The Hong Kong Journalists Association (HKJA) notes the government assertion that Hong Kong is a free and open society. As such, controls on publications should be as light as possible, and should be imposed only in accordance with Article 19 of the International Covenant on Civil and Political Rights, which protects freedom of expression and provides that restrictions to protect public morals shall be imposed only by law and where necessary.

Legislating on matters of a moral nature is a difficult area - and no more so than in a territory such as Hong Kong, where traditional moral values are interspersed with a growing acceptance of more liberal attitudes, in particular towards matters of a sexual nature.

The HKJA calls for a liberal approach towards this complex subject, rather than imposing further restrictions on obscene and indecent articles. The existing legislation is already stricter than that in many developed countries. For example, few such countries have provision for tribunals with the power to rule on articles submitted to it - a move which can lead to self-censorship among publishers.

Such a trend was evident in a case involving the October 2008 issue of the National Geographic magazine. Its publisher in Taiwan apparently took the decision to wrap the magazine in a plastic packet with a warning about the contents, which featured several computer-generated images of naked Neanderthal people in far from provocative poses.

We further note that a number of developed countries do not have classification systems at all. They include England, the United States, Canada, Germany and Taiwan. They have specific legislation to handle obscene articles, and either have no legislation governing indecent articles or handle such issues through the common law. As such, they do not have any definition of indecency.

The HKJA would therefore call on the government to scrap the law relating to indecent material, and to study alternative ways to protect minors from exposure to such articles. The government could then focus on the control of obscene materials.

PROBLEMS INVOLVING THE CURRENT SYSTEM

Many commentators have said that the current system does not work well. We agree. For example, the ordinance fails to give a clear definition of indecency or sufficient protection to publishers.

The government has overwhelming power over the classification system because the Television and Entertainment Licensing Authority (TELA) is the executive arm of the adjudication system. This means that TELA, in presenting documents and information to adjudicators, can play a major role in steering those involved towards a particular decision. This may lead – without questioning by the adjudicators - to erroneous classifications, made worse at the interim stage because the panel does not give reasons for its decisions.

An applicant may appeal to the full tribunal. If he or she is still disssatisfied, an appeal can be made under section 30 of the ordinance to the Court of First Instance. But such appeals can be made only on points of law, not points of fact. This limits the ability of applicants to make a proper appeal.

Further, there is a problem of consistency in the way that the existing Obscene Articles Tribunal classifies articles. Arbitrariness seeps into the system, made worse by the stipulation that reasons are not given for interim classifications. That has become evident in rulings involving Michelangelo's David in 1995 and the indecency ruling handed down on several articles about sexual matters published in a Chinese University student journal.

Indeed, the comments of the judge in the latter case are revealing. In an appeal against the indecency ruling, Mr Justice Johnson Lam noted: "The (Obscene Articles) tribunal is asked to make decisions which have a bearing on the freedom of expression, a fundamental right cherished by our society... There is no room for arbitrariness or slackness." The judge also said that the tribunal should have given reasons for its indecency ruling.

The HKJA agrees with the judge's comments, and would urge the administration, if the existing system remains in place, to consider ways to ensure that the tribunal reaches conclusions in a way that is consistent with Hong Kong's obligations under the International Covenant on Civil and Political Rights.

DEFINITIONS OF OBSCENITY AND INDECENCY

The HKJA notes that subjective considerations colour any deliberation on indecency. Two prominent British Queen's Counsel, Geoffrey Robertson and Andrew Nicol, write in their book Media Law (2002 edition): "Indecency is not an objective quality, discoverable by examination as if it were a metal or a drug".

This is true, and prompts us to hold the view that the concept of indecency should be removed from the law. However, if the government decides that indecency should be retained, then it should be defined in a flexible mannner. Any attempt to move away from flexibility would lead to the danger that a moralistic - and possibly minority - view of these concepts would predominate. This in turn could breach the intention of the law that the tribunal should reflect "standards of morality generally accepted by reasonable members of the community" and lead to a serious divergence from prevailing standards.

We would, however, not be opposed to incorporating additional factors in section 10 of the ordinance, with the proviso that flexibility must prevail. We believe in particular that the upholding of freedom of expression must be the number one criterion.

It would also be helpful to include the factors listed in section 28 of the Ordinance. These provide defences for publications intended for the public good. This would remind the tribunal that there are legitimate artistic reasons for publishing a picture, for example, of Michelangelo's David.

We would not, however, support the creation of supplementary administrative guidelines, which would be outside the scope of the legislative process.

ADJUDICATION SYSTEM

If the government insists on maintaining the existing two-tier adjudication system, it should be made more representative. We do not oppose having a magistrate preside over hearings, as this gives the process a strong judicial influence. We are opposed to other options, including creating a so-called independent, but probably elite or activist classification board, or forcing a single magistrate to become the sole arbiter of taste.

We note the comment by the two Queen's Counsel quoted above that "The indecent article must infringe current community standards. A 'community standard' is something that emerges from the consensus reached in a jury deliberation..." This is not now the case.

The current system relies on a pool of about 300 adjudicators, who are appointed by the Chief Justice. There is no random selection of adjudicators. Rather, members of the public may apply to join the tribunal.
 
This is a system fraught with problems. It may lead to a panel that is dominated by those who feel strongly about obscenity and indecency; not those who represent the "standards of morality generally accepted by reasonable members of the community." In other words, the man on the Shau Kei Wan tram is not represented.

