Calls in Hong Kong for tighter control of user generated content

28 April 2008

Vivian Ng

A recent incident involving Hong Kong starlet, Edison Chen, has raised questions about how Hong Kong legislation controls user generated content. The case has prompted the Hong Kong public to question the effectiveness of Hong Kong’s Obscene and Indecent Articles Ordinance, and in particular, the rules regarding regulation of materials transmitted over the internet.

A number of intimate photographs of Chen with his female partners (including female celebrities) were posted and circulated at several online discussion forums. It is believed that an employee of a computer repair shop stole the photographs when Chen took his notebook for repair and uploaded the photographs on the internet. Chen later claimed to be the copyright owner of the photographs and urged the public to refrain from distributing the photographs.

Shortly after the photographs were initially published on the internet, the Police made several arrests; the first of which was Chung Yik-tin who was charged with distributing obscene photographs on the internet via online discussion forums. The Police tracked him down through an internet service provider who handed the Police his internet protocol address. Chung was the only person arrested who was refused bail and was on remand for eight weeks. The charges were eventually dropped as the Obscene Articles Tribunal classified the photograph he uploaded as ‘indecent’ but not ‘obscene’. The Police have been criticised for not submitting the photographs to the Obscene Articles Tribunal for classification before instituting the prosecution against Chung.

At present, the Obscene and Indecent Articles Ordinance is enforced by a number of bodies: the Television, Entertainment and Licensing Authority; the Hong Kong Police Force and the Customs and Excise Department. The Obscene Articles Tribunal is also involved, as it is responsible for classifying articles as either obscene or indecent.

Enforcement agencies generally adopt a complaint-driven approach to regulating materials transmitted over the internet, rather than active monitoring which is considered to be impractical. The Hong Kong Internet Service Providers Association will work with the enforcement agencies, for example, upon receiving a request from the Police, by blocking access to or removing obscene articles from the internet; and implementing measures under the direction of Television, Entertainment and Licensing Authority.

The Hong Kong Government will be conducting a comprehensive review of the Obscene and Indecent Articles Ordinance and public consultation will be sought during the second half of 2008. It will be interesting to see how the Hong Kong Government proposes to treat issues such as the application of the Ordinance to materials distributed over the internet. It will also be interesting to see how it will prosecute these cases, and how it will strike a balance between freedom of expression and protection of the public interest.