The concept of obscenity is relative. The definitions of obscenity vary from society to society and from country to country depending on the moral principles, decency codes, social setting of that particular country. In this presentation, Siromani Dhungana discusses Obscenity Law in Nepal and the possibilities of introducing specific obscenity law.

1. Obscenity Law in Nepal
Siromani Dhungana
Journalist, Researcher & Media Educator
Kathmandu, Nepal
Email: meshiromani@gmail.com | siromanidhungana@gmail.com
Twitter: siromanid
Facebook: Siromani Dhungana
Linkedin: Siromani Dhungana

2.  “Public morals differ widely. There is
no universally applicable common
standard.”
- United Nations Human Rights Committee

3. Some definitions of Obscenity-I
 An obscenity is any statement or act which
strongly offends the prevalent morality of the time
- Merriam-Webster Dictionary
 obscenity, legal concept used to characterize
certain (particularly sexual) material as offensive
to the public sense of decency. A wholly
satisfactory definition of obscenity is elusive,
however, largely because what is considered
obscene is often, like beauty, in the eye of the
beholder. Although the term originally referred to
things considered repulsive, it has since acquired
a more specifically sexual meaning.
(From: http://www.britannica.com)

4. Some Definitions of Obscenity-II
 The concept of „obscenity‟ does not lend itself easily to
definition. Justice Potter Stewart of the US Supreme Court,
despairing of the task of defining pornography, once famously
wrote: “I shall not today attempt further to define the kinds of
material I understand to be embraced within that shorthand
description; and perhaps I could never succeed in intelligibly
doing so. But I know it when I see it.”
From: Article 19 (http://www.article19.org/pages/en/religion-morality-
blasphemy-obscenity-more.html)
 It is not possible to find in the domestic law of the various
Contracting States a uniform European conception of morals.
The view taken by their respective laws of the requirements
of morals varies from time to time and from place to
place, especially in our era which is characterised by a rapid
and far-reaching evolution of opinions on the subject.
- From: European Court of Human Rights

5. Constitutionality of Obscenity
Law
 In order to determine whether any law is contrary
to the right to freedom of expression as
guaranteed under national constitutions and
international laws, the following questions must
be examined:
1. Does the restriction interfere with the right to
freedom of expression as guaranteed under the
Constitution?
2. Is the restriction "prescribed by law" or "under the
authority of any law"?
3. Does the restriction serve a legitimate objective of
sufficient importance to warrant overriding a
constitutionally protected right?
4. Is the restriction reasonable, and necessary or
justifiable in a democratic society?
(source: Obscenity Laws and Freedom of Expression:
A Southern African Perspective , published by Article 19)

6. Obscenity Law in Nepal
 In Nepal, there is no separate act/law
pertaining to obscenity and lack of
specific laws often creates problem to
claim whether something is obscene
or not.
 However, obscene contents are not
allowed to publish or transmit
according to some media related laws.
Some Public (Crime and Punishment)
Acts are exemptions.

7. Some Press Laws that Prohibit
Obscenity
 Some Public (Crime and Punishment)
Act, 2027 BS (1970)
 National Broadcasting Act, 1993
 Press and Publication Act, 1991
 Electronic Transaction Act, 2006
 Motion Picture (Production, Exhibition
and Distribution) Act, 1969

8. Obscenity Law in Nepal -1
 Some Public (Crime and Punishment)
Act, 2027 BS (1970)
 Section 2 of the Act is about „Prohibition against
some public crimes‟
 2(c) of the act prohibits anyone “to break public
peace or to make obscene show by using obscene
speech, word or gesture in public place.”
 The amendment of the act in 1982 further clarified
the same provision:
“To print or publish any obscene materials by using
obscene language or by any word or picture which denotes
obscene meaning; or to exhibit or sell or distribute such
obscene publication in public place other than the purpose
of public health or health science.”

9. Obscenity Law in Nepal – 11
 National Broadcasting Act 1993
The Section 15(1)(a) of National Broadcasting
Act 1993 prohibits the broadcasting of obscene
advertisements.
It prohibits the broadcasting of “vulgar materials.”