More likely is the appointment of people who to a greater or lesser extent wish to impose their views of obscenity and indecency. One example is a group such as the Society for Truth and Light, which holds strong moral views. Another is a group fighting for equal rights for sexual minorities. They may take public stances on contentious articles. If a member of such groups successfully applies to join the tribunal, he or she may then become both an advocate and a judge, which blurs the line in the adjudication process.

The HKJA strongly supports drawing adjudicators from the list of jurors. This would expand the pool of jurors and limit the danger of the tribunal's work being taken over by social activists. We would also support the proposal that the number of adjudicators attending a hearing should be increased. However, we would oppose any move to include adjudicators from specific sectors. This smacks of "functional constituency" adjudication, which is inherently unrepresentative.

We also believe strongly that the tribunal should give reasons for interim classifications. In doing so, the tribunal should make reference to the criteria set out in section 10 of the ordinance for justifying classifications. Foremost among them should be protection of freedom of expression. Further, where the tribunal is uncertain about whether an article is obscene or indecent, it should be encouraged to seek expert advice.

Setting out reasons at the interim stage would help build up a form of "case law", which would help in future cases, in particular if fresh adjudicators are involved. It would also lead to greater consistency in adjudication and classification.

However, public morals change over time. The government should therefore commission an independent body to carry out regular surveys to gauge the latest moral standards, as a reference for adjudicators.

SUBMISSION OF ARTICLES FOR CLASSIFICATION

The HKJA opposes any move to allow anyone or any particular sector to submit articles for classification. This would open the door to activist submissions and could drown the tribunal in work. Individuals and organisations can now make their views known by writing to the Television and Entertainment Licensing Authority or the media. Such informal mechanisms would prompt the authorities to consider whether to take action.

CLASSIFICATION SYSTEM

The HKJA opposes dividing class II into classes IIA and IIB. This would further complicate the existing system and would certainly lead to more grey areas. Setting a new standard at the age of 15 would raise questions about whether there would have to be alterations once standards of morality change. Setting a limit at the age of 18 is fairly straightforward; this is the age at which a youngster becomes an adult. Indeed, we believe that parents and teachers should play their proper roles in overseeing the reading habits of children under the age of 18.

For the record, the HKJA also opposes classification by a single magistrate for the reasons outlined above.

NEW FORMS OF MEDIA

Regulation of the internet is a troubling area for those advocating freedom of expression. At the moment, internet service providers exercise self-regulation. This, in our view, is the best way to regulate an area which has no national boundaries. Any move to impose legislative controls on the internet in the area of obscenity could open the door to other forms of internet censorship. Today's move to control obscenity could become tomorrow's move to censor articles about dissent in China, Tibet or Xinjiang. We strongly oppose any such move.

We urge the government to adopt voluntary measures, including continued self-regulation and the promotion of education among parents. Anything more, including the imposition of filtering systems, could threaten Hong Kong's viability as a centre that encourages the development of the internet industry and could make a laughing stock out of Hong Kong's aim to become a world city.

The HKJA would therefore support the proposal that the existing system be retained, which we note allows the law enforcement authorities to take action over obscene material.

We would also support some - but not all - of the additional administrative measures proposed in section 2.1 of chapter 4. We would certainly support strengthening public education and developing good industry practice for the protection of youngsters and children. We would also not oppose the creation of a voluntary labelling system and providing filtering services for subscribers, on a voluntary basis.

However, the HKJA has reservations over two proposals - the tightening up of service contracts through a specific ban on the publication of obscene or indecent articles, and moves to limit bandwidth and temporarily suspend or terminate services if contractual terms are breached. These proposals appear to be backdoor ways of imposing control over internet service providers – in the absence of specific legislation aimed at achieving similar aims.

For the record, the HKJA opposes any move to enact internet legislation aimed specifically at controlling obscene articles, or making a legislative requirement for ISPs to provide filtering software. We would also oppose the regulation of public communication on the internet, which would run contrary to the principle of self-regulation.

PENALTIES

The existing penalties set out in the Control of Obscene and Indecent Articles Ordinance are already relatively harsh. An individual can be jailed for up to three years and fined up to HK$1 million for publishing an obscene article. If he or she publishes an indecent article, he or she could be jailed for one year and fined HK$400,000 for a first offence and HK$800,000 for a subsequent offence.

We note that the consultation paper provides only maximum penalties handed down by courts. This is misleading as it does not cover the full range of cases. The HKJA asked for the average penalty imposed for offences over the past three years. However, the Television and Entertainment Licensing Authority, which handles newspaper registrations and keeps data on issues relating to newspapers, said it did not keep statistics on average penalties or even numbers of cases. It could only give details about minimum and maximum fines. Without more substantial information, it is difficult to determine whether there is a sound case for raising fines, as proposed in the consultation document.

The HKJA believes the existing maximum penalties are sufficient to act as a deterrent. As for the way that a judge determines a sentence, this should be left up to his or her judgement. A prosecuting lawyer may raise questions about whether a heavier or a more lenient sentence should be imposed, but the judge should not have his or her actions limited by setting out a list of factors to be taken into consideration in determining a sentence.

We would also question some of the factors listed in section 2.3 of chapter 6. The object of a prosecution should be whether an article is obscene or indecent, and not the business circumstances of a particular publication. In any case, certain factors may be difficult to ascertain, for example the circulation of a newspaper that claims a particular figure but does not subscribe to an agency that calculates such figures in an impartial manner. We would also not want to encourage any procedure whereby the government could force a publication to hand over sensitive business information for reasons that are not strictly necessary.

Hong Kong Journalists Association
January 14th, 2009