Regulation of Obscenity

 

Abstract
Although censorship rarely exudes a democratic nuance, the so-called ‘harmful’ contents are often censored, banned or drawn into disappearance. Whether such actions taken by governments are good or bad is still to be taken into thorough consideration, but some of them have constant, strong supporters. Some conservative views see obscenity as bad, and claim that the law must ban what is wrong. Like violent games, obscenity is sometimes blamed to be the cause of sexual crimes, as watching pornography—hard—arouses sexual urge. But once media content is denied its access to the public, right to freedom of speech on the part of its creator has been stepped over. Some liberalist views see pornography to be the object of natural human interest, not something to be regulated for the public good. There is also an opinion that believes, if people with pent-up sexual urge vent their needs on pornography and get vicarious satisfaction, sexual crimes will be reduced. There are good points that people can get from removing regulation, as well as bad points. Nevertheless, some of those so-called points are sometimes too complicated. If we want to make a better world by imposing a relatively less severe restriction on human rights, there needs to be more thorough discussions in order to make clearer rules.

 

Ⅰ. Introduction
Last year, a recently legislated clause was challenged to be unconstitutional: Article 2.5 of Children and Young Boys and Girls Sex Protection Law, which regulates cultural contents that feature ‘a child or a teenager, or a person/depicted object that may be taken clearly as a child or a teenager’ and makes the child do something sexual, is said to deter the principle of clarity. This part was added to the original law only a few years ago, when Korea was bolstering with rage against child rape.
Although censorship rarely exudes a democratic nuance, the so-called ‘harmful’ contents are often censored, banned or drawn into disappearance. Whether such actions taken by governments are good or bad is still to be taken into thorough consideration, but some of them have constant, strong supporters—regulation on obscenity, for example, is widely acknowledged as necessary in many countries.

Ⅱ. Pros and Cons of Regulation of Obscenity
1. Pros

(1) Ethics
Some conservative views see obscenity negatively, and claim that the law must ban what is wrong. This is similar to the opinion that says obscenity disgusts the public. Both perspectives are based on the notion that what is ‘unethical’ or ‘disgusting’ must be forbidden, but the writer of ‘Copyright of Internet Pornography and Criminal Responsibility for its Infringement’ criticizes them by pointing out the following logic: first, the object of legal regulation and the object of moral blame are different things; second, repulsive feelings are not fit to be an objective, reasonable criterion of criminal law.

(2) Influence on Public—Reduction of Sexual Crimes
1) Control of Sexual Urge by Biological Means
Like violent games, obscenity is sometimes blamed to be the cause of sexual crimes, as watching hard pornography arouses sexual urge. Such opinion believes the media to have great influence on the human mind, to the extent that watching pornography must make people want to commit sexual crimes. From this perspective, a ban on obscenity would consequently bring the reduction of sexual crimes. This theory has not yet been proven true, but seems to be widely supported by conservative policy-makers.

2) Control of Sexual Urge by Cultural Means
Feminists have condemned pornography for depicting women as sexual objects, and how this leads to sexual crimes. In ‘Effects that Obscenity has on Teenage Sexual Consciousness and the Awareness on Sexual Crimes’, several interviews give testimony on the fact that to those who watch pornography, females in pornography seem to be unhygienic and disgusting. The study concludes that by watching and accepting pornography, viewers get the notion that male sexual pleasure comes from sexually objectifying females, which results in making men disgusted with females and depreciating women. Such images regarding women are apparently related to sexual discrimination, including rape. If a sexual predator believes its prey to be a mere object whose wish is to sexually satisfy the assailant, why would he feel anything guilt about sexual crimes? If obscenity is regulated, such worries will be reduced as a consequence.

2. Cons
(1) Right to Freedom of Speech
Once media content is denied its access to the public, the right to freedom of speech on the part of its creator has been stepped over. As the concept of obscenity itself is open to subjectivity, such regulation on media may be viewed as suppression of the press. When Article 2.5 of Children and Young Boys and Girls Sex Protection Law was newly amended, professional illustrators were in turmoil because people in the field believed that prosecutors will charge any depiction of a child as child porn. Freedom of speech is an important part of democracy that should be guaranteed for everyone, so if there is to be any regulation, the process must be discreet.

(2) Right of Freedom
Some liberalist views see pornography to be the object of natural human interest, not something to be regulated for the public good. Such opinion often focuses on the fact that there is no clear-cut evidence on harmful effects that obscenity is said to have on people. If the effect that obscenity has on the public is uncertain, there cannot be reasonable ground for regulation.

