In my Talking Point ‘Civil right to objectify women’ (July 27), I opined that, in terms of Bill 113 now before the House of Representatives, Malta will allow, among other things, the licensing of adult television channels on broadcasting platforms by the Broadcasting Authority and the unhindered reception of foreign-licensed pornographic channels. As the broadcasting law stands, pornographic television stations cannot be licensed.

In a press release issued on August 7, the Department of Information stated that the Bill does not change any of the powers currently vested in the Broadcasting Authority to regulate such transmissions. However, it is not clear to me what this sentence exactly means.

Luckily, readers have been regaled with two clarifications.

The first (August 8) was by Dorothy Falzon, communications coordinator at the Ministry for Justice, Culture and Local Government. With reference to the editorial ‘A government squabble on gender equality’ (August 6), she said that it is “absolutely not correct£ that Bill 113 “provides for the licensing of adult TV channels on broadcasting platforms as well as the unhindered reception of foreign-licensed pornographic channels”.

She also said: “There is nothing in the draft law dealing with... adult TV channels. For instance, on the latter point, the Broadcasting Authority has already publicly declared that nothing will change from the present situation insofar as its powers are concerned once Bill 113 becomes law.”

In the second clarification, Andrew Sciberras (August 12) writes that “the intention behind Bill 113 was not the legalisation of pornography”. However, he failed to declared that the legalisation of pornography will be the unintended consequence of Bill 113 when the President of Malta signs it into law.

I beg to differ with the readings of the law indicated above.

The Criminal Code, once amended through Bill 113 as proposed, will allow the Broadcasting Authority to license pornographic channels. This is because paragraph 3.1 (vii) ‘Requirements as to standards and practice applicable to the family viewing and listening’, subsidiary legislation 350.18, made by the Broadcasting Authority in terms of the Broadcasting Act, expressly states that: “No pornographic material may be broadcast in breach of the Criminal Code.”

Hence, the requirement not to broadcast pornography in Malta emanates from the Criminal Code, that is, from article 208, the very same provision Bill 113 is purporting to decriminalise, bar certain narrowly-defined exceptions.

The Broadcasting Act draws its prohibition of licensing pornography from the Criminal Code not from an express provision in the Broadcasting Act

Once the Bill becomes law, pornography can then be allowed to be broadcast on television because the Broadcasting Act draws the prohibition of licensing pornography from the Criminal Code rather than from any express provision contained in the Broadcasting Act.

Thus, the position at law is totally different today where the Broadcasting Act, read in conjunction with the Criminal Code, allows for a total prohibition of the transmission of any form of pornography. That is why, to date, the Broadcasting Authority has never ever licensed any adult channel on the cable and digital terrestrial television networks. Once Bill 113 decriminalises pornography, then all forms of pornography, bar a few exceptions, can, by law, be broadcast.

Bill 113 will change the scenario from one where the Broadcasting Authority may not license any form of pornographic channel in Malta to one where it may practically, albeit a few exceptional cases, be allowed to allow pornographic channels in Malta. So the powers of the Broadcasting Authority will drastically change in this respect because of, and through the enactment of, Bill 113.

Were it not for what is being proposed in Bill 113, the status quo would continue to debar the Broadcasting Authority from licensing adult content or allow the rebroadcasting of adult channels in Malta.

It is indeed very unfortunate that the Ministry for Justice, Culture and Local Government has found fault with this newspaper’s editorial that was espousing what, in my opinion, was a correct interpretation of the law. It is also unfortunate that Sciberras holds a view that is contradicted by Bill 113.

An analysis of article 208 of the Criminal Code as it stands now indicates that it does not simply prohibit the display of pornography in a public place, as Bill 113 does in the proposed new clause 208, but goes further. In fact, contrary to Bill 113, it criminalises the manufacture, print or otherwise the making, or introducing into Malta, or the acquiring, keeping, putting in circulation or exporting any pornographic material.

Broadcasting has to do with introducing in Malta (insofar as foreign pornographic channels licensed for broadcast are concerned) and putting in circulation (in other words, broadcasting) pornographic articles. Bill 113 does not restrict such introduction and circulation of pornographic material as article 208 of the Criminal Code does today.

The new law will only criminalise the display of pornographic material in a public place, that is, “any place to which the public have or are permitted to have access, whether on payment or otherwise”.

Furthermore, in terms of Bill 113, the provision empowering the Broadcasting Authority not to license pornographic channels will, through the same Bill 113, be struck down.

Instead, Bill 113 states the following: “This article shall not apply to any material that is included by any person in a television broadcasting service regulated by the Broadcasting Authority within the meaning of the Broadcasting Act”.

The Broadcasting Authority will thus be free to license pornographic material, subject to the limitations prescribed in Bill 113, such as the prohibition of broadcasting extreme pornographic images or the non-consensual disclosure of private sexual photographs and films, and the provisions of the Broadcasting Act, even if this does not deal with pornographic channels and Bill 113 does not introduce provisions in the Broadcasting Act to regulate pornographic transmissions.

So, yes, Bill 113 does legalise pornographic channels and empowers the Broadcasting Authority to license them and allow their rebroadcast in Malta.

I prefer to call a spade a spade. I will not try and misinform readers on the legal implications of Bill 113 by diverting the argument on freedom of artistic expression without highlighting the hidden trappings of Bill 113.

We all know that the road to hell is paved with good intentions.

Kevin Aquilina is dean of the Faculty of Laws at the University of Malta.