10. Obscenity Law in Nepal - 111
 Press and Publication Act 1991
◦ Section 14(e) of the Press and Publication
Act 1991 prohibits the publication of
materials in books, newspapers, and
magazines which are contrary to decent
public behavior, morality, and social
dignity.
◦ Section 16(e) empowers government to
prohibit the importation of publications
from abroad which are contrary to decent
public behavior, morality and social
dignity.

11. Obscenity Law in Nepal - IV
 Electronic Transaction Act, 2006
◦ Section 47(1) of Electronic Transaction
Act, 2006 prohibits the publication or
exhibition of materials contrary to public
moral and decency.

12. Obscenity Law in Nepal - V
 Motion Picture (Production, Exhibition
and Distribution) Act 1969
◦ Section 8 of the Cinema (Make, Release,
and Distribution) Act 1969 empowers the
Cinema Censor Board to restrict the
release of any movie that contains scenes
which are contrary to the public benefit,
decency and morality.

13. Complexities of Obscenity
Laws
 The global network of freedom of
expression IFEX quotes executive
director of Article 19 Andrew
Puddephatt:
"Protecting society against harm that may
flow from pornography and other obscene
materials must be balanced with ensuring
respect for freedom of expression and
preserving the free flow of information and
ideas."

14. International Instruments on Obscenity
1. Convention for the Suppression of the
Circulation of, and Traffic in, Obscene
Publications concluded at Geneva on 12
September 1923 and amended by the
Protocol signed at Lake Success, New York,
on 12 November1947.
2. Agreement for the Suppression of the
Circulation of Obscene Publications, signed
in Paris on 4 May, 1910, amended by the
Protocol signed at Lake Success, New York,
4 May 1949.
3. Agreement for the Suppression of the
Circulation of Obscene Publications. Paris,
4 May 1910.

15. First Amendment &Obscenity
 The First Amendment grants broad freedom to a licensee and
its on-air performers to choose the content of speech.
However, this freedom is not absolute. Obscene speech is
not protected by the First Amendment and its broadcast is
prohibited. Broadcast speech is deemed obscene if (a) it
appeals to the prurient interest, (b) it describes or depicts
sexual conduct in a patently offensive manner, and (c) taken
as a whole, it lacks serious literary, artistic, political, or
scientific value. Under this definition, speech is deemed to
appeal to the "prurient" interest if it appeals to lustful ideas or
desires.
 Broadcasting obscenity can result in severe fines and the
very real possibility that the FCC will not renew a station's
broadcast license. In addition, the FCC has previously
indicated that any complaints involving obscene broadcast
material will be turned over to the Department of Justice for
possible prosecution. If convicted under federal law, a violator
may receive up to two years‟ imprisonment in addition to very
substantial fines.
(From: Missouri Broadcasters Association http://www.mbaweb.org/)

16. No clear Definition in Nepal
 At present, Nepal lacks clear definition of the
term obscenity.
 Laws that prohibit obscene content are
excessively vague and not clear enough to
prosecute the guilty.
 Nepal‟s obscenity laws are based more on
offense rather than harm
 To provide protection against harm from
obscene materials while also respecting the
principle of freedom of expression, the state
should bring a new act which will set out a
clear and harm-based definition of what
constitutes obscene materials in respect to
the international standards.

17. Conclusion
The issue of obscenity and legitimacy of legal
controls on sexually explicit material, both print
and broadcast media, has to be defined clearly.
Also, the government has to be prepared to
prevent possible harm from obscene contents
in emerging new media. Striking the balance
between the fundamental right to freedom of
expression and the public interest in protecting
children and safeguarding others from harm is
indeed far from easy (Article 19). But the
government should do it without any delay to
safeguard vulnerable people and also to
safeguard international standards of Freedom
of Expression.

18. Thank You
Siromani Dhungana
Lecturer (Journalism and Mass Communication)
Madan Bhandari Memorial College
Tribhuvan University
Kathmandu, Nepal
Email: meshiromani@gmail.com | siromanidhungana@gmail.com
Twitter: siromanid
Facebook: Siromani Dhungana
Linkedin: Siromani Dhungana
(Thanks to Kathmandu-based copy-editor Amendra Pokhrel
amendrapokharel@gmail.com for his contribution)