Article 367(1) of the CL gives a rather vague definition of obscenity, stating that obscene articles are books, motion pictures, videos, audio-tapes, or pictures that appeal to the prurient interest, contain graphic depictions of sexual conduct, or explicitly publicise pornography. Articles 367(2) and (3), however, expressly provide that two types of works are not to be considered as obscene articles: scientific works on the functioning of human bodies and on medical knowledge; and works of art and literature containing pornographic content (baohanyou seqing neirong) but having artistic value (you yishu jiazhi). These CL provisions do not, however, explain or define the terms ‘pornography’ (seqing) and ‘pornographic content’ (seqing neirong).
Further details of what is considered to be obscene content can be found in a directive issued in 1988 by the then State Administration of Press and Publication, the government department overseeing the print media (SAPP 1988). It defines obscene content as: graphic depictions in an obscene manner of sexual conduct, sexual intercourse, and the related psychological feelings; publicly promoting pornographic and obscene perceptions; descriptions of sexual skills in an obscene manner; graphic depictions of incest, rape, or any other sexual offence that gives too much detail and may lead to imitation; graphic depictions of sexual conduct of minors; graphic depictions of homosexual (tongxinglian) or any other abnormal sexual behaviour (xing biantai xingwei) in an obscene manner, and graphic depictions of ‘abnormal’ sexual conduct involving violence or SM; and other obscene depictions of sexual conduct that the average person would not tolerate (SAPP 1988, Article 2).
This 1988 Directive, still in force, also defines ‘pornography’, stating that pornographic publications (seqing chubanwu), generally speaking, are not regarded as obscene but some pornographic content lacking any artistic or scientific value can fall within several of the above-mentioned categories of obscene content and can be considered harmful for average persons, minors in particular.
As such, definitions of ‘obscene’ and ‘pornography’ in mainland China are quite vague and somewhat circular, referring to each other at times. The definitions are dated and have not kept up with developments in mainland China in the past few decades. They include a wide spectrum of sexual conduct and behaviour, much of which, if conducted in private between consenting adults, would nowadays be considered as a private matter and would no longer attract criminal sanctions in many other countries or in Hong Kong.