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Case
Stared
Case name
Insects in the Backyard
Name of persons / Name of Media
Film Insects in the Backyard
Case status
คำอธิบายสถานะคดี ภาษาอังกฤษ
On trial in Court of First Instance
Status of Accused
No information
Offense / order
Article 29 Film and Video Act
Summary
The film "Insects in the Backyard" was banned on December 2010 as its content was contradictory to the good moral of the people in many scenes such as sexual intercourse between man and women and man and man, prostitution, etc. The film director is filing a case to the Administrative Court to lift the ban.
The film director submitted a case to the Administrative Court to revoke the ban order. On 25 December 2015, The Court decided that the content of this film does not contradict to good moral. But there is a 3 second scence contain 'Porno Movie' which should be banned. However, if such scence was cut, this film can be screen as 20+.
This is the first case, since the Film and Video Act 2007 was enacted, that the Administrative Court exmanined the censorship order.
Basic information
Background of accused
Insects in the Backyard is a drama film which portrays a story about family relationship including father (Tannia,) mother, daughter (Jenny,) and son (Johnny.) In the story, mom died shortly after delivering her son, so Tannia has become a single dad. Tannia is physically male with female gender, openly a transsexual and has his own sexual imagination with men. Though he has been trying hard to perform his duty as a good father, both kids still cannot accept and tell other people that Tannia is their elder sister. Due to their father’s gender issue, both Jenny and Johnny leave home and live their own lives. Jenny goes into a relationship with a male prostitute and voluntarily decides to be in the same profession with her boyfriend to get income for living. Johnny, who is in his turning point of age, is confused about his own thoughts towards Tannia, decides to be a rent-boy for homosexuals. Finally, the climax of life made both kids learn that no matter what gender is; the most important thing is love and bonding between every single human.
Insects in the Backyard is an independent film, produced without any support from studios. The film was written and directed by Tanwarin Sukkhapisit (aka Golf); he also performed in a leading role produced the film with his own money and assistances from friends.
Before the film was banned in Thailand, Insects in the Backyard was shown at Thailand’s World Film Festival of Bangkok, Canada’s Vancouver International Film Festival, and Italy’s Torino GLBT Film Festival in 2010.
The National Film and Video Board (National Board), authorized under article 7 of the Film and Video Act B.E. 2551 (2008) (hereinafter Film Act) to consider the decision of the Second Committee for Film and Video Censorship (Censorship Committee) in the appellate process.
The Censorship Committee, appointed by the Ministry of Culture, authorized under article 16 of the Film Act to consider and categorize films for commercial release in the Kingdom.
Legal Claims
Offence against public order and good morals
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Form of restriction on freedom
Blocking / Ban
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Type of media
Film
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Province
Bangkok
Details of offence according to charge
The Censorship Committee ordered to not permit the show of Insects in the Backyard in the first time reasoning that the film was against public order and morality, In the second order, it stated that the film was against morality.
The National Board also ordered to not permit the show of Insects in the Backyard giving reasons that the film contained subjects related to male-male, female-female and male-female sexual intercourse, and contained scenes with cigarette smoking, several scenes with student-uniformed characters drinking alcohol, and characters prostituted themselves while wearing student uniforms. The film presented its main theme in an inappropriate way, such as letting boys and girls become a prostitute and not using different choices to solve problems. The film also contained scenes that boys and girls prostituted while wearing student uniform, teaching and persuading boys and girls to smoke, drinking alcohol, and doing foreplay action, including a scene that one character killed his own father in which considered heavily inappropriate, even though that scene revealed itself later on as a dream. The Board saw that the main theme of the film was a portraying ways of sexual relations in which against with Thai society, and might cause the society and audiences, even older than 20 years old, misunderstood and imitating sexual deviance and prostitution, including other inappropriate behaviors; this film was therefore against morality.
Progress of case
4 November 2010
Pop Pictures Company Limited, as a distributor, asked the Censorship Committee to permit the release of the film Insects in the Backyard in Thailand, with restriction of ‘Films not suitable for viewers under 18 years old’ category (18+). On the same day, the Censorship Committee, comprised with Wipas Srarak, Raksan Wiwatsin-udom, Wannasirt Morakul, Nakorn Weeraprawat, Santi Chookuanthong and Pakorn Tansakul, had a resolution to disallow the release because the film was against public order and morality.
