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The Sense and Nonsense of Criminalizing Transfers of Obscene Material: Criminalizing Privacy Violations

Dennis J Baker

University of Surrey - School of Law

March 27, 2009

Singapore Law Review, Vol. 26, p. 126, 2008

The recent distribution of nude photos of a number of high profile Hong Kong celebrities has provoked intense discussion about the state of Hong Kong's obscenity and indecency laws. In this paper, I argue that Hong Kong's laws prohibiting the transfer of obscene and indecent information and images between consenting adults are both under-inclusive and over-inclusive. The Control of Obscene and Indecent Articles Ordinance is under-inclusive in that it does not adequately criminalise grave violations of privacy. It is also over-inclusive because it is a blanket prohibition against the transfer by all parties (including consenting adults) of all forms of obscene and indecent materials. The laws unnecessarily violate the free expression rights of both the producer and consenting viewer of the offensive materials. The producer/publisher of such materials does not harm his or her audience as they willingly view such materials. The justification for maintaining a blanket prohibition against all transfers of such materials is invalid and utterly and totally out of touch with modern life in Hong Kong. The proponents of such laws have used Victorian positive morality considerations to justify continued criminalisation. These laws should be abrogated and replaced with a new piece of legislation that is narrowly tailored to deal with those types of offensive displays that are wrongful in a critical rather than a mere positive morality sense. Criminalisation should be limited to those offences that target children or use children in the production process, violate the rights of non-consenting adult audiences not to receive certain intimate information in certain public contexts, and violate privacy rights by publishing a person's private and intimate information without consent. If x obtains y's profoundly private information and publishes it without y's consent, then x violates y's privacy rights in a grave way. The violation in the right circumstances will justify a criminal law response rather than a mere civil law response. Similarly, if x and y copulate on a public bus they subject the captive audience to an offensive display which violates the non-consenting audience's right not to receive certain intimate information. I argue below that these types of privacy violations give the lawmaker a legitimate justification for invoking the criminal law.

Number of Pages in PDF File: 30

Keywords: criminal, law, privacy, offense, criminalization, obscene, consent, moralism, morality, critical, objective, harm, wrongs

JEL Classification: K14

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Date posted: March 27, 2009  

Suggested Citation

Baker, Dennis J, The Sense and Nonsense of Criminalizing Transfers of Obscene Material: Criminalizing Privacy Violations (March 27, 2009). Singapore Law Review, Vol. 26, p. 126, 2008. Available at SSRN: http://ssrn.com/abstract=1369123 or http://dx.doi.org/10.2139/ssrn.1369123

Contact Information

Dennis J. Baker (Contact Author)
University of Surrey - School of Law ( email )
Guildford, England GU2 7XH
United Kingdom
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