By Chipoya Teddy
ABSTRACT
The media plays a very important role in keeping the public informed. however, where the material in question is that which is against public morals , policy or order, reporters, publishers and other media outlets are faced with a tough question. Where to draw a thin line between freedom of expression and public morality. This paper critically examineS the dichotomous character of freedom of expression in Media law and it’s coinciding rights of public dissemination and right to information; and it’s urgency to protect the expression of literary and artistic work in intellectual property that is against public morality. Further this paper will envisage a legal philosophy underlying obscene laws and copyrights in common law jurisdiction and civil jurisdiction.
Keyword: obscenity, obscene, morality, Taboo, prurient.
INTRODUCTION
The freedom of expression, is a fundamental right that is guaranteed to every person in the country, it is important especially in a democratic society like Zambia to help people achieve there individuality, truth finding, and increased participation in politics. Ultimately, it encourages morality and ethics; patriotism, national unity and democracy as National Values, Principle and Economic policies under Part II of the constitution Of Zambia. Thereof, Article 20 provides:-
“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, Freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.”
However this right is not absolute, as it is subject to limitations, for the purposes of this paper the, Article 20 (3)(a) nothing contained in this article shall be held to be contravenes where it is shown in the that is reasonably required in the interests of defence, public safety, public order, public morality or public health. Therefore the law of obscenity is reasonably justified as an exception under article 20 of the constitution.
Laws Providing For the offence Of Obscenity
The constitution which is the supreme law of the land and all laws should be consistent with its provision (Article 1 clause 3), further article 20 clause 3 provides for the exception freedom of expression, for the purposes of this discussion includes morality; Statutory laws that provide for the offence of obscenity the Penalty code chapter 87 and the Cyber Crimes act no 4 of 2024 which will later be envisaged; then Common law and Equity provided for under article 7 of the constitution and the English Acts(extent of application) Act.
Obscenity Laws in Zambia and Other Common Law Jurisdiction
What is obscenity?
Derived from the Latin word obscēnus (boding ill, disgusting, or indecent). Black’s Law Dictionary defines Obscenity: Any statement, utterance, or act that strongly offends the prevalent moral standards and decency of society. And Obscene (adj.): Extremely offensive under contemporary community standards of morality and decency, typically focusing on depictions of sexual and excretory acts. The definition excerpted above provides for three major elements to establish obscenity:
a) Any action or Omissionb) Extremely Offensive andc) Contemporary Community standard.
An Action or Omission
The actus reus of the offense is provided for under section 177(1) of the Penal Code Chapter 87 of the laws of Zambia, any person who: Makes, produces or in his possession any one or more obscene writing, drawing, prints, pictures or poster; Imports, conveys or exports or cause to be imported, conveyed or exported any material; Carries or take in any business, whether public or private concerned with such material; Advertise or makes known by any means with the view to assist in circulating and Publicly exhibits any indecent show or performances.
Further the Cyber Crimes act provides enumerate both the Actus and the men’s reus of the offence under section 22(1) also provides that a person shall not use a computer or computer system to: Publish or transmit electronic data that is obscene, vulgar, Lewd, lascivious or indecent with intent to humiliate, harass or cause substantial emotional distress to another person; or Repeatedly send to another person electronic data that is obscene, vulgar, lewd, lascivious or indecent with intent to humiliate or harass the other person to the detriment of that person’s health, emotional well-being, self-esteem or reputation.
Extremely Offensive
Literary publication have an overarching effect with the right to intellectual protection, the art of journalistic writing is both an expression of thought and regeneration of information from the public. Hence a journalist or reporter still retains the right to protection of his writing even though he transcribes the report from public opinion as held in the case of Donoghue v Allied Newspaper limited. However, Article 17 of the Berne Convention permits government to take preventive measure of exhibiting or publishing works that are against public morality, policy or illegal. Thereof, the Penal code section 177, prohibit the publication of these works as excerpted above.
But how can we determine whether a publication is extremely Offensive? CJ Cockburn in R v Hicklin said that : “The test for obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of the sort may fall.”
This test is the standard for common law jurisdiction, including Zambia, this test was used in the case of Leco Limited v The People the high court of Zambia adopted the Hicklin test of obscenity it held that although the picture in the instant case was offensive to modest, it nevertheless did not have the tendency to corrupt the morals of those minds that might be open to such offensiveness even if by all that was meant was convert sexual fantasy.”
Contemporary Community Standard
A contemporary community standard is a legal test based on local social values, average adult perspectives, and changing public norms used to decide if material is legally obscene. CJ Cock burn stated in Hicklin case that, “ there are a lot of great many publication of high repute in literary production of this time, the measure of such publication whether they are immodest or immoral, is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences.’
However several jurisdiction have been gradually moving away or rather reshaping their standard test of obscenity to the contemporary community standard. The long traditional Hicklin test focused on whether isolated text or pages might corrupt particularly susceptible person. The contemporary test on the other hand emphasis that the matter must be evaluated as a whole and with regards to it’s purpose. The supreme court of India in aveek sarkar v the state of west Bengal, observed that nudity alone does not make publication obscene; the predominant question is whether it appeals to prurient interest or amounts to undue exploitation of sex. This is was firmly established in Miller v. California, courts decide if an average local person finds that a work appeals to a dirty interest, shows sex in a bad way, and lacks true art or science value.