23 November 2010
Tanwarin Sukkhapisit, on his own behalf, asked the Censorship Committee’s permission to release Insects in the Backyard in Thailand under ‘Films not suitable for viewers under 20 years old’ category (20-), with an addition of warning said ‘This film is made of filmmaker’s imagination. All characters and their behavior are fictitious. Please be discretionary while watching.’ On the same day, the Censorship Committee, reached a resolution to disallow the release reasoning the film was against public morality.
24 November 2010
Tanwarin Sukkhapisit appealed the order of disallowance to the National Board.
16 December 2010
The National Board, with Deputy Prime Minister Trairong Suwannakiri as a Chairman, convened a meeting to consider the appeal. At 7hrs00 (7 p.m.) some members of the Board went to see Insects in the Backyard at the auditorium of Kantana Group Public Company Limited.
22 December 2010
The National Board, with at-time Deputy Prime Minister Trairong Suwannakiri as a Chairman, met again to consider the appeal. The resolution was reached at 13 to disallow, 4 to allow, and 3 abstained.
28 December 2010
The National Board declared the written resolution to Tanwarin Sukkhapisit stating that the film had an overall subject on male-male, female-female and male-female sexual intercourse, and contained scenes with cigarette smoking. Several scenes with student-uniformed characters drinking alcohol, and characters prostituted themselves while wearing student uniforms. The film presented its main theme in an inappropriate way, such as letting boys and girls become a prostitute and not using different choices to solve problems. The film also contained scenes that boys and girls prostituted while wearing student uniform, teaching and persuading boys and girls to smoke, drinking alcohol, and doing foreplay action, including a scene with one character killed his own father, which was heavily inappropriate even that scene revealed itself later as a dream. The board saw that the main theme of this film was a portraying ways of sexual relations which against Thai society, and might cause the society and audiences, even they are older than 20 years old, misunderstanding and mimicking sexual deviance and prostitution, including other inappropriate behaviors, this film was therefore against public morality. As a matter of the fact, the Censorship Committee’s order to disallow the release on Insects in the Backyard was already justified; the appeal was dismissed.
28 March 2011
Tanwarin Sukkhapisit, as the Director, with the support from Movie Audience Network in Thailand, Tuchchai Wongkitrungruang, as an aggrieved party from the ban order of Insects in the Backyard, submitted a plaint as the first and second plaintiff against the National Board and the Censorship Committee as the first and second defendant. They asked for a revocation of the banning order of the film since it was an unlawful issuance of administrative order, with following reasons.
1. While making an administrative order, both defendants never informed the plaintiffs about the facts that used for consideration to issue the order and affected the rights of the plaintiffs. They also did not allow the defendants to rebut, nor present evidences or other related facts, in which against article 30 paragraph 1 of Administrative Procedure Act B.E.2539 (1996.) Soros Sukhum, one of the producers and plaintiff’s representative, was refused to receive explanation about the facts even he waited all-day-long in front of the meeting room before the order came out on the same day. Moreover, on 16 and 23 December 2010, which were the dates that the first defendant had a meeting, the plaintiffs and producers went to wait in front of the meeting room but had never been given any chance to explain.
2. Many members of both defendants did not know the essential factors of the film in consideration as they did not watch Insects in the Backyard before the meeting and making an order, even it was very important in consideration. Making an administrative order by neglecting the essence of the fact was unlawful. The word ‘morality’ has a broad meaning, which can vary the public’s opinion. Both defendants did not research enough before consideration, but considered it only according to their own prejudice.
3. The banning order of Insects in the Backyard of the second defendant was against due process of law. The defendant ordered without noticing the plaintiff to edit the film first, which was a breach of the procedure stated under article 8 of Announcement of the National Film and Video Board on Categorization Criteria of Film and Advertisement B.E. 2552 (2009).
4. The first defendant’s resolution of banning Insects in the Backyard was not rendered with their free will, but was dominated by somebody. The supporting reason for this argument was that, the Ministry of Culture in Thailand handed out a document to the press before the first defendant had a chance to see the film in 16 December 2010, and the reason stated in the document was as same as the first defendant’s decision. Since, there was information and a ground to believe that the first defendant committed himself with pre-judged opinions and reasons during consideration.
