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July 13, 2007



regarding warning message, i think it is wise to do so at this moment because according to the obscene and indecent article ordinance, when an article has been identified as indecent or obscene, the distribution would also subject to the fine of HKD400,000 and 1 year imprisonment.

and according to a recent speech made by the sec of security in the legislative council. when you link to the article knowing that it is indecent, you are distributing the article. such interpretation of hyperlink distribution has the silencing effect in regard to talks and questioning of the judgment by the OAT in the internet.

as rebecca is in hk, she is under the tyranny of such insane rule... in fact we have moved the whole article from inmedia to blogspot to avoid putting a 1/3 page warning message in our frontpage!

Rebecca MacKinnon

Charles, when have I said on this blog or elsewhere that child pron should not be censored? I have never advocated zero censorship. I have advocated that it be done minimally, focusing on material about which a society has clear consensus that it is evil (as child pron certainly is). Also that when censorship must be done it should be done in a way that is transparent, accountable, and fair, so that users and citizens know the censorship is happening, know why it is happening, and under whose authority it is happening.

It is also important, in a society that is or aspires to call itself democratic, that citizens must be able to appeal and protest in a reasonable, non-violent manner without fear of imprisonment when they believe that a particular act of censorship is happening without the consent of the governed.

I displayed warnings about the links and did not post the full-breasted picture in part for the reasons Oiwan stated. But there is also another reason why I did not display the full-breasted picture on my blog or link to it without warning: courtesy to my readers. Many of my readers read my blog at work or at home when their kids are running around. It's common courtesy to give them a choice of whether or not to visit a webpage depicting a topless woman when colleagues or bosses might be walking by and get the wrong idea, or just at the moment their six-year-old happens to be standing next to them.. then runs off and tells mommy that daddy is looking at boobs on the internet...

Oiwan chose not to exercise this courtesy toward her readers, partly I think because she was making a political point and aiming to shock. But given the nature of her photo - an artistic nude, posted in the context of a discussion of policy - is it fair to make her lack of courtesy a crime?

To face possible jail time, or at very least a fine and a criminal record for the rest of her life, just because she posted an artistic picture of the top half of an unclothed, adult, consenting woman who was not subject to exploitation, trafficking, or abuse, in the context of a political debate about media policy, strikes me as not only excessive but completely out of step with the rest of Hong Kong's culture.

Like some of the other commenters pointed out, there is plenty of real vice and lewdness going on in Hong Kong, which is either exploitative or genuinely detrimental to the sexual values of young people here, that is getting off scott free. So why are these people with political power choosing to go after people like Oiwan instead?

charles liu

blogs.com is a US site, so it's not subject to HK law is it (and the reason Lam's post was moved to wordpress, isn't it?)

Each country is entitled to their own laws and sensitivity. Heck, R your facebook photo probably violated some Saudi on-line porn law.

Lam if you don't want the HK porn patrol run by bunch of conservative Christians, volunteer, apply, or run for the position.

charles liu

In this case the "clear consensus" is community standards provided by citizen volunteers who cared enough to put in the time and effort.

In this case according to Roland the conservative Christians stepped up while folks like Lam fell asleep in HK.

Hi Rebecca ---

I'm with Charles here: The irony of your warnings overwhelms the point you are trying to make.

The point of his comment about child porn (were you using pron in a technical sense I'm not familiar with or was that another censorship irony?) was that you feel that there is a point that is clearly over the boundary, but that this boundary is not universally held to be in the same place.

Would you comments about the justness of Oiwan's actions still hold if she had posted artistic nude photos of a child? Erotic but artless photos of an adult? How do you determine where this line lies, and why is the line that the Hong Kong government has decided on not equally valid?

With regard to your warnings, I think there is a large difference between "Caution: Not-Safe-For-Workplaces" and "(artistic nudity)". The first presumes a universality that simply does not exist, while the second gives information that allows a viewer to apply their own judgment. If courtesy towards viewers is the goal, does the second not suffice?

I think there is, as Charles implies, something deeper happening here than simply courtesy and hasty word choice.

