RConversation

Oiwan Lam's indecency case: demanding more transparency

The good folks at the Hong Kong-based web company Outblaze have posted a hilarious cartoon (above - click through to their website for a larger version) accompanied by a cleverly written blog post about Oiwan Lam's indecency case. Remember the case of the blogger who is facing a possible jail sentence and/or a crippling fine because she posted a photo containing exposed female nipples in a commentary on InMediaHK, a non-profit citizen-media website, in the context of a political discussion about Hong Kong's Obscene Articles Tribunal and indecency laws? The Outblaze editorial team concludes:

While the world laughs at Hong Kong, let us make an appeal for a bit more common sense to be deployed in this fair city. Let us stop being automatically terrified of nipples or other parts of the human body, particularly in artistic context. Let us treat the Internet as a new medium and realize that we cannot shoe-horn outdated laws to apply to new media, because they will fit extremely poorly in the new digital framework. Let us proclaim to the prudes: “if you don’t like, don’t look”. And, above all, let us reform and modernize TELA and OAT before we are forced to endure further silliness. Organs that are supposed to safeguard the public good – not oppress it – should be informed, open, and transparent, and neither TELA nor OAT appears to be anything of the sort.

Read the whole thing. It's a great read.

In my last post updating Oiwan's case last month, I reported how Oiwan was having trouble getting the Television and Entertainment Licensing Authority (TELA) and the Obscene Articles Tribunal (OAT) to answer her questions - answers which she believes are important so that she can adequately prepare her defense.  In her new blog, she posted the full text of her reply to OAT, which requested that she "Please tell the Tribunal the relevance of the questions in relation to the full hearing."  Her letter begins:

In response to your letter dated July 24 2007 concerning the relevance of my questions in relation to the full hearing, I would like to refer to the mission statement of Television and Entertainment Licensing Authority (TELA) that they follow the principle of “Transparency to the public”. I believe that the information that I asked for should be open to the public inquiries not to mention the fact that I am the applicant in this classification proceedings.

As I said in my previous letter, the information that I asked for “is necessary for my preparation of witness statement, expert opinions, submissions, etc. as they directly affect the classification of the article – which can lead to a serious criminal charge.”

However, to entertain TELA and OAT’s question, I would like to refer to CAP 390, section 7(2), which states: “Subject to subsection (3), in the event of any difference between the members of a Tribunal, the decision of that Tribunal shall be that of the majority of them or, in the event that they are equally divided, that of the presiding magistrate.”

Questions 1-4 from my letter dated July 17 are to seek further information on the above process described by the law. If such process had not taken place, I would seek judicial review for the interim classification.

Click here to read the rest. Then on August 19th Oiwan received a reply from OAT. Here is her full post:

Got the latest update from the Obscene Article Tribunal. It is really amazing to read their letters.

Upon receiving my letters for further info, OAT is now writing to Television and Entertainment Authoring to seek inquiries about “point of law” regarding its duty. Here is the OAT letter to TELA cc to me:

"Dear Sir,

Case No. OAGO000147/2007

We refer to the letter from the applicant dated 9.8.2007.

Question 3 and 4 in the letter probably involve point of law.

The tribunal would like to have your response to inter alia
(1) whether the Tribunal has a duty to disclose the process of interim classification, which according to s.14(1)(a) of Cap. 390 is held in private without the attendance of anyone and
(2) if there is such a duty, the degree of disclosure; within 6 weeks from today."

Is it usual that a judicial body would seek advice from an administrative body on its duty? Anyone with a legal mind can throw some light?

Any ideas, anyone?

Bringing Creative Commons to Hong Kong

(photos by Charles Mok)

On Monday night my center hosted a meeting for people interested in bringing Creative Commons to Hong Kong.

In case you haven't heard of it before, Creative Commons is an alternative approach to copyright.  In this Internet age, many people are creating and sharing their works for non-commercial or only partially commercial reasons.  The point is not to advocate piracy: many artists, authors, entertainment companies and news organizations want tight control over the usage rights to their work so that they can make maximum profit from every single thing they create, and they have a right to do so.  (Although CC founder Larry Lessig does think that U.S. copyright law has gone overboard.) But many other people are more interested in seeing their works used and distributed as widely as possible than they are in making money off those works, as long as they receive credit and recognition for their creations. Creative Commons licenses enable us to do this.  CC is especially useful for non-profit, publicly funded, and educational content, but there are commercial artists and Internet companies who also use these licenses. I know musicians and photographers who have found it profitable to put out at least part of their work for free on the web under a CC license because doing so helps them gain a loyal audience and reputation, which in turn leads to paid work or performance opportunities that they would not have gotten otherwise.

The CC licenses are being localized for a growing number of legal jurisdictions, including for Mainland China and Taiwan. But nobody has yet localized them for Hong Kong.  Our meeting on Monday formed a group that will spearhead the localization of Creative Commons licenses for Hong Kong law, then work on promoting the use of CC in Hong Kong and educate people in Hong Kong about how to use them. We've set up a wiki site with more information, which anybody interested in helping bring Creative Commons to Hong Kong can join.