5. The second defendant’s order did not identify any reason, and considered as an unlawful administration order according to article 37 of Administrative Procedure Act B.E. 2539 (1996). The order only identified that the film was against public morality. The defendant never let the plaintiff know exactly which scenes or parts of the film were against public morality, and how they were against.
6. The first defendant’s order did not cite to the law applied in an issuance of the order, and therefore it became an unlawful administration order according to article 37 of Administrative Procedure Act B.E. 2539 (1996).
7. Both orders from defendants were not legitimate because Insects in the Backyard had no part affecting the monarchy, insulting or disgracing any religion, causing public disunity, affecting the international relations, containing sexual-intercourse main theme, or presenting genital-visible sex, which would amount to the criteria of films that categorized as ‘Banned’ according to the Ministerial Regulation on Determination of Film Rating, B.E. 2552 (2009)
8. The banning order deviated reasons from reality as Insects in the Backyard did not contain any main theme that against public morality. Members of both defendants did not understand the nature of cinema, and considered it in fragments instead of the film as a whole. The overall story of this film was written to tell about Thai society’s sexuality and queer identities, which were unaccepted and caused broken families. Moreover, there were only 4-5 scenes containing images of sexual intercourse for just a few seconds, and those scenes were not against public morality.
9. The banning order was against principal of equality. There are other films that have the same kind or similar theme where they contain same kind of scenes in the similar length or longer than Insects in the Backyard; they have similar story or even harder, but were allowed to release. The plaintiff attached 15 examples of films to the court, such as A Frozen Flower, Brown Sugar, The Sin Sisters 2, Secret Sunday, Bruno, and The Reader.
10. The plaintiffs also refered to five articles by academics, such as Nithi Eawsriwong, Wanrak Suwanwathana, and Wanchai Tantivithayapitak, which commented on the banning order of this film as a memorandum.
11. Since the banning order of both defendants gravely violated the plaintiffs’ freedom of expression, and caused the plaintiffs an incalculable damage, the plaintiffs asked for 400,000 baht as damages from both defendants.
May the administrative court withdraw the banning order of the film Insects in the Backyard, and order both defendants to pay the damages for 400,000 baht.
On the same day, Tanwarin and Tuchchai filed a motion to Administrative Court to deliver a petition to the Constitutional Court to decide if article 26(7) and 29 of the Film and Video Act B.E. 2551 (2008), on the power of authority to categorize films in ‘banned’ category and disallow any releasing of films, are against the rights of freedom of expression according to article 45 of the Constitution. Though there are some exceptions to limit the rights by law, but it gives the State an excessive power to unnecessarily limit the people’s rights which is against the principle of proportionality, and the terms written are vague and broad which is against the rule of law according to article 29 of the Constitution.
Moreover, the plaintiffs also filed a motion to Administrative Court requesting for an interim relief. They cited that the society is now interested in the first banning order ever since the Film and Video Act B.E.2551 (2008) was activated. Criticizing on the topic is going to be useful for journalism and law academics, but watching the whole film is necessary for a complete critic or comment. Therefore, they asked the court for an interim relief to allow the screening of Insects in the Backyard only in seminars and for academic purpose while waiting for the court’s decision, and let people exercise their rights by commenting and criticizing the use of administrative power.
31 March 2011
Administrative Court issued summons to the plaintiffs and the defendants to the court on 4 April 2011 at 13.00 hrs (1pm), to provide evidences for consideration of an interim relief.
4 April 2011
Administrative Court examined an interim relief motion with parties including the plaintiffs and the defendants’ representatives reporting themselves to the Court. Tanwarin, the first plaintiff, answered that he felt his own rights was violated from the disallowance order, and he had no chance to explain and has never been given good reasons of the ban. In addition, he told the Court asking for screening in academic activities such as in universities or schools with seminars, and there will be a restriction only for over-20-year-old audiences by checking ID cards before the show. Both defendants answered by insisting that the order of banning was made correctly to the due process of law, and after considering the film delicately, they believed that this film was against public morality and inappropriate to screen in the Kingdom. They also answered against an interim relief to the court.
