ACT No. XXXVII of 2016 AN ACT to amend the Criminal Code, Cap. 9. and to provide for any other matters ancillary or consequential thereto.

I assent.

D OLORES C RISTINA

(L.S.)

Acting President

19th July, 2016

ACT No. XXXVII of 2016

AN ACT to amend the Criminal Code, Cap. 9. and to provide for

any other matters ancillary or consequential thereto.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows:-

(1) The short title of this Act is the Criminal Code Short title and

(Amendment) Act, 2016 and this Act shall be read and construed as commencement.

one with the Criminal Code, hereinafter referred to as the "Code".

(2) This Act shall come into force on such date as the Minister

responsible for Justice may by order in the Gazette establish and

different dates and transitory arrangements may be established in

respect of different provisions and purposes of this Act.

Article 82A of the Code shall be amended as follows

Amendment of

article 82A of

the Code.

(a)

in sub-article (1) thereof the words "violence or

racial hatred" shall be substituted with the words "violence or

racial or religious hatred" and the words "or whereby such

violence or racial hatred" shall be substituted with the words "or

whereby such violence or racial or religious hatred"; and

(b) in sub-article (2) thereof the words "violence or racial

hatred" wherever they occur shall be substituted with the words

"violence or racial or religious hatred".

Articles 163 and 164 of the Code shall be deleted.

Deletion of

articles 163 and

164 of the Code.

Sub-article (1) of article 165 of the Code shall be amended

as follows

(a)

the words "of the Roman Catholic Apostolic

Religion or of any other" shall be substituted by the word "any";

and

(b) the words "shall on conviction be liable to

imprisonment for a term not exceeding one year" shall be

substituted by the words "shall, if the impediment or

disturbance causes no serious danger to public order be liable to

a punishment of up to six months imprisonment and if such a

serious danger results the punishment shall be increased by one

degree".

Immediately before article 198 of the Code, the heading of

Sub-title II of Title VII of Part II of Book First shall be substituted by

the following new heading

"Sub-title II

OF SEXUAL OFFENCES".

Article 208 of the Code shall be substituted by the

following new article

208. (1) Whosoever displays or

"Display of

pornographic

permits to display any pornographic material

material in

public places.

in a public place shall, on conviction, be

liable to a fine (multa) of not less than one

thousand euro (€1,000) and not more than

three thousand euro (€3,000).

(2) For the purposes of this article,

"public place" means any place to which the

public have or are permitted to have access,

whether on payment or otherwise

Provided that for the purposes of

this article a "public place" shall not include

a place to which the public are permitted to

have access only on payment which is or

includes payment for the said display, or to a

shop or establishment, or to any part of such

shop or establishment, to which the public

can only gain access by passing beyond an

adequate warning notice

Provided further that these

exclusions shall only apply where minors are

not permitted to enter while the display in

question is continuing.

(3) This article shall not apply to any

material

(a)

that is included by any

person in a television broadcasting

service regulated by the Broadcasting

Authority within the meaning of the

Broadcasting Act; or

(b) included in the display of

an art gallery or museum and visible

only within the gallery or museum

where the organiser of the display has

taken reasonable precautions for the

protection of minors; or

(c)

included

in

a

film

exhibition which is subject to the

Cinema and Stage-Age Classification

Regulations; or

(d) which otherwise serves the

public good on the ground that it is in

the interests of science, literature, art

or learning or other objects of general

concern.

(4) For the purposes of this article,

material shall include anything capable of

being displayed, except that it does not

include an actual human body or any part

thereof and nothing in this article shall be

construed as permitting any show of live and

actual sexual activity involving the sexual

organs made solely or principally for the

purpose of sexual arousal. In determining for

the purpose of this article whether any

displayed material is pornographic

(a)

there shall be disregarded

any part of that material which is not

exposed to view;

(b) account may be taken of

the effect of juxtaposing one thing with

another.

(5) A warning notice shall not be

adequate for the purposes of this article

unless it complies with the following

requirements:-

(a)

The warning notice must

contain the following words, and no

others:-

"WARNING Persons passing

beyond this notice will find material on

display which they may consider

indecent. No admittance to persons

under 18 years of age.";

(b) the word "WARNING"

must appear as a heading;

(c)

no pictures or other matter

shall appear on the notice;

(d) the notice must be so

situated that no one could reasonably

gain access to the shop or

establishment, or part of the shop or

establishment in question, without

being aware of the notice and it must

easily be legible by any person gaining

such access.".

Immediately after article 208C of the Code there shall be

Addition of new

articles 208D

added the following new articles

and 208E to the

Code.

