The last nail in the censorship coffin?

It was only six years ago that a sombre procession of around 100 black-clad protesters marched through Valletta carrying a makeshift coffin labelled ‘Art is Dead’. Organised by the ‘Front Against Censorship’, this mock funeral cortege had been sparked mainly (but not uniquely) by the criminal prosecution of an author and magazine editor over publication of an ‘obscene’ short story earlier that year.

Novelist Alex Vella Gera faced a possible six months imprisonment for writing the offending story (Li Tkisser Sewwi), alongside Mark Camilleri for publishing it in a magazine distributed for free on the University campus.

Nor was this the only case in which literary or artistic expression was somehow suppressed or restricted on grounds of public decency. Some months earlier, local theatre company Unifaun’s attempts to stage an Andrew Nielsen play (Stitching) were thwarted by the Stage and Film Classification Board, resulting in a Constitutional case that the producers of Stitching were to go on to lose.

Elsewhere there was mounting evidence that this censorial approach to art was on the increase in 2009. Speaking at the ‘funeral’ protest, the Front Against Censorship’s Ingram Bondin warned of an escalation in cases where artists and authors could be “criminalised and potentially sent to jail just because their art might be unpalatable to certain individuals”. 

“While last year there were at least six attempted cases of censorship, in the first seven months of this year there were at least eight,” he pointed out. 

But even as Bondin spoke from the podium, the same 1975 law that formed the basis of the Li Tkisser Sewwi prosecution was in the process of being revised… to radically increase the penalties for crimes against ‘public morality’. 

The pendulum swings

From this perspective, the turnaround since that time has been little short of extraordinary. For starters, the case against Vella Gera and Camilleri did not go according to the approved script. The law courts, at both first instance and appeals stage, upheld the defence’s argument that freedom of expression was enshrined in the Universal Human Rights Charter. Meanwhile, events in the background (even if technically unrelated) radically altered the political landscape that had previously underpinned the State’s entire attitude to issues of free speech. 

The 2011 divorce referendum illustrated that the so-called ‘traditional’ views of morality were no longer widely agreed upon in the country. And with a hotly contested election in the offing, political parties began moderating their own positions to adjust to the new terrain.

In 2012, Tourism Minister Mario de Marco (also responsible for art and culture) announced a legal reform which effectively abolished the Stage and Film Classification Board: introducing instead a system of self-classification, based on the model used in the UK and elsewhere. This was not enough to overturn the ban on Stitching – upheld by the Constitutional case – but it did remove the legal infrastructure which made the ban possible.

The following year, the Labour Party would convincingly win the election, in (admittedly small) part on the promise of a more ‘progressive’ approach to such matters. And this week, Justice Minister Owen Bonnici announced the fruition of part of that promise, in the form of a raft of legal amendments that seem aimed at removing all (or most) remaining vestiges of the previous State censorship machine.

Among the more relevant changes are the removal of criminal sanctions for “vilification of the Roman Catholic religion, and other cults tolerated at law”: an offence that previously entailed imprisonment of up to six months. This law had been cited on numerous occasions in recent years, and accounts for at least two of the eight 2009 prosecutions mentioned by Bondin at that Valletta protest.

Meanwhile, the same 1975 obscenity laws invoked against Vella Gera and Camilleri, which generically outlawed any expression that ‘unduly emphasised sex, crime, horror, cruelty and violence’, will also be removed. In its place there will be a new law that, unlike its predecessor, provides a legal definition of ‘pornography’: namely, “anything capable of being displayed [that exhibits] live and actual sexual activity involving the sexual organs made solely or principally for the purpose of sexual arousal.”

Under the new legislation, only “extreme pornography” will remain subject to criminal sanction – defined as “an act which threatens a person’s life, an act which results in a person’s severe injury, rape or a non-consensual sexual activity, sexual activity involving a human corpse, and any act involving a person and an animal.”

Conversely, this also means that ‘mainstream’ pornography – hitherto illegal in Malta – will now be decriminalised… and perhaps unsurprisingly, it is this aspect of the legislative reform that has to date attracted most media attention.

The good, the bad and the ugly

In Bonnici’s words, the reform aims to challenge existing perceptions that the government’s role is to safeguard public morality. “The State cannot play moral custodian,” he told journalists when launching the bill last Thursday. “Adults should not be told what they can and cannot watch.[…] We need to recognise that morality changes over time – it is not a static thing, and legislation needs to acknowledge this.” 

