Roland Soong is hot on the trail with some new information relevant to Oiwan Lam's case. She is fighting an indecency ruling by the Obscene Articles Tribunal for posting an artistic photo of a topless woman that she found on Flickr. If the ruling is upheld she could face a fine of up to HK$400,000 and up to one year in jail.
If you live in Hong Kong you will be aware of the latest uproar over how the Television and Licensing Authority (TELA) and Obscene Articles Tribunal (OAT) operate. At the Hong Kong book fair this week, a book depicting a classic French painting of Cupid kissing Psyche on its cover was nearly withdrawn from the Hong Kong book fair because TELA inspectors deemed it indecent. TELA and OAT have been regular subjects in the Hong Kong media (mainly negatively) since the Chinese University student newspaper got nailed by TELA/OAT with an obscenity ruling after publishing a sex questionnaire. The newspaper Ming Pao got nailed as well after it duplicated the questions and humorously made up "model answers" that different types of students might give.
It appears that the Hong Kong public is unimpressed with the recent accomplishments of TELA and OAT. Roland points to a telephone survey conducted by the Oriental Daily in which respondents were asked their opinions of OAT. The answers:
Q1. Do you think that there is a problem with the Television and Entertainment Licensing Authority classifying books with nude art as indecent?
55% (n=199): their standards are very problematic
22% (n=82): their standards are alright
23% (n=84): no opinion
Q2. The Television and Entertainment Licensing Authority does not prosecute libraries for having books with photographs of nude sculpture and paintings. By contrast, the book seller was advised at one point to withdraw their books. Do you think that the way in which the Television and Entertainment Licensing Authority assess indecent materials is problematic?
50% (n=182): Highly problematic (because this is practically double standards)
30% (n=108): Somewhat problematic because people find the standards to be ambiguous
15% (n=56): No problem, because these are two different things
5% (n=19): no opinion
Q3. Do you think the execution of the "Control of Obscene and Indecent Articles Ordinance" by the Television and Entertainment Licensing Authority is suitable for these times?
60% (n=218): It is behind the times
15% (n=56): There is no problem with the standards of the Television and Entertainment Licensing Authority
25% (n-91): no opinion
In fighting the indecent ruling from the unpopular OAT, Roland asks: "How much money does Oiwan Lam need?" The answer: a lot. Roland dug up an article saying that back in 1995, the now-defunct Eastern Express paid HK$80,056 in legal fees to challenge an OAT indecency ruling (against an advertisement containing a frontal picture of the Statue of David). The ruling was eventually overturned by the High Court.
Roland usefully quotes two paragraphs from Yan Mei Ning's chapter on "Print and Online Regulation and Self-Regulation," in Hong Kong Media Law: A Guide for Journalists and Media Professionals just published by my colleague Doreen Weisenhaus (FYI she will be speaking about Hong Kong media law on Monday noon at the FCC, details here). Yan Mei Ning writes:
Several media-related decisions by the Obscene Articles Tribunal in the 1990s have resulted in much confusion and criticism. The following three appeals lodged by the now defunct Eastern Express newspaper vividly illustrate the kind of unreasonable and unacceptable interference that the OAT could have on the daily operations of the media (Eastern Express Publisher Ltd v Obscene Articles Tribunal  5 HKPLR 247). In ruling on the appeals, a High Court judge sharply criticized the OAT saying, "These cases have, in my view, invovled a great deal of waste of time, money and valuable resources."
The first appeal concerned an OAT determination in 1995 that an advertisement in Eastern Express depicting Michelangelo's statue of David was indecent. The OAT maintained that it was not appropriate for the newspaper to publish a photograph of a statue of wholly naked male body with the penis fully exposed. In allowing the appeal by Eastern Express, the High Court judge noted that he had never, until then, heard any sensible person suggested that the statue of David was indecent. He considered the OAT conclusion as "totally incomprehensible" and one which could not have been reached reasonably given that the advertisement was published on an inside page of a serious English-language newspaper and was clearly intended to be read by normal, reasonable adults.
Waste of time and money, indeed. Unfortunately Oiwan works in the non-profit sector, not for a media group with real resources behind it. As Roland points out, given inflation, Oiwan's legal bill is likely to be several times the Eastern Express' legal bill in 1995. If you'd like to help her out, please click here.
One final comment on this whole issue. People have asked me: "but if Oiwan gets away with posting a picture of a topless woman on Inmedia Hong Kong, doesn't that give all the Hong Kong tabloids carte blanche to publish topless girlie pix to increase their circulation?"
Frankly, I appreciate not being confronted with pictures of boobs at newsstands. I hope that if she wins her case, the result will not be boobs all over the local newspapers (unless that's seriously what everybody in Hong Kong wants), but rather will be part of a re-examination of how the Hong Kong people as a society can best determine and enforce community standards - in a way that makes sense and is considered fair by the community.
I also want to stress that I don't think a foreigner has a right to tell the Hong Kong people what their decency standards ought to be. They've got to sort that out themselves. But right now, the issues here are twofold: First, it would appear that OAT does not really represent the will of the Hong Kong people. The Hong Kong people are going to need to sort out an alternative to how OAT currently operates or they are going to continue seeing these cases which take up an incredible amount of time, energy, money, and attention which could all be better spent on other things. (I for one never imagine I would be spending so much time writing about a topless photo!!) Second, assuming that the community wants to keep nipples out of the local media, does the punishment fit the offense? In Oiwan's case I don't see how it does.
Knowing that the publication of unpixellated nipples has always been a big no-no for media in Hong Kong, one could argue that Oiwan's blog post was ill-considered, especially given that she and her organization are financially unprepared for the legal battle she now faces as a result of her "civil disobedience." However, assuming that the prohibition on open publication of nipples is a community standard that the Hong Kong people want to uphold (which is not for me to judge), I hope that the OAT and the courts will consider that the context in which she posted the picture was very different from the context in which topless girlie pix are published in newspapers to boost circulation, or in which topless photos are posted on commercial websites to boost web traffic.
Oiwan posted the offending photo on a very serious (one might say very earnest) citizen media website which has no history of posting photos of scantily-clad or unclad women in order to boost traffic. Many blogs and websites do post sexually provocative pix on a regular basis to boost their traffic - even some political sites - but Inmedia Hong Kong is definitely not one of them.
Furthermore, Oiwan published her the photo in the context of a heated political discussion about how TELA and OAT operate. One might argue that the tone of her post smacked of "bring it on" - which TELA and OAT certainly did. But is a possible HK$400,000 and 1-year jail sentence, plus a criminal record whether or not she gets jail time, a punishment commensurate with any possible harm to community standards that her picture could have caused? I just don't understand how that could be so.