8 April 2011
Administrative Court barred the second plaintiff, Tuchchai Wongkitrungruang of the Movie Audience Network in Thailand, from bringing an action. The court established that the banning order of Insects in the Backyard did not affect the second plaintiff’s rights directly as an aggrieved party because he was just an agency of the group of people interested in watching films. As matter of the fact, the second plaintiff has no rights to sue in this case.
20 April 2011
Administrative Court dismissed an interim relief motion. The Court reasoned that the administrative order caused a real damage to the plaintiff, but did not prohibit the film from any competition or screening outside the Kingdom. If the Court’s verdict afterwards came out that the administrative order was unlawful, it would have cleaned up the damage of the plaintiff. The authorization of the administrative order would not cause the plaintiff any irredeemable injury. In addition, screening the film in academic activities or seminars is not private, and presumably a large amount of audiences who interested in the topic will come, and that would be the same outcome as allowing the release of the film in the Kingdom. As a result, this case is not in the criteria to consider for an interim relief.
17 June 2011
Both defendants submit testimony together with evidences and transcription according to the request by the Administrative Court, signed by Songchai Prasatvanich, the public prosecutor. Plaints of both defendants as followed in conclusion.
The testimony of the first defendant, the National Board:
1. The first defendant appointed the subcommittee to provide legal advice and consider the appellate. The subcommittee had a meeting on this issue and invited Tanwarin, the first plaintiff, to explain on 9 December 2010 and also asked if he agreed to cut some parts of the film out, in which he denied. Thus, the first plaintiff’s claim that he had not been given any chance to explain or additional facts, and that the first defendant did not follow due process of law was unreasonable.
2. The defendant’s work of categorizing films was to consider the substance of film, which the plaintiff had already attached for consideration. So, the fact from the party was already included, which fell into the criteria of exception under article 30 (3) of Administrative Procedure Act B.E.2539 (1996), that the defendant did not have to receive further explanation from the party.
3. In consideration of the appeal, even some members of the first defendant did not attend the meeting due to personal business, but the resolution proceeded following the constituted quorum which was not less than half of the members. However, the meaning of ‘public morality’ is completely understandable among the people of ordinary prudence.
4. The defendant made an order of banning the film because it was against public morality, authorized by article 29 of the Film and Video Act B.E.2551 (2008), which was the law that authorizes state organizations to consider the facts case-by-case without any inflexible principals. The defendant’s authorization in this case was not according to article 26 (7) which gives power to categorize films into ‘banned’ category, so the defendant did not have to consider the criteria of the Ministerial Regulation on Determination of Film Rating, B.E. 2552 (2009) as the plaintiff claimed.
5. The first defendant insisted that every film in process of considering appeals were watched before meetings, decision was made with free will and based on public purpose, protecting children, juveniles and society, and unnecessary to made an order under any domination. There were orders of banning before. Cinema is a kind of media that affects children, juveniles and society, and possibly causes mimicking inappropriate behaviors. The first defendant’s discretion was used without any prejudice or intention to defame the plaintiff, but for public purpose. According to the citation, the plaintiff was just doing only for his sake, without concerning any damage, which could affect children, juveniles and society.
6. The 400,000 baht damages fee is unreasonable because the plaintiff just imagined this by himself without any admissible evidence or principle. May the administrative court dismiss the plaintiff’s plaint.
Testimony of the Censorship Board:
1. Pop Pictures Company Limited asked for a permission to release the film. When the permission was rejected, Pop Pictures did not have any doubts nor required any involvement to the appeal. There was only Tanwarin who still has doubts, but he has no rights to appeal since he did not ask for permission at the first time, so he asked for permission again without editing the film. This action was just for the rights to appeal and file a case, to overhype the film Insects in the Backyard, which could be seen that he acknowledged the order together with the press, publishing news, and it was on the same day with that he filed the appeal.
2. Since there were many films registered asking for permission every day, if the defendant asked for editing process, it had to watch the film entirely, and might not have finished within 15-day period as specified by law, and would cause allowance of the film immediately. This was an urgent case, which could not be prolonged to cause effect to public purpose, so it was not necessary to address nor received any more explanation from the plaintiff. In addition, there was no representative from the plaintiff waiting to explain on that day.