(To be clear, I applaud Oiwan for challenging this law, and wish her luck personally and politically. It's the blog post and the attitudes I read into it that I'm taking issue with, not Oiwan's actions.)

Rebecca MacKinnon

Charles your final comment raises a good question which I am not expert enough on HK politics to answer: Why haven't more liberal and moderate groups seen fit to be involved with these regulatory bodies? I hope a Hong Kong citizen will answer that for us. But that leads to the question of whether the way HK's present government structure and political system is particularly conducive to tyrranies of the minority - which I guess is what the whole argument over universal suffrage and the latest green paper is about.

As for the last anonymous comment (interesting that the commenter did not want to leave his/her name, even a pseudonym):
Let me be honest with you guys here. I was really hesitant to get involved in this issue at all because erotica and porn (pron bcz the correct spelling of that word is a keyword that sometimes triggers corporate nanny-filters) are simply an area in which I have no expertise and has never been my focus.

I also held off writing anything about Oiwan's issue (Boingboing had posted about it twice before I did) because I feared getting sucked into a quagmare debate about whether I was passing judgment on a society's right to choose where it draws the line over what is acceptable and what isn't. I also felt that as a newcomer I needed to learn more about this OAT and TELA system before saying something about it, and would have preferred in an ideal world to wait until I could get some kind of response from people at Yahoo/Flickr with their side of the story. (Apparently the guy at Flickr who would be available to explain it all to is on vacation...) But Oiwan is a colleague of mine who works on Global Voices, and she could wind up with a criminal record for something she posted in the heat of a political discussion to make a political point. It would be a betrayal to her and to her courage for me not to say something. Staying quiet any longer just felt wrong. So I went for it.

For the record: personally I believe any photo of a child that portrays him or her as a sexual object is exploitative, with negative implications for that individual which he/she does not control, and there is a good case for banning such material outright. But that's my personal opinion. It's also not relevant to Oiwan's case. I know her well enough to know that she would never post photos of naked children on Inmedia. And I think she knows that nobody in their right mind would defend her for doing so.

To clear up any confusion about my perceived hidden agendas here, I believe that any society has the right to choose where that line should be drawn and has the right to enforce that standard. Foreigners don't have a right to come in and declare "here is where you ought to draw the line." However I also believe that it's pretty impossible to tell whether a community standard is really representative of the community - or whether it's just the standard of a powerful minority - if the process for determinining the standard is opaque or unrepresentative. There is also a human rights question when the punishment is completely disproportionate to the social harm caused by the infraction. Plus there are situations where anti-indecency laws are used to silence political dissent, something which Oiwan believes is happening here. I don't have a right to impose my morals on the Hong Kong people. But I think I have a right to say that I believe a criminal conviction of Oiwan in this case would strike me as extremely unfair especially since the OAT seems to be very selective in its enforcement - or they would be going after government sex ed sites as an Apple Daily blogger recently pointed out.

About my warnings and things. Again, I'll be honest. I think this was the first time that I have ever linked to semi-nudity. I have no experience when it comes to the best ways of linking to erotica.. I tried my best to be responsible and keep my employer out of unnecessary trouble (trouble over boobs as being IMHO not worth it for me, I have other things I'd rather get in trouble for if I have to get in trouble) while still doing everything I can to advocate for Oiwan's case. Clearly I came up short in your view. I am sure that if I had more experience with such things - as a consumer of or linker to erotica - I could have used better wording to maximize courtesy to users and minimize passing judgment about the material and the people who might look at it. Thank you for your advice on that score and I will keep it in mind if I ever feel the need for arguments' sake to link to erotic material again.

Would you please elaborate on exactly what hidden agenda you are alluding to when you say "something deeper happening here."


"In this case the "clear consensus" is community standards provided by citizen volunteers who cared enough to put in the time and effort."

I would say that the issue I have is with the double standards imposed by the law enforcers. Why are internet revolutionaries targeted but gambling dens and prostitution dens continue to prosper?

In many Asian countries, prostitution is actually illegal. But law enforcers do not completely declare a war on prostitution, they merely make sure that it is "under control". Is pornography on the internet then not "under control"?