Here is an excellent video that explains Creative Commons:

...and here is an interview with Creative Commons founder Larry Lessig about how it all works:

Oiwan update: TELA and OAT won't answer her questions

Oiwan Lam's indecency hearing is now likely to take place in September - postponed from August, which is good because it gives Oiwan more time to prepare. (For details and background on her case please click here, here, here, here, and here. Oiwan's personal statement about the case is here.)

Oiwan has been trying to get more information from the Obscene Articles Tribunal so that she can prepare for her hearing with them. On July 17th she wrote them a letter asking the following questions:   

1. Where is the venue of the meeting which did the classification? Who had attended the meeting? Apart from the principal adjudicator and two committee members?
2. How were the two adjudicators designated? Selected by the Registrar of OAT? Rotated according to the committee members’ list? Or by computer random selection?
3. Had there been an actual voting? If there is, what classification is opined by the two adjudicators? What is the opinion of the principal adjudicator? If no voting were made, please describe how the classification was arrived at? For example, was the suggested classification made by any of the three adjudicators and then consented by all? If that was the case, who had suggested the classiication?     .
4. Among the two adjudicators, Mr. 薜國強 and Mr. 黃樂豪, did they express any opinion towards this particular article? If so, what are their opinions? Are there any minutes, written or sound record of that classification meeting? And their opinions?
5. Had the principal adjudicator and the two adjudicators been informed of the fact that the photo is a hyperlink to flickr (an international photo sharing site with its own guideline for indecent material)? And the nature of the website www.inmediahk.net where the artile is published?
6. Had TELA (Television and Entertainment Licensing Authority) or Department of Justice given any remark, comment, legal advice, reference materials, letter of complaint or supporting document when they submitted this particular case to OAT? If so, I should like to know the details of the above documents.

In her letter she also gave the following reason for asking these questions:

The above information is necessary for my preparation of witness statement, expert opinions, submissions, etc. as they directly affect the classification of the article – which can lead to a serious criminal charge. Am looking forward for your reply at your earliest convenience.

Writing on her Facebook page today, Oiwan updates us on the response she received from OAT:

OAT forwarded my letter to TELA, and TELA wrote back to them: "Futher clarifications from the applicant may be needed and the Tribunal may wish to ask the Applicant to indicate the relevance of the questions in relation to the full hearing".

OAT then replied to me in one sentence: "Please tell the Tribunal the relevance of the questions in relation to the full hearing".

Apparently the reason Oiwan gave in her initial letter: "The above information is necessary for my preparation of witness statement, expert opinions, submissions, etc. as they directly affect the classification of the article" - is not enough for them.

Talking Web 2.0 in Hong Kong

Web2.0 is starting to pick up in Hong Kong - at least in certain quarters. Angus Lau, Hong Kong's main Web2.0-blogger, reported on Hong Kong's first-ever Web2.0 conference earlier this month - which I missed. Angus said that while it went better than he expected, it was mainly an intro to Web2.0 for people who know little or nothing about it.

Today I went to a Hong Kong Web2.0 seminar in Cyberport organized by Diantang Communications. It was a small event - just a few dozen people in the audience, and it seems that a good number of those came from Web2.0 startups. The seminar program was unfortunately posted on Diantang's site in the most blog-unfriendly format, PDF, so you'll need to download it in order to read the whole thing.

(<rant>I dream of the day when every Web2.0 conference organizer actually uses a Web2.0 media platform to publicize the conference - it need not cost anything in web development time, they can just throw something up on Wordpress or Typepad or Blogger...link to the websites belonging to the speakers, link and trackback to the bloggers you want to attend, try to get a discussion going beforehand about who will be going and what they're interested in discussing. Using Web1.0 tools to publicize a Web2.0 conference gives the impression that the organizers don't understand Web2.0 themselves, which impacts attendance.</rant>)

Web2.0 guru Tim O'Reily was invoked frequently. Somebody pointed out that Web2.0 is more than using lots of Ajax - rather, it's about creating and facilitating conversations, and enabling the user to use, combine, define, create, and react to content the way he or she chooses. 

A major focus of the afternoon was on how to find more effective ways to monetize the participatory, user-driven, mash-up aspects of web2.0.  Is there a business model beyond getting bought by Google or Yahoo? How do you become the next Google instead?

The most interesting talk to me was by Keith Li from m-gen.com, a "mobile 2.0" company. He described how mobile users use the web very differently than people who access the web from computers. They tend to be the people who aren't doing white-collar office jobs with computers at their desks, but rather people with the kinds of jobs that require them to be outside or on the road or running around a restaurant, or whatever it is, and don't have much internet access at home either - or not the kind that makes private or personal conversations and interactions possible. These people find it worthwhile to pay subscriptions for mobile web services. His company developed a mobile blogging site which they then sold to a company targeting Singapore, Malaysia, Thailand, Indonesia and Vietnam. He commented that it's interesting how companies in South East Asia seem to have more "insight" than those in Hong Kong when it comes to utilizing these technologies.