(3) Influence on the Public–Reduction of Sexual Crimes
Whether exposed to pornography or not, it is clear that a healthy, mature human being usually has sexual needs. There is a theory that sees obscenity as an affordable substitute for actual sexual acts. This opinion claims that if people with pent-up sexual urge vent their needs on pornography and get vicarious satisfaction, sexual crimes will decline. However, such theory may draw criticism for depicting the need for sexual satisfaction as a direct cause of sexual crimes, while such crimes arise out of multiple, complicated backgrounds.

III. Regulation of Obscenity in South Korea, Japan and the United States
1. South Korea
(1) What is Obscenity?
In order to regulate obscenity, the definition of obscenity must be set clearly. According to the Supreme Court of Korea, the highest court in South Korea, “obscenity” in Criminal Law is what “stimulates sexual desire of common people in general and therefore results in sexual excitement, and is against good sexual moral ideas for its harmful influence on normal sexual humiliation”. In contrast, the Constitutional Court of Korea focuses more on what the content is used for, defining obscenity as “what is depicting sexual organs or actions so explicitly that it can be evaluated as to have severely damaged and distorted human dignity and values, as well as appealing completely or at least dominantly to sexual interest without any literary, artistic or philosophical values in common sense”. In one case, the Seoul Central District Court decided that the definitive main agent in deciding whether a content is obscene is the judge who is in charge of the case, and that the platform where the content—video files in this case—is transmitted to should be taken into consideration as well.
In detail, the Supreme Court of Korea offers more specific standards in determining obscenity: the level and the method of broad, detailed sexual description; the proportion that such description takes within the content; the relationship between the sexual description and the philosophy or idea shown in the content; the level of easing sexual stimulation by the outline, the development, the artistic quality or the philosophy of the content; and whether the content appeals mainly to the sexual interest of the beholder in general, taking into consideration the fore-mentioned components. These standards were basically set for written texts, having been defined in a court decision over a novel, but the same standards were applied for shows as well , and many parts of the ruling were also used in cases for pictures , too.
It is also worth mentioning that the Supreme Court stated: “whereas artistic value and lewdness are evaluated in different dimensions, just because a particular literature or piece of art has great literary or artistic value, it does not mean it is not to be determined as obscenity”.

(2) General Clauses in Criminal Law
According to Article 243 of Korean Criminal Law, “any person who distributes, sells, lends, openly displays or shows any obscene documents, drawing, pictures, films or other things, is to be punished by imprisonment for not more than one year or by a fine not exceeding five million won.” The next clause imposes the same punishment on those “who have created, possessed, imported or exported obscene products with the intent to engage in acts prohibited by Article 243.” The next clause, Article 245 of the same law punishes anyone who has “publicly committed an obscene act by imprisonment for not more than one year, a fine not exceeding five million won, detention or a minor fine.” In determining an obscene deed, there is controversy in whether there is obsceneness in deeds that are not sexual, but the court believes that there is.

(3) Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc
Obscenity in the form of computer files is regulated by Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. Article 42 states that when an information provider on communication network offers content that is harmful to teenagers, he must indicate such feature of the particular information by the rules set by executive orders. Article 42.2 regulates the advertisement of such information. What is harmful to teenagers is decided based on the Juvenile Protection Act, by the Commission on Youth Protection or other relevant deliberate bodies: “anything obscene or suggestive that stimulates sexual feelings of teenagers” is to be harmful to teenagers, and more detailed criteria are set in executive orders. Article 43 also states that any information provider who is regulated by relevant executive orders and makes money by transmitting harmful contents to teenagers in a way that does not leave a record in the user’s computer must keep the data. Article 73 of the same law punishes anyone who is not in accordance with the article by imprisonment of less than two years or a fine below twenty million won.
Aside from such clauses that are especially meant to protect teenagers, this law also contains a clause for general regulation of obscenity. Article 44.7.1 states that nobody may transmit information that distributes, sells, lends or publicly displays obscene signs, texts, sounds, images or videos. Anyone who is in violation of the law is to be sentenced for less than a year or a fine below ten million won.

