Court rules explicit story not ‘obscene’
Student audience ‘mature’
A “very important” judgment for freedom of expression was yesterday handed down as an editor and author were cleared of offending public morals with the publication of a sexually explicit and crude short story in a university newspaper.
Magistrate Audrey Demicoli ruled the piece did not qualify as obscene and pornographic and that the police had failed to explain how public morality, which changed over time, had been breached.
The story, carried in the student newspaper Realtà last year, and the subsequent court action had provoked heated public debate about the limits of expression and the boundaries between literature and pornography.
The elated pair, editor Mark Camilleri and author Alex Vella Gera, beamed with pride on the steps of the court house after the judgment and said they expected a public apology from University Rector Juanito Camilleri for igniting the whole legal saga by contacting the police.
Mr Camilleri said this was an extremely important judgment for freedom of expression. The rector must reconsider his position, now that he had been proven wrong on the issue. A public apology was not enough and if the rector decided to resign he would be making a valid point, Mr Camilleri. However, if he did not step down, he had to publicly declare that the newspaper could be distributed unhindered.
Following the publication of the literary piece, the rector had banned that particular issue from campus.
Mr Vella Gera said Maltese artists could now stop censoring themselves and their lawyers, Phillip Manduca and Alex Sciberras, said they hoped this would bring about a change in the law.
The two men stood charged with breaching article 208 of the Criminal Code dealing with the distribution of pornographic or obscene material and were faced with a possible prison sentence of up to six months or a fine of up to €465.87 if found guilty.
The contentious story, entitled Li Tkisser Sewwi, was written in 1997 and, in highly explicit and crude language, describes the male narrator’s sexual exploits.
During the case, Joe Camilleri, a university precincts officer, had testified that the complaint to the police was made after the university administration had received a number of complaints from students.
In a January sitting, a number of academics and authors took the witness stand to argue that the story should not be censored.
University professor Kenneth Wain had held that the very fact it was so explicit meant the author’s intention was not to be pornographic or to titillate. It was not even erotic because it left nothing to the imagination. Rather, he wanted to convey a message, that the protagonist in the story should “fix what he had broken”.
Other witnesses included former politician and author Lino Spiteri, linguistics expert Albert Gatt, anthropologist and commentator Ranier Fsadni, author Maria Grech Ganado, Maltese literature lecturer Adrian Grima and stage director and actor Toni Attard.
In handing down judgment, Magistrate Demicoli said Playboy magazine was readily available on the book shelves across Malta and was designed specifically for sexual arousal. On the other hand, a book about sexual education which included pictures or explanations of intimate relationships was not intended to cause sexual arousal.
It was very clear that the monologue used by the author and the style, described as “in your face”, was intended to make readers uncomfortable and force contemplation about certain harsh realities of life.
In the court’s opinion, the fact that the piece was shocking and evoked disgust in readers did not qualify as obscene and pornographic.
Magistrate Demicoli added that the prosecution had brought no evidence to define public morality in Malta and how it had been infringed. The court felt that public morality was something which changed over time, and what offended public morals 20 or 30 years ago did not necessarily do so now as realities changed, including the media.
The magistrate said she also considered that the target audience was university and junior college students who were mature and exposed to every type of information and different ideas via internet, newspapers, books etc.
Given the fact that the students were exposed to such a huge amount of information, as well as the fact that there was no concrete evidence to prove their morality had been offended, one could not say that a crime had been committed.
In a statement, the rector said that he would be unable to comment as it was still unclear whether or not an appeal by the competent authorities shall be filed.
Speaking yesterday afternoon, Prof. Wain described the judgment as a “sensible” one which showed progress and recognition of freedom of expression.
The Labour Party spokesman for higher education and culture, Owen Bonnici, urged the government not to appeal the judgment and instead work towards changing and modernising laws related to the freedom of artistic expression.
The Malta Humanist Association welcomed the ruling and hoped that “such commonsense interpretation and application of the law will soon become the norm rather than the exception”.