Malta [Case 3 : contracts promoting telephone sex]

Abstract

Wicked can effectively set off Fun's claim, but may not be allowed to successfully institute a counterclaim for the remaining €30,000. Telephone sex per se is a private activity, which takes place between consenting adults and, like sex work, appears not to be a crime under Maltese law. However, the marketing of telephone sex cards would appear to require their distribution and/or circulation and/or broadcasting in a public place, defined by Art. 208(2) of the Criminal Code as "any place to which the public have or are permitted to have access, whether on payment or otherwise". Insofar as these cards may be presumed to display not only phone numbers but also pornographic images and to be made accessible to members of the public without the need for payment to view the cards themselves, this would appear to clearly contravene Art. 208 of the Criminal Code, which makes it a criminal offence to "display or permit to display any pornographic material in a public place". This marketing activity is penalised if conducted in a public place, which according to Art. 208 "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".