3. In consideration, it had to firstly categorize the films into rating system according to article 26(1) to (7) of the Film and Video Act B.E.2551 (2008). Insects in the Backyard was categorized as (6) category, a film not suitable for viewers under 20 years old, then the board used its power under article 29 considering if the film had any type against public order or public morality. When found that the film had an aforementioned type, the board ordered to disallow the release according to article 29, not article 26 (7.) All of this was proceeded in accordance with the due process of law, and did not have to address the plaintiff for editing nor was bound to the Ministerial Regulation on Determination of Film Rating, B.E. 2552 (2009).
4. Because Insects in the Backyard asked for permission in the name of Pop Pictures Company Limited and then was rejected, and the plaintiff renewed the process without edition of the film – according to this, the plaintiff had already known the reason of the order without further notice, and the plaintiff appealed immediately without questioning to the Board.
5. Members of the Censorship Board are experts appointed by the intention of the law to represent ordinary prudence, and used their discretion in consideration discreetly.
6. The plaintiff’s excuses that banning orders would never succeed because pornography with blatant sexual intercourse is very easy to access. This shows that the plaintiff is not responsible to the society, since he only exposes problems without any solution, and disrespects the law enacted to protect public order and public morality.
7. Article 45 of the Constitution guarantees freedom of expression, and exception can be used by the law, and that it is the Film and Video Act B.E.2551 (2008) that limits such rights. Disallowance of the film Insects in the Backyard was authorized by the law, and the plaintiff still can exercise his own freedom by renew asking permission, but he chose to submit a plaint to Administrative Court, which limits his freedom more, instead.
8. As for the 400,000 baht damages, it is an unreasonable amount that comes out vaguely by the plaintiff, without plaintiff was caused any damage. On the contrary, he gained profits from the disallowance since the order made the plaintiff and this film became famous, being published in newspapers and magazines.
May the Administrative Court dismiss the plaintiff’s plaint.
2 September 2011
The plaintiff submitted an objection against both defendants’ testimonies.
7 December 2011
Both defendants submitted additional testimonies to the Court, signed by Songchai Prasatvanich, the public prosecutor.
26 October 2012
The Constitutional Court of the Kingdom of Thailand’s website published Office of the Constitutional Court news. It said the Constitutional Court considered that article 26 (7) and 29 of the Film and Video Act B.E. 2551 (2008) concerning banning films from release, are not against the Constitution in freedom of expression issue.
The Constitutional Court considered and established that the legislation of the law is a measure that authorizes state organizations to consider appropriateness of the films before releasing to the public, by giving power to categorize films into rating system, including ‘banned’ category, and demanding applicants to edit or correct films before the allowance or disallowance. If they see that the films are undermining or against public order or public morality, or affect the security of the State and the reputation of Thailand, filmmakers cannot exercise their right to freedom of expression in a way that may affects rights and freedom of the others, security of the State, and to protect public order or public morality. Even the legislation has limited some freedom of expression, but it followed the condition of article 45 paragraph two together with article 29 of the Constitution only as it is necessary, and does not affect the essence of freedom of expression. The legislation is ordinarily applied, and does not enforce to particular case or person.
22 November 2012
Tanwarin Sukkhapisit, the director of Insects in the Backyard, in collaboration with Manit Sriwanichpoom and Samanrat Kanjanawanich, the producer and director of Shakespeare Must Die, reported to Technology Crime Suppression Division (TCSD) that their films were stolen by piracy websites for sale and downloading without permission.
Afterwards, the producers, directors and their team of lawyers for both films went to the Administration Court and filed a motion to accelerate both cases in order to preventing any damages and affectation, which may happen during the proceedings, from broadcasting the films illegally by someone and caused the producers damages, by their loss of income which may have gained from releasing after the judgment.
3 December 2015
The Administrative Court schedule for the first trial. The judges appeared on the bench around 10.30am and declared the summary of facts concerning in this case. Tanwarin Sukkaphisit, the plaintff, gave an oral testimony on the inspiration of this film and Yingcheep Atchanont, the attorney, testified on the legal issues. The officers of the three defendants prsented themselves at the courtroom but did not gave furthur oral testimony.