(4) Promotion of the Motion Pictures and Video Products Act
Any movie that is made in or imported into South Korea must be graded by the Korea Media Rating Board, according to the Promotion of the Motion Pictures and Video Products Act, except those exempted by Article 29.1 of the same law. Movies are divided into five different grades: Universal (all available), No children under 12, No children under 15, No children under 17 (X-rated), and Restricted. Of course, any movie that fits into any one of those categories must have been judged to be fit for screening in South Korea. Some movies are not allowed to be rated in the first place, obscenity being one of such cases. On the other hand, there is criticism on the current rating system about the fact that there is no movie theater for restricted movies at present and, therefore, the grade “Restricted” is in fact ineffectual. Kwanghee Cho, in “A Guide for Movie People”, mentions that the standards with which the Korea Media Rating Board rates movies are in need of more specification.
Such clauses are similarly applied to videos as well, but a video decided to be unfit for rating is forbidden from being created, provided, sold, lent, provided for watching, put in display or storage in order to be provided for watching, etc. The rule is harsher for videos because videos are transferred individually to private customers.

(5) Act on the Protection of Children and Juveniles from Sexual Abuse
Act on the Protection of Children and Juveniles from Sexual Abuse was legislated in 2013, in order to protect children and teenagers from sexual crimes. Considering the age of the protected, this law usually imposes harsher sentences compared to the general Criminal Law. According to Article 11.1 of this law, those who make, import or export child or juvenile pornography must be sentenced life imprisonment or at least sentenced for more than 5 years. The whole Article 11 in fact lists what each act of selling, lending, distributing, providing, etc. will be punished with. Those punishments are usually quite similar to the crimes related to general obscenity, only harsher. But this law has a unique clause that even punishes the people who possess child pornography. The law also has its special standard of deciding obscenity, by giving the definition of “child or teenager pornography” as film, video, game, or image through computer or other communication media in which a child, a teenager, a person/depiction that may be “perceived evidently as children or juveniles” stars in and do any act defined in Article 2.4. In this clause, it is not necessary for the content to be obscene, but just having a sexual scene will suffice.

(6) Administrative Restrictions
The Publishing Industry Promotion Act prescribes that, when a publication is decided to be obscene and therefore must be graded as a harmful publication through Article 19.1.2 of the same law, it may be collected or discarded at once. The law also regulates underage movie lovers by putting a clause in the Promotion of the Motion Pictures and Video Products Act that says nobody should let children in a cinema that is screening a movie for people older than them, although there may be minor exceptions when the parents of the children are accompanied. The Juvenile Protection Act imposes a penalty on people violating Articles 58 and 59, which list minor offenders who have, for example, sold or rented content that is harmful to juveniles for money , or failed to make an indication on such contents that they are harmful , etc.

(7) Criticism
1) On the Supreme Court’s Criteria
For the specific standards that the Supreme Court of Korea has offered in deciding obscenity, there is an opinion that the court did not consider the specific features that each medium holds. This view believes that it is more reasonable to offer different, specialized standards for each medium.
The writer of “Cultural Activity and Crime” also points out that the court’s general definition of obscenity is problematic because: first, some perverse sexual images may make people disgusted and even driven out of sexual feelings, but the court’s definition does not take such possibility into account; second, people in general may feel sexually aroused by watching pornography, but humiliation is another problem—the concept of obscenity and its relationship with sexual humiliation as well as stimulating sexual feelings must be discussed further; third, it is still hard to distinguish which components of a content harm healthy sexual customs and which do not.

2) Sexual Discrimination?
The Supreme Court of Korea, in 2003, decided that a masturbation tool for males named ‘Chasey’, which was shaped just like the female sexual organ, was obscene. The trial court had judged that the defendant was innocent on account of the fact that ‘Chasey’ was only sold at the inner display stand of an adult product shop, but the Supreme Court overturned this decision by saying: “Whether something is an obscene object or not must be decided by the object itself, regardless of the intention of the offender or the particular situation…the object in this case…expresses the female sexual organ all too bluntly.” The point of this court decision is that ‘Chasey’, by emulating the form of a human sexual organ all too well, must stimulate any beholder’s sexual desire. But just three years ago, in 2000, the same court had already decided that a set of female masturbation tools were not obscene objects because it was impossible to believe that those tools stimulated or satisfied sexual desire, nor could they “damage normal sexual humiliation”.
The attitude that the court shows in each case is different. In the Chasey case, the court first points out the necessity of male masturbation tools and then decides that, in spite of such social need, ‘Chasey’ is too similar to a female sexual organ and therefore must be regulated as obscenity. But in the decision about female masturbation tools, there is no such explanation. The short reasoning that the court gives is that just because those tools do remind people of male sexual organ, it does not mean they arouse sexual feelings. But considering the purpose of masturbation tools, the case objects were nothing if not sexual. It is hard to tell with certainty because the case does not mention how close the tools were to real male sexual organs, but this may rise a question of sexual discrimination: It must be clarified why the court assumed that the general public would not feel sexual towards masturbation tools shaped like the male sexual organ, but would towards those shaped like the female one.