208D. (1) Whosoever,

for

gain,

"Offences

relating to

distribution, or for display in a public place

extreme

pornographic

or in a place accessible to the public,

images.

manufactures, prints, or otherwise makes, or

introduces into Malta, or acquires, keeps,

puts into circulation or exports, any extreme

pornographic image shall, on conviction, be

liable to imprisonment for a term from

eighteen months to three years or to a fine

(multa) of not less than three thousand euro

(€3,000) and not more than six thousand

euro (€6,000), or to both such imprisonment

and fine.

(2) Whosoever trades in any image

mentioned in sub-article (1), even if such

trade is clandestine, or distributes any such

image or displays any such image in public

or in a place accessible to the public, shall,

on conviction, be liable to the punishment

prescribed in sub-article (1).

(3) It is a defence for a person

charged with an offence under this article to

show that

(a)

he had a legitimate reason

for being in possession of the image

concerned;

(b) he had not seen the image

concerned in any material, article or

communication obtained or received

by him and did not know, nor had any

cause to suspect that such material,

article or communication contained an

extreme pornographic image;

(c)

he was sent the image

concerned without any prior request

having been made by him or on his

behalf

Provided that it shall not be

a defence under paragraph (c) if such

person has seen, or is reasonably

suspected to have seen the image, and

kept the image concerned for an

unreasonable amount of time;

(d) he

directly

and

consentingly participated in the act

depicted in the image

Provided that it shall not be

a defence under paragraph (d) if such

person shows, gives or offers for sale

the image to any person who was not a

direct participant in the act depicted

Provided further that it

shall neither be a defence under this

paragraph if the act depicted in the

image involves

(i) an act of rape or other

non-consensual

penetrative

activity;

(ii) an act of necrophilia or

bestiality;

(iii) a sexual act or image

involving a minor.

(4) For the purposes of this article an

image shall be regarded as an extreme

pornographic image if it is so described or

defined by regulations made under sub-

article (5) or is otherwise to be so regarded

in accordance with any regulation made as

aforesaid.

(5) The Minister responsible for justice

shall make regulations for the purpose of

describing or defining or otherwise

establishing what is to be regarded as an

extreme pornographic image for the

purposes of this article and may by such

regulations make provision regarding the

criteria to be followed for that purpose and

may make different provisions for different

circumstances and different purposes.

208E. (1) Whosoever, with an intent

Non-

consensual

to cause distress, emotional harm or harm of

disclosure of

private sexual

any nature, discloses a private sexual

photographs

photograph or film without the consent of

and films.

the person or persons displayed or depicted

in such photograph or film shall on

conviction be liable to imprisonment for a

term of up to two years or to a fine (multa) of

not less than three thousand euro (€,3000)

and not more than five thousand euro

(€5,000), or to both such imprisonment and

fine.

(2) A person shall not be guilty of an

offence under this article if:-

(a)

he has disclosed the sexual

photograph or film solely to the person

or persons displayed or depicted in

such photograph or film; or

(b) the

disclosure

was

necessary for the purpose of

preventing, detecting or investigating a

crime; or

(c)

to the extent that it is

reasonably required, the disclosure is

authorised by a court or tribunal in the

course of judicial proceedings

Provided that where authorisation

is so granted by a court or tribunal, the

sexual photograph or film shall, without

delay, be sealed by the registrar or deputy

registrar of that court or tribunal and shall

only be accessible by the parties to the suit

or to their authorised legal representatives.

(3) When the offence provided for in

this article is committed as a means or in the

context of blackmail the punishment shall be

increased by one degree.

(4) In this article

"disclosure" shall be construed as

also

including

the

publication,

distribution, trade, circulation or

unauthorised use of private sexual

photographs and films, by any means;

"private" shall refer to any

photograph or film taken without the

consent or knowledge of the person or

persons depicted therein, or to any

photograph or film which was never

intended for public consumption;

"sexual" shall include the

depiction of all or part of a person’s

exposed genitals or pubic area, or, in

the case of females, of the breasts, or of

any content that, when taken as a

whole, a reasonable person would

consider to be sexual because of its

nature;

"photograph or film" means a

moving or still image or data, stored by

any means, which is capable of

conversion into a moving or still

image.".

Sub-article (3) of article 82 of the Customs Ordinance shall Consequential

amendment to

be substituted by the following

the Customs

Ordinance.

"(3) Where the Commissioner has reason to suspect that

any material containing extreme pornographic images has been

imported into Malta in contravention of any regulations made

under sub-article (1), but so that no other offence against this

Ordinance is committed in connection with or for the purpose of

the importation thereof, the Commissioner may detain and open

and, subject to the provisions of the next following sub-article,

with the written authority of the Minister responsible for

customs, destroy such material.".

The Pornography and Obscenity Regulations are hereby

repealed.

Passed by the House of Representatives at Sitting No. 416 of the

12th July, 2016.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

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