Hello again Rebecca ---

Actually, I thought I was leaving my full name and email address (Nathan Kurz, [email protected]). I'm a friend of Ethan's, and arrived here through his blog. I signed in with TypeKey, and the options to enter a name manually went away. I don't know why this caused the attribution to appear blank.

The 'something deeper' referred to the parallel between the currently 'obligatory' NSFW tag and the censorship Oiwan is challenging. I didn't mean to imply that you had any personal hidden agenda, only that your desire for clarity in censorship laws was at odds with the social forces that require you to write with such elaborate contortions.

I appreciate Oiwan's approach (as I understand it, she's obviously free to correct me) because it seeks to change the system by declaring artistic nudity to be non-obscene and treating it as such. The NSFW warnings strike me as counter to this goal. Leaving open the question of whose work and where, if the photo is not obscene (or erotic, or harmful, or degrading), why is it not safe for work?

More generally, the NSFW approach strikes as a classic chilling effect: the discussion is framed by the apparent concession that material _is_ offensive, and needs to be treated as such. Although it's possible I'm only afforded the luxury of these secondary concerns by virtue of where I live (America), I think one needs to pay attention to the social control structures as well as the legal ones, because these internalized controls can actually be more pervasive and far-reaching.

As to why Oiwan is being prosecuted and the sex-ed sites are not, I think it is because those with power view her as the greater danger. For some the line of danger might be (as Charles suggests) the exposed female hair in your photo, for others (twisting your words a bit to show the lines are still fuzzy) a four-year-old playing naked in a fountain. I think that those who do not differentiate between artistic nudity and pornography are correct to assess that Oiwan and her way of thinking are a greater danger to their current hold on power than an educational site with sexual content.

Rebecca MacKinnon

Nate, I see. I am often accused of harboring hidden agendas and being part of conspiracies of various kinds, so I assumed, especially given that you had no name on your post, that your argument was in that vein.

On the NSFW, I know I can't avoid offending all people in all cultures. By virtue of being a woman not in a burka who has opinions expressed publicly I am an abomination to some people on this planet. However those people are not typically among my readers.

My readers however DO include many people who read my blog from work. I considered this scenario: a friend visits my blog from his office in Hong Kong. He is multitasking while reading and clicks on the link to the photo in question without thinking about it too much. His boss happens to walk up to his desk and sees the screen right at that moment. I don't know about how it goes from there in offices wherever you live, but chances are in Hong Kong and many other places that his boss will get the wrong idea (even though he shouldnt since after all its art, not porn, but reality is not ideal) and this unfortunate coincidence could have a negative impact on that person's standing at his job. It would be inconsiderate for me not to warn him against letting this happen. That is all.

I don't agree that my attempt to avoide putting my readers in such situations undermines my support of Oiwan. I choose to set a certain standard for my blog. She is free to set a different standard for hers, which she did. I might not agree with her standard and would frankly not have posted that picture if I was her because I don't want to put my readers in the position described above. But she certainly doesn't deserve a criminal record for having a different standard about her relationship with her readers, or who she wants her readers to be - especially given that the material in question is not exploitative, does not seek to profit from the exploitation, corruption, or suffering of others, and was made in the context of a political argument.

As I said, I have no experience linking to photos of topless women so I am certainly open to suggestions for better phrases than NSFW next time I am forced for arguments' sake to link to this kind of, in order to avoid having to spend so much time defending myself endlessly on this kind of point.

If you think this makes no sense then we are just going to have to agree to disagree.

charles liu

Actually, "terrany of Democracy" is the rub here isn't it?

If you don't participate in the volunteer program to set community standard, then the fault is no one but yours.

The responsible thing to do is volunteer and affect change from within the current states (even in America we frawn upon stuff like Waco and Oklahoma City).

But then again new/citizen media isn't really about responsibility is it?

The struggle for power, even peacefully, is ultimately a form of warfare. (Credit goes to Col. Robert Helvey, a CIA advisor to TAM students and Falun Gong.)

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