The Judge-commissioner of justice (Judge who makes the conclusion) declared her opinion that Insects in the Bacnkyard is a film trying to present family issues. The intention of the film is to reflect the socila problem. Even thought there are sex scenes with sexual organs but these pictures are part of the story and not the core content of the film. This film does not aim to arouse sexual emotion and the film with sex scene with genitals exhibited can be considered as the film for persons aged 20 or more.
If considering the criteria in the Ministry's regulation, it can be seen that the prohibitted films have to be the films that severely effect the security of the nation, religion and Monarchy Institution or the sexual prupose. The films for persons aged 20 or more is are the films with some part effect to the society. The film Insects in the Backyard should be catagorised as the film for persons aged 20 ot more. The order to ban this film of the defendants are unlawful. The judges of this case should revoke the ban order. The plaintiff requested the compensation for 400,000 baht but the judge makes the conclusion sees it is too high and reduced to 10,000 baht.
The judges of this case schedule to read the verdict on 25 December 2016, 9.30 am.
25 December 2015
The Administrative Court read its verdict dismiss the case. (See the detail in Verdict menu)
The Verdict
Summary of the Administrative Court’s verdict on the ‘Insects in the Backyard’ film censorship
Verdict delivered on 25 December 2016 at 9.30am, Courtroom 10, Central Administrative Court
Legal issues concerning the issurance of the court order
The plaintiff claimed the defendant had failed to explain the facts of the matter and had never given concerned parties an opportunity to explain or rebut and submit their evidence Since the issuance of the order was related to the review of the content of the film, the plaintiff had submitted evidence and document including the film which they were asking for permission to screen, the script or subtitle, and a synopsis of the film. The defendant no.2 then proceeded to review and analyze the information and issue an order. Thus, it was assumed that the plaintiff no.1 had made the submission as per the requirement, and it was an exemption per Section 30 paragraph 2 (3) of the Administrative Court Procedure, B.E. 2539. Therefore, the defendant no.2 needed not request the applicant to meet and explain or submit more evidence.
The plaintiff claimed the film had been banned from screening simply because “its content stands contrary to public order or good morals, but no attempt has been made to identify which part of the film or which scene features such content that breaches the public order or good morals. Reviewing the documents attached to the film review, it indicates that the film was banned because its contents stood contrary to public order or good morals invoking Section 29 of the 2008 Film and Video Act. It was clear from the order as to the facts, the provision invoked and the reason per the law based on which the review was made in order to issue the order save for some detail could have been clarified. It was a minor flaw in the issuance of the order.
But in the written appeal and clarification of the plaintiff no.1 filed with the National Film and Video Committee, an indication was made that the content of the film was not a breach to public order or good morals, but the film was appropriate for viewers aged 20 years and upward. The Court heard that even though the censorship memo of the defendant no.2 might contain some flaw regarding the detail information, but it did not confuse the plaintiff no.1 as to which argument they should have made. It was clear that the plaintiff no.1 had understood the reasons and had made an attempt to rectify it by inserting a warning to the film. Therefore, the order of the defendant no. 2 was not a violation of the law.
The plaintiff also claimed that the defendant should have proposed the editing of the film, prior to issuing its ban, since the defendant no.1 had promulgated a Notification mandating that the Committee must have proposed the editing of the film prior to banning its screening throughout the Kingdom and it ensures that appropriate procedure is taken to preserve the interest of the person seeking the permission and therefore the defendant no.2 should act in compliance with the procedure. It should have asked the applicant to edit the film on parts which are deemed a breach to the public order and good morals prior to banning it from screening in the Kingdom. It is unreasonable for the Committee to refuse to act as such claiming that it had to complete the review within 15 days. According to the meeting minutes of the Subcommittee, the plaintiff was allowed to explain their reasons and was asked if they would censor part of the film to which the plaintiff explained that they would not want to have anything censored and that the warning had been inserted as explained earlier. It was clear from the gesture of the plaintiff that they wanted to have the film “Insects in the Backyard” screened with all of the original content and there was no need for the Subcommittee to explain as to which parts should be censored. It should be assumed that the Subcommittee had already informed them about the editing option.