Analysis
The standard applied in Hicklin test solely applies to Zambia which are common law jurisdiction. The jurisdiction part is importance because the legal philosophy of this Court system are different because common does not recorgnise intellectual property in obscene material while in civil law jurisdiction they do recorgnise obscene and vulgar material and statement as intellectual property. Further, common law is derived from the law of a common man, which is the law that is guided by morality as first source of law of that person in that society. Hence the understanding is that charging a material immoral especially in African communities like Zambia it’s not about appealing to prurient interest but whether it’s is considered as a taboo among customary men. A taboo is a strong social or religious custom that forbids touching, saying, or doing a specific thing. (My emphasis)
Approach in United States America and other Civil Law Jurisdiction
The legal philosophy of America courts as espoused In Mitchell Brothers Film Group v. Cinema Adult Theater
Godbold, J. stated as follows: the pursuit of creativity require freedom to explore into the gray areas, to the cutting edge, and even beyond. Obscenity, on the other hand, is a limiting doctrine constricting the scope of acceptability of the written word. Denying Copyright protection to works adjudged obscene by the standards of one era would result in lack of copyright protection (and thus lack of financial incentive to create) for works that later generations might consider to be not only non-obscene but even of great literary merit. Many works that are today held in high regard have been adjudged Obscene in previous era.
The implications of this pronouncement is the protection afforded to copyright work which is obscene us extended to obscene laws it’s for this reason that the contemporary standard test applied in civil jurisdiction is narrower than that of common law. In the case of Miller v California the supreme court justice stated that the basic guidelines for the obscenity test are:-
a) Whether the average person apply contemporary community standards would find the works, taken as whole appeals to the prurient interest
b) Whether the work depicts or describes in patently offensive was, sexual conduct specifically defined under law
c) Whether the work taken as a whole lacks serious literary, artistic, political or scientific value
Analysis
A prurient interest is an unnatural, shameful, or morbid focus on sexual matters. It describes an unhealthy and excessive curiosity about sex that goes beyond normal human interest. Therefrom, the literal interpretation of this statement, implies that a material that is sexual or appeals natural sexual desire should not be charged as obscene. unless it appeals to unnatural or morbid. However, the objective test for a African nation like Zambia, should be that of a reasonable customary man; would he consider a material with those sexual content, or pornographic scene as obscene or not? because the mischief that legislature was trying to cure is the circulation of any corrupt material regardless of whether morbid, unnatural or shameful. (My emphasis)
It is submitted that though some jurisdiction such as Zambia and the United Kingdom, as shown in the above cases, that regardless whether the literary or artistic or scientific work has an artistic value it will still be held as obscene when charged and the courts will refuse to enforce Copyright, if the work itself is against public policy, courts in other jurisdictions, such as the United States and Canada, have however, enforced copyright even when the work is against public policy or is obscene. Thus, in Baron v. Hooda, the Court states best served by allowing all creative Works to be accorded copyright protection regardless of subject matter or content, trusting the public taste to reward creators of useful works and deny creators of useless works any reward. Congress has decided that the constitutional goal of encouraging creativity would not be best served if an author had to concern himself not only with the marketability of his work but also with the judgment of government officials regarding the worth of the work.
About Author
TEDDY CHIPOYA IS A THIRD YEAR LAW STUDENT AT THE COPPERBELT UNIVERSITY AND SERVES AS JUDICIARY JUSTICE AND CLERK FOR THE COPPERBELT UNIVERSITY LAW ASSOCIATION JUDICIARY. EDITOR IN CHIEF OF AMULUFEBLOG AND HEAD DEPUTY OF THE INTERNATIONAL LAW DIPLOMACY SOCIETY HUB. HE WRITES THIS ARTICLE IN HIS PERSONAL CAPACITY
BIBLIOGRAPHY
STATUTE
Constitution Chapter 1 of the Laws of Zambia
Cyber Crimes act no 4 of [2025]
Penalty Code chapter 87 of the Laws of Zambia
Berne Convention for the Protection of Literary and Artistic Works, July 24, 1971, S. Treaty Doc. No. 99-27, 828 U.N.T.S. 221.
CASES
Baron v Hooda (1987) 17 CPR (3d) 161; Canada Federal Court, Trial Division.
Regina v. Hicklin [(1868) L.R. 3 Q.B. 360], a
Miller v California 413 U.S. 15 (decided June 21, 1973)
Donoghue v Allied Newspapers Ltd [1938] Ch 106
Leco Limited v The people (1975) Z.R. 16 (H.C.).
Mitchell Brothers Film Group v. Cinema Adult Theater 135 604 F.2d 852; US Court of Appeals, 5th Circuit 1979.
Other
Black’s Law Dictionary (such as the 9th, 10th, or 11th Editions).
“TABOO Definition & Meaning – Merriam-Webster” https://www.merriam-webster.com/dictionary/taboo
"PRURIENT INTEREST" https://thelawdictionary.org/prurient-interest/
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