Thailand Law Forum Thailand Law Forum



By Alexander Shytov(1)

           The second point is that Thai penal code does not provide any definition what is obscene. This issue is left to prosecutors and courts to determine. The lack of clear standards of obscenity can hinder the efficiency of suppressing pornography in general and not only on the Internet. According to Thai courts, the standard of obscenity is contained in the characteristic of being ugly, indecent and shameful(4). In one case, it was held that if there is an attempt to make the lower part of the body dim or not clearly seen, then it cannot be characterized as obscene (5). In a more recent case, the Supreme Court held that “the picture of a woman which clearly displays her breast even though there is a cover on her sexual organ yet covering it in a provocative way, and who is also not in an appropriate and seemly position… is a picture which has an intention to tempt directly by awakening sexual lust; it is considered to be obscene according to the meaning laid down in Section 287(1)(6). This latter case contained several characteristics which can be taken into account when deciding whether there is an element of obscenity. These characteristics describe the behaviour which is not appropriate and unseemly. The decision uses also the terms ugly and shameful to characterize the nature of the picture.

          Apart from the characteristics of what should be considered to be obscene there is an important principle related to the intention of the image: the image must contain an intention to temp directly to awake sexual lust. This principle has some inherent weaknesses. First of all, image itself can hardly have an intention. Intention is an act of will. Image is an object which does not have will. Consequently, one possible meaning of this judicial statement is that the one who produced, or distributed, or possessed such an image had an intention to tempt in order to awake sexual lust. If it is so it makes very difficult for the prosecutor to bring anyone to be judged because of the difficulty of proving the intention to tempt. It is likely, that the best interpretation of this provision is that the pornographic image has a potential to awake sexual lust. The latter interpretation has some resemblance with the standard of obscenity used in the past in the UK and the US further discussed.

          Both the characteristics of obscenity and the potential to awake sexual lust have some weak points when applied to cyberspace. What is considered by a Thai judge as ugly, unseemly, inappropriate, indecent and shameful can be considered as the opposite by a US judge. Further, Thailand recently itself has experienced a dramatic change in sexual culture. What was shameful in the past is considered by many young people as a common and normal thing of today life. In other words, in the context of the Internet, which does not know national borders, the parochial standards of decency among Thai judiciary turn to be of little use.

Part 3             Footnote

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