2. Japan
(1) General Rule
In Japanese law, the ground on which obscenity is punished is the Principle of Privacy. Sexual acts carried out in public is punished by law not because an individual does not have a right to do sexual deeds, but because they are done out in public. Japanese Criminal Law is similar to the Korean law, with the reason why obscenity must be regulated also being similar: sexual humiliation and public ethics. Masahide Maeda specifies the Principle of Privacy by understanding sexual humiliation to be “coming from the conflict between human nature called sex and human dignity, and therefore it must be universal”.
There is a famous case in Japanese legal history called Lady Chatterley’s Lover case. This case was set a long time ago, when the famous novel by D.H. Lawrence was prohibited as obscenity in the Japanese court—but the expressions used in the court’s decision are still important, so it must be worth looking at several points made in the case: “obscene text” in Article 175 of the Japanese Criminal Law is a text that “stimulates and brings out sexual feelings of the reader, damages the general public’s normal sexual humiliation and is against good sexual ethics”; even a good piece of “art may be obscenity”; the right to speech stipulated in Article 21 of Japanese Constitutional Law is not always unrestricted, and anything that is against public good may be controlled. The Japanese perspective that can be read from the case is basically similar to the Korean court’s view.

(2) Child pornography
In 2014, the House of Councilors of Japan decided to punish the possessors of child pornography, as well as the makers and the distributors. Up until now the possession of child pornography has not been punished as a crime, but it is now an offense that puts the doer in jail for less than a year or charges him a fine under a million yen. However, this new policy is not applied to cartoons or animations.

3. The United States
The Supreme Court of the United States made its own first decision on obscenity in 1957, changing its criterion in deciding obscenity from the previous one, which was in fact set in Regina v. Hicklin case in the United Kingdom (1868). Obsceneness was to be decided by “particularly susceptible persons” up till then, but in the new Roth v. United States case, the court stated that such standard is “unconstitutionally restrictive of the freedoms of speech and press… you determine its impact upon the average person in the community.” Then in 1973, in the famous Miller case, the court made another big development, setting three criteria in deciding obscenity:
whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In order for a sexual expression to be obscenity, it must fall into every one of those three lines.
Article 1461 of U.S. Code 18, the chapter about obscenity, bans the postal delivery of obscene objects. They are also forbidden from being carried into U.S. territory by the next clause, Article 1462. Then an interstate postal delivery of obscene or indecent object is punished by Article 1465, so it sounds like that the Supreme Court of the United States must have made the first criterion in the Miller case on the ground of geographical border which suggested different rules and cultures in different states in the U.S., but Kwoncheol Lee points out the danger of borderless obscenity through the Internet in the contemporary world.

IV. Conclusion
Human beings are usually born with at least one sex, and when people come of age, they are generally deeply intertwined with the concept of their own gender and wish to make a romantic relationship with someone. So it is quite natural for people to want to talk about sexual needs and what they feel about their own sex. If a government were to forbid people from showing their interest in sex, it would be both impossible and unnecessary. But will it be right to let go of every regulation imposed on sexual talk?
There are good points that people can get from removing regulation, as well as bad points. Nevertheless, some of those so-called points are sometimes too complicated, and sometimes even wrong. Whilst the contemporary world holds many social problems and so many people want to offer answers of their own, if we want to make a better world by imposing a relatively less severe restriction on human rights, there needs to be more thorough discussions in order to make clearer rules.

References

-김헌주 & 임혜린, [웹툰 전성시대]드라마,영화,캐릭터 웹툰은 진화 중, MK뉴스, http://news.mk.co.kr/newsRead.php?year=2013&no=87079 (last visited July 2014)
-三島聡, [チャタレー事件]「猥褻」概念の徹底的な解明(思い出のあの事件・あの弁護), 環直彌氏に聞く,  季刊刑事弁護 11 (1994), 現代人文社, p.24-30
-이경재, 성풍속범죄에 대한 비판적 고찰, 형사판례연구 19, 박영사 (2011)
-김승현, “폭력게임 즐기면 살인죄인가? 아청법도 마찬가지”, Thisisgame, available at http://www.thisisgame.com/webzine/news/nboard/5/?n=51928 (last visited July 2014)

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Posted in Autumn 2014.