Similar sentiments were echoed by Mario de Marco: architect of the initial censorship reform, and now shadow justice minister.

“Laws are generally meant to reflect society and its realities,” he said in comments to this newspaper. “The good, the bad and the ugly. Whilst I have not yet had the occasion to read through the proposed legislative amendments, and ultimately the devil is in the detail, the thrust seems to be in the direction of a state of natural progression towards today’s realities. Not all realities may be positive, and some beauty spots may have become warts. But it is better to recognise and face up to these realities, than to ignore.”

It is a direction the Opposition seems to endorse, too. “Freedom of expression is undoubtedly one of the most important fundamental human rights,” de Marco adds. “Only a few months ago we were asserting “je suis Charlie” in solidarity with the slain members of the Charlie Hebdo journalistic team, and in affirmation that freedom of expression – even if provocative – is the ultimate reflection and scale by which to gauge true democracy.”

It remains to be seen, however, what impact the legislative changes will have once enacted. Reactions to the proposals have so far been mixed: though broadly welcomed by those directly involved in the creative arts, public response has also been characterised by fears of a pendulum swing in the opposite direction… notably in connection with the prospect of a future Malta dotted with sex shops. 

A ‘Copernican revolution’

Activists like Ingram Bondin argue that such reactions tend to miss the point of what the reform is trying to achieve.

“Many media outlets focused on the fact that the new pornography law would allow pornographic images or items to be displayed in restricted places which are closed to minors,” he told MaltaToday. “This immediately led to the misleading conclusion that this reform would be about allowing porn shops in Malta. While this is true, it totally misses the point that this reform was the product of a long fight against artistic censorship which started in late 2009 after the ban on Unifaun Theatre’s play Stitching and the prosecution of Mark Camilleri and Alex Vella Gera in the ir-Realta’ case…” 

Bondin himself welcomes the proposals, which he admits exceeded his expectations.

“The provisions of the bill are a definite improvement over what we had before. The removal of the law protecting religion from vilification is a bold measure against outdated privilege and in favour of freedom of speech. One could say that it came as somewhat of a surprise, since it was widely regarded as politically impossible to achieve up to a few years ago.”

As for the revisions to allow pornography, he argues that this was a step in the right direction. “For starters we now have a sensible definition of what pornographic material is. An item is now classified as pornographic if ‘its intention is principally to cause sexual arousal’. Before this reform, something would count as pornographic even if it ‘put undue emphasis on sex’. Moreover offences related to distribution of pornographic material, for instance, have been decriminalised. Alex Vella Gera and Mark Camilleri would never have been arraigned on the Li Tkisser Sewwi short story under these measures. These distinctions might seem marginal, but in reality they are sturdy guarantees for artistic freedom…”

All this, he adds, seemed an almost unattainable target just a few years ago.

“Arriving at this point was not a foregone conclusion. Unifaun’s Constitutional case claiming the ban had broken their freedom of speech was even rejected by the Constitutional court. No help could be expected from the custodians of civil rights in these issues.

“Also, until the divorce referendum of 2011, which threw the conservative establishment in disarray, the cases of censorship did not decrease, but actually intensified. Even after the referendum, when suddenly everyone wanted to appear liberal, Mario de Marco could only proceed with a very timid reform of theatre censorship – implementing self-classification, which although important, left the overarching repressive apparatus almost unchanged. This is why this reform is so significant, and why it deserves to be acclaimed as a Copernican revolution in artistic freedom.”

Art can still be censored

Doubts however linger as to whether this reform will achieve its ultimate goal – to safeguard freedom of expression.

Like most of the people who campaigned against censorship in the Stitching case, Chris Gatt – former artistic director at the St James Centre for Creativity, welcomed the amendments as “the last nail in that coffin”: referring in part to earlier campaigns against State censorship, particularly in theatrical performances.

Asked whether the changes would be enough to safeguard freedom of expression, Gatt cautioned against taking anything for granted. 

“We should not assume that censorship has been banned, or anything of the sort. There are always other more discreet forms of censorship,” he remarked. 

