducting an investigation on the matter.
George Vella
Jun 11th 2010, 19:48
Well explained Mr. Zammit
Franco Farrugia
Jun 11th 2010, 12:03
And this is also backfiring. The fact that the system is reminding youngsters about this issue - pornography - and bringing it to their attention. This is the type of MPs we have in our parliament - people who are unable to reflect about what they say and about what they ask, people who are totally deprived of educational psychology.
RMangion
Jun 11th 2010, 11:40
Why are we so stupid on this island ?
Karl Bugeja
Jun 11th 2010, 16:22
I've been asking that exact same question for years
Joe Zammit
Jun 11th 2010, 10:53
For criminal law all intents and purposes any place to which the public has access or can view is considered a public place and the police can take action ex officio.
So also, say, a case of a normal house, where a crime is committed, if the door is open and whoever passes by can view what is happening, that house is regarded as a public place.
Charles Sammut
Jun 11th 2010, 12:34
Hotel rooms are not public. As soon as you are assigned your room, it becomes private. Not even hotel staff can just barge in. So unless you move the TV to the window so that porn is visible from the street, it is a private matter.
If it is not illegal to have sex in hotel rooms, and we know that this 'occasionally' does happen, why should porn be illegal? The mind boggles.
Joe Zammit
Jun 11th 2010, 12:58
Charles, the hotel room is private, but other parts of the hotel are public. When, say, there is a hall where activities are held, that is public for all intents and purposes of criminal law. Remember also that organised pornography is a crime like organised prostitution. The selling of and paying for pornography points to its organisation. So although the hotel room is private, pornographic videos, etc, are crimes because they are being organised.
J Galea
Jun 11th 2010, 10:33
Unlike Iran, Malta is a country that is supposed to act according to the rule of law. Prosecutors and the police better be sure what the law is before making their investigations. But besides this, don't the police have better things to do with their time? Why don't the meddling politicians just let the police to get on with their real work - catching paedophiles and other criminals, which is a better use of taxpayers' money? And if watching porn in a hotel room is an offence, what about attending gentlemen's clubs in Paceville? This is 2010 not 1984.
claire scicluna
Jun 11th 2010, 11:31
You know...Families kinda lasted longer and were more united in 1984....
Jonathan McBee
Jun 11th 2010, 17:24
Miss Scicluna, I sometimes wonder if families were more united in the past or just seemed like it. I know many couples and families who have been unhappy for very long, and it's to be expected that everyone will always have had problems. What I see as being different nowadays is the fact that we are more open about such issues, and we talk about them more. Granted, access to pornography and other things which can harm a family is more widespread nowadays. What I mean to say is that many people are taking a somewhat simplistic approach to all of this, and I think there's a lot more to be discussed.
Charles Sammut
Jun 11th 2010, 10:29
These are some of the joys that Dr Adrian Vassallo can have when he moves to Iran.
All approved by none other than Ayatollah Khomeni in his famous book, "Tahrirolvasyleh".
“If one commits the act of sodomy with a cow, an ewe, or a camel, their urine and their excrements become impure, and even their milk may no longer be consumed. The animal must then be killed and as quickly as possible and burned.”
“A man can have sex with animals such as sheeps, cows, camels and so on. However, he should kill the animal after he has his orgasm. He should not sell the meat to the people in his own village; however, selling the meat to the next door village should be fine.”
Joseph Galea
Jun 11th 2010, 21:32
This is even better than Monty Phyton!
Ramon Casha
Jun 11th 2010, 10:28
What if a TV service provider transmits a channel which, from time to time, includes adult films late at night? Would Melita and Go be held criminally liable?
As far as public/private access, to me a hotel room is, for the duration of a person's stay, no different from one's residence. A hotel lobby, on the other hand, would be a public place.
Joseph E Briffa
Jun 11th 2010, 10:10
I cannot imagine how one can logically consider a hotel room as being a public place. If that were the case then anybody can barge into your hotel room and anybody in a hotel room can be prosecuted for exposing oneself to have a shower, or to have sex.
Charles Sammut
Jun 11th 2010, 10:07
Why does our culture look upon sex as something obscene? How wierd and perverse. One of the most uplifting and satsifying activities that man (and woman) can participate in, which is the best anti-depressant around, branded as "obscene". That's what is sick.
Of course, it all stems from a religion which has been saddled with anachronictic mores originating in the Old Testament and inculcated in the minds of infants by that oppressive institution that is the Catholic Church. If you don't want to do it, nobody is forcing you. But do not interfere in what others do, in any case how will you go about it?
And before someone pipes up that it could involve the exploitation of humans, remember that even growing food and manufacturing goods, sometimes involves the exploitation of people. That's life. God (not Man) did not make it fair. C'est la vie. Accept it.
David Buttigieg
Jun 11th 2010, 12:00
"Why does our culture look upon sex as something obscene"
Whilst I completely disagree with the hysteria, and fully agree that it's up to adults if they want to see porn (obviously excluding minors etc) and it should be fully legal like in Italy and the rest of the free world, porn is not sex, and fits my definition of obscene.
Of course I stress, adults should be allowed to see obscene materials if they choose to!
victor rodenas
Jun 11th 2010, 16:59
Because a certain Saint (who`s teaching`s the Church still follows,except where Jews are concerned)wrote that sex is a venial sin(because there is pleasure)...even between married couples..go and multiply~...does God want us to make sins.
Alex Ellul
Jun 11th 2010, 10:07
What is most important? Rights or morals? Dwight D. Eisenhower said: A people that values its privileges above its principles soon loses both.
Ramon Casha
Jun 11th 2010, 11:46
My morals are my own responsibility, but my rights can be denied by others. That's one good reason to pay more attention to the latter.
Besides, who decides what society's principles are? To many, one of the most important principles is that what you watch, read or hear is your own business.
Ramon Casha
Jun 11th 2010, 11:47
PS: By definition, a right is NOT a privilege.
Peter Bonnici
Jun 11th 2010, 09:50
So of it's not illegal to watch porn in the privacy of your hotel room, but illegal for the hotel to sell it, then hotels should provide it for free. Lovely !