Issues concerning the content of the film “Insects in the Backyard”
The Court views that the 2008 Film and Video Act provides that being contrary to public order or good morals is one of the reasons to ban the production of a film, even though it falls short from giving a definition as to what being "contrary to public order or good morals" constitutes. Since the provisions of the 2008 Film and Video Act severely restrict to the freedom of expression and opinions, and deprive the right to acquire and access to information of the people, the Court is obliged to review the content of the film deemed to be "contrary to public order or good morals" with great imprudence and strictness to the letter of the law.
The 2009 Ministerial Regulation Classifying the Content of the Film’s Article 7 provides that a film which is banned from screening in the Kingdom has to bear one of the following features including (5) the essence of the film concerns sexual relationship, (6) its content concerns sexual intercourse exhibiting genitals. It is clear that only these two subsections deal with being "contrary to public order or good morals". Therefore, the determination of the content of the film in terms of its being "contrary to public order or good morals" has to be done according to what is provided for clearly in Sections 7(5) and 7(6).
The essence of the film “Insects in the Backyard” is concerned with family relationships as the father was a transgender (a transvestite who liked to dress as a woman and fell for men). He lived with a son and a daughter, teenage students. Even though the film features various scenes depicting sexual intercourse between men and men and women and women, but all these scenes simply support the theme the movie and feature the twists at which the characters questioned themselves. It has then led to some conclusion. Even though the shape of body of the characters appear in certain scenes, but is not that explicit and is not indicative of the brazen sexual intercourse intended to arouse sexual passion or cravings. The film’s main thesis revolves around a family conflict and is not at all intended to exhibit any sexual intercourse, which is a prohibited matter for distribution per Article 7(5) of the Ministerial Regulation.
A viewer aged 20 years and upward should be capable of using their discretion given their maturity when viewing the film. If it is allowed to be screened for persons not younger than 20 years of age, there should be no concern of its encouraging children and youth to imitate the behaviors in the film.
This film “Insects in the Backyard” features some inappropriate scenes including sexual intercourse with genitals exhibited, scene of the TV screen showing sexual act while the viewer was masturbating, etc. The content of these scenes is the father who was watching a porn movie with explicit sexual intercourse, aka “X movie” being shown on TV screen, and it was an MSM movie depicting three naked men while having sex, showing the penetration of male genital into the anus of another man. Even though the scene and content appears only three seconds on the TV screen and is made to appear as a flashing dream, but since this X movie has been made with intent to arouse sexual desire of the viewer, it should be classified as an obscene object per the Penal Code’s Section 287. The obscene object is criminalized by the Penal Code because it may affect the public order or good morals and the state is obliged to intervene to protect society from such impact.
Since the film “Insects in the Backyard” introduces a scene from an X movie featuring sex scene with genitals and their penetration exhibited as part of the film, it should be assumed that the film features a content deemed a prohibition for distribution in the Kingdom per the Ministerial Regulation regardless of the intent to feature such scene. The twists of emotion could have been inducted by using a more artistic and creative means in filming rather than featuring the sex scene with explicit penetration.
In sum, the film “Insects in the Backyard” features a scene showing sexual intercourse with genitals and penetration exhibited and the content is strong and could be deemed as being contrary to public order or good morals making the film not allowed to distribute in the Kingdom per Article 7(6) of the Ministerial Regulation. The defendant no.2 was therefore duty-bound to filter out such content in the film. The order issued by the defendant to disallow such scene in the film “Insects in the Backyard” was therefore lawful. It did not constitute an infringement on the plaintiff and the three defendants cannot be held accountable and the case is dismissed.
The Court also set out an observatory note regarding how the verdict can be executed. Since the Court has determined that the essence of the film “Insects in the Backyard” does not concern sexual relationships, which could have been prohibited from distribution in the Kingdom per Article 7(5) of the Ministerial Regulation. Only part of its content constitutes a prohibition per Article 7(6) including the sex scene with genitals exhibited. If the application is made while maintaining the theme of the film and having part of the scenes edited or deducted to have the prohibited scene removed, it should be possible for the defendant to permit the distribution of the film in the Kingdom per the procedural law and the verdict of the Court. Its view should be however confined to a person of 20 years or older and other conditions could be imposed only necessary for the plaintiff no.1 to act in compliance with the purpose of the law.