Sticking to the theatre as an example, Gatt observes how much of the local output remains dependent on public or private sponsorship, which often places restrictions on what can or cannot be staged locally.

“It is important to see whether government finances are a poison chalice in this sense. And ditto so-called private sponsorship, which often kills the very soul of creativity with unreasonable demands for exposure, regardless of the aesthetic experience.”

Another outstanding issue concerns venue ownership, which tends to make availability dependent on official ‘approval’ of the script… even in the absence of a classification board. Similar considerations apply also to art exhibitions and other areas of creative expression.

“For example, in Malta theatre spaces are owned either by the government or by the Church. Ideas can be muffled by not being given the oxygen of publicity. Events can be closed because of health and safety issues. Spontaneous street art can be stopped because it has no licence. I am not saying that we need to demand for more legislation, or that this is necessarily happening…  although one should always keep an eye open as to where funds are going, and where they are not going. However, it is important to question the editorial policy of those that control the media and the spaces which were created for creative expression, and ask if there are any biases.”

A concise history of censorship

1559 Pope Paul IV issues index of 550 censored authors and other individual titles. Local inquisitors were so eager to implement the index that the burning of these books was held in the Grand Harbour, the only point of entry to the island.

1600s Inquisition Tribunal perceives writing and literacy as a potential promoter both of heretical behaviour and social protest among the Maltese. Vittorio Cassar is admitted to the Inquisition for owning several prohibited books which he claimed to have received from a friend. Vittorio got scared and confessed his ‘sins’ and although not absolved he handed the books to the Inquisition for burning.

1609 Inquisitor Evangelista Carbonese orders burning of 53 books in Vittoriosa square “in the presence of a multitude of people”.

1839 Now under British rule, the Governor of Malta’s ordinance number IV makes book and press censorship illegal unless there was good reason for it.

1933 Legislators introduce prison sentence for anyone found guilty of vilification of religion, religious objects, or religious sentiment.

1975 Obscenity laws make it illegal to possess pornography and also allows the director of Customs to ban entry to such material, whether printed or audiovisual.

1979 Mario Philip Azzopardi’s plan ‘Sulari fuq Strata Stretta’ banned by theatre censors and refused performance as it is deemed too controversial.

1981 A ban on several British journalists from entering Malta is lifted but Times of London still not allowed in Malta following publication of news reports deemed hostile to the Maltese government.

1982 Journalists and political activists from overseas were subjected to the Foreign Interference Act.

1986 Telemalta Corporation chairman Maurice Mifsud Bonnici and Xandir Malta head Toni Pellegrini found guilty of discriminating against Opposition leader Eddie Fenech Adami by censoring his name on the national television station.

1989 Board of Film Censors bans Martin Scorsese’s ‘The Last Temptation of Christ’ from local cinemas. Video version withdrawn.

1989 TV spot by health department promoting condoms in anti-AIDS campaign banned from airing on Xandir Malta, sparking protest by Zghazagh ta’ Taht l-Art, who publish a satirical and critical manifesto against censorship

1992 Dr Alex Comfort’s ‘The New Joy of Sex’ withheld by the Postmaster General and the Customs for being too “explicit”

1996 John Webster’s ‘The Duchess of Malfi’ censored by arts ministry, which ordered the director to cut a scene where the Duchess kicks a small crucifix just as she was going to be unjustly executed. 

1997 The Reduced Shakespeare Company banned by theatre censors from performing satirical masterpiece The Bible – The Complete Word of God on grounds that “the play would have offended religious sentiment at Lent.

2001 Playboy Magazine granted temporary entrance permit to Malta.

2009 Anthony Neilsen’s ‘Stitching’ banned by the new Classification board of Stage and Film. Unifaun takes the board to courts but loses case at all stages of the court protest. Novelist Alex Vella Gera and Mark Camilleri, publisher of student pamphlet Ir-Realtà, are charged in court under obscenity laws for the short story Li Tkisser, Sewwi.

2010 Police stop a satirical play at the Nadur Carnival after deeming its lyrical content unacceptable.

2010 Mario Azzopardi’s ‘Vampir U Rakkonti Ohra’ banned from public schools. 

2012 Camilleri and Vella Gera acquitted from all charges, with Magistrate Audrey Demicoli finding that the law provides no clear definition of what is obscene.