Obscenity and indecency

"Indecent" (외설) means morally or sexually offensive. Its noun "indecency" is often discussed or disputed in line with obscenity (음란).

Is it possible to draw a line between obscenity and indecency of art works?

This argument is increasingly important when new media with multimedia contents are perpetrating into our daily life. One thing is clear that minors shall be anywhere anytime off limit from obscene contents while adults may be exposed to indecent works on a limited basis. So obscene contents are specifically treated as harmful contents to the youth under the Juvenile Protection Act.

Key words
obscenity, art works, freedom of speech, the Internet

Obscenity and Art
As far as art works and sculptures are concerned, there have been endless arguments inside and outside of court rooms. Professor Gwang-Soo Mah's Joyful Sarah (1992), and Novelist Jeong-il Chang's Tell Me a Lie (1997) are good examples among others.

In Korea, Francisco Goya's The Nude Maja gave birth to the first Supreme Court decision concerning the obscenity of visual arts. As time goes by, the Judiciary Branch has experienced some changes in its decisions regarding obscenity. Recently, in 2008, it admitted that the concept of obscenity is relative and fluid with the changes of the society and age, and it must be abstract in close relationship with social customs, ethics, religion at the time. The Supreme Court said, "Though it is decided on the basis of an average man's sentiment in the context of conventional norm as the case may be, the concept of obscenity should be formed normatively on the basis of a certain value judgment" and suggested the following standards:


 * "When we observe and assess the object as a whole, beyond the simple sense of indecency or erroticism, obscenity shall amount to significant damage to, and distortion of, the human dignity or value, which deserves to be respected and protected, by expressing or describing sexual part of body or action of a human being in an explicit manner, and further by resorting only to sexual interest wholly or dominantly with little regard to literary, artistic, ideological, scientific, medical, and educational value. Whether the object belongs to obscenity does not depends on the subjective intention of the creator of such object, but on the objective and normative assessment, on the basis of the sound common sense of the contemporary community, conducted by an average man."

Obscenity via the Internet
The Internet is also open to sexual expression ranging from classic literature to hardcore pornography. In this regard, it is more often than not argued at home and abroad how to stop the youngster's access to obscene contents malicious to the youth.

The above Supreme Court decision in March 2008 was rendered with respect to the "obscenity" set forth in the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (the "Data Protection Act"). In this case, the Supreme Court held that it is true that the content is considerably indecent and errotic when it observes and assesses the videos rated as "Teenager-restricted" by the Korea Media Rating Board, as a whole. However, the Supreme Court said that it cannot determine that such content expresses or describes sexual part of body or action of a human being in an explicit manner, and that such content significantly damages and distorts the human dignity or value, enough to be punished by the Criminal Act. As a result, the Supreme Court reversed the decision of the Appellate Court.

Legal standards
In this connection, the Constitutional Court ruling in 2002 seemed to influence the change of the case law. The Constitutional Court held that, after differentiating two concepts of "indecency" and "obscenity", the former expression is protected by the Constitutional freedom of speech, while the latter expression, out of the Constitutional protection, shall be regulated by law.

On the ground that, if the publications for the adult are prohibited as a 'indecent publication' for the protection of the youth, it means the standards for the adult to know are forced to be lowered to the level of the minors by the State, the Constitutional Court said that the provisions of the Act on the Registration of Publishers and Printers are contrary to the principle of clarity and in breach of the freedom of press and the adult's right to know, as a result, unconstitutional.

In the United States, Congress established the Communications Decency Act (CDA) in Title V of the Telecommuncations Act of 1996. Two provisions of the CDA were challenged by civic groups, however, because the CDA lacked the precision that the First Amendment requires when a statute regulates the content of speech. Although the government has a compelling interest in protecting children from potentially harmful materials, the CDA set out to pursue that interest by suppressing constitutionally protected adult speech. In place of the CDA, Congress enacted the Child Online Protection Act (COPA), of which enforcement was halted because it failed to satisfy a strict scrutiny test under the First Amendment. A series of U.S. Supreme Court decisions held that the compelling government interest of protecting youth could be inferior to the fundamental right of free speech.

Obscenity and Freedom of Speech
As explained above, there is some difference between "obscenity" and "indecency". The former means hardcore pornography such as child pornography and violent pornography beyond the freedom of speech, while the latter softcore pornograph which should be off-limit from youngsters. In other words, obscenity is legally regulated because it could harm the mental tranquility of the youth, but indecent or errotic expression is admissible insofar as youngsters' access is denied.

Origin of the World
In this regard, unexpectedly abrupt action by a professor of law, who currently serves as a member of the Broadcasting and Communications Ethics Committee, aroused heated arguments across the nation. Professor K.S. Park, reportedly a U.S. citizen, said, "I don't want to be a Larry Flynt of Korea, but I have to inform Korean citizens of what the Committee is doing to estrange the prohibited content from the Internet." He posted the drawings of male genitals which were ordered by the Committee to be deleted from the individual blog. He also posted the allegedly artistic painting by French artist Gustave Courbet, The Origin of the World on his blog. However, the issue did not concern the "obscenity or indecency" of the visual works in general. The Committee was doubtful of the public exhibition of such drawings in question on the Internet media as may be accessed by the minors. So to speak, indecent drawings are permitted to the adults in a restricted area, but it is still prohibited to post such pictures on the Internet easily accessible to the youth.