As is almost always the case with any conference, I got as much out of my brief interactions with people sitting around me and hanging around afterwards than I did from the talks themselves. It was great to finally meet Angus Lau in person. It was also fun chatting with a group of people who are doing some very interesting work for Outblaze here in Hong Kong. They are now running a blogging platform for Sanrio - which means Hello Kitty and everything in her family. I bet you didn't know that Hello Kitty fans are now blogging in droves on a pretty sophisticated Wordpress Multiuser platform, with video editing and other media creation tools included.  And they're not all fluff all the time.. one of them writes about Hong Kong censorship and the environment when not enthusing about the latest Hello Kitty gear. (Disclosure: Outblaze CEO Yat Siu is a friend of mine and Sanriotown sponsors the Japanese translation section on Global Voices.)

I hope that these guys (or somebody) will eventually launch a more general blogging community for Hong Kong - one which local professionals and aspiring journalists would feel comfortable using as a platform for sharing their ideas and work.  I'd also love to have my students using something more local than Uniblogs.org, which is what we're mainly using now. Uniblogs.org is has some good features but is a little buggy, and at the height of the semester when lots of universities are using it all at once it gets really slow.  (We don't want to have the university hosting student blogs at this point for a bunch of reasons, and Wordpress.com is blocked in Mainland China - where half of my students are from - so if I want to use a Wordpress-based hosted platform I don't have a lot of other stable options at the moment.)

Many times, what potential users want isn't nearly as fancy as startup guys think.

Artistic nudes now OK in Hong Kong?

Hong Kong blogger "diumanpark" has cleaned up the Cupid & Psyche painting which the Television and Entertainment Licensing Authority nearly yanked from the Hong Kong Book Fair.

Roland Soong reports "the Hong Kong blogs are forming a ring in which they are posting photographs of artisitic nudes." Examples here, here, here, here, here, and here. (Note: Most of the pictures are classical European paintings or sculptures showing bare breasts of women and/or bare genitals of men.)

Roland also brings us a snippet translated from The Sun:

Yesterday morning, senior Hong Kong SAR officials met to discuss the storm over the book <Love Mythology> and they held different opinions about what to do.  The eventual decision was to let Secretary for Commerce and Economic Development Frederick Ma Si-hang study the problem.  The immediate order was for Television and Entertainment Licensing Authority commissioner Maisie Cheng Mei-sze appear in person to explain.  It was also decided that in the future, no work of art will be listed as an indecent article.

 I have linked to the main site rather than the article because, annoyingly, the Sun's URLs are not static. So  you'll have to search 影視處 to find the original Chinese story. Here is the key bit that Roland translated:

港府消息透露，政府高層昨早討論《愛情神話》風波，各方持不同意見，決定由商務及經濟局局長馬時亨研究，最後指示影視處處長鄭美施下午現身「解畫」。另外，為方便執法，據悉內部同意今後藝術品一概不會列為不雅物品。

The key quote here is: "今後藝術品一概不會列為不雅物品" "in the future, no work of art will be listed as an indecent article."

If true, this could be helpful to Oiwan Lam's case because the photo she posted was taken, and displayed on Flickr, by a serious photographer as a work of art - not as a smutty tabloid pic. Oiwan made clear in her explanation of her criteria for selecting the photo that she was very deliberately seeking an artistic nude, not something lewd. (Note: that 2nd link contains the offending photo, which shows bare breasts with nipples.)

I wonder if Flickr will unblock Jake Appelbaum's photos for Hong Kong users, now that it is established that Hong Kong people are capable of handling artistic nudes?

Another interesting tidbit: In bringing us reports from the Hong Kong Chinese press about the public ridicule TELA is receiving, Roland also translates some interviews with booksellers. One says that he withdrew the books of Chinese internet sex writer Mu Zimei on TELA's advice. Banned in the PRC.. banned now in Hong Kong too?

Oiwan Lam's expensive fight against an unpopular tribunal

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 [1995] 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.

Oiwan's open letter asks for your help

Actually Oiwan Lam doesn't need freeing yet, but that's the rallying cry being used by her supporters who have now set up a blog and a Facebook page. You can click here to contribute to her defence fund.

Oiwan is fighting an indecency ruling for posting an artsy topless photo she found on Flickr. She is a member of Hong Kong's local citizen media movement and has gotten increasingly involved in free speech activism over the past few years.

I took the picture below during the July 1st pro-democracy march, where she and her colleagues from InMedia Hong Kong were fundraising and demonstrating about what they see as a creeping chill over speech in Hong Kong. The inflatable hammer she holds is labled "Obscene Articles Tribunal."

Oiwan has written an open letter on Inmedia's English-language sister-site, Interlocals.net. She explains her background, her concerns, and the events leading up to her act of "civil disobedience."

She also explains why she thinks Flickr's decision to locally censor the photo she used - a month after she found it there and posted it on her site - may have happened under advisement of the Television and Entertainment Licensing Authority (TELA). "According to their administrative procedure," Oiwan says, after TELA notified her that they were referring her case to the Obscene Articles Tribunal (OAT) "they have to contact Yahoo Hong Kong and to give them advice."  The OAT's indecent ruling came down after the photo was censored to Hong Kong's Flickr users. She writes: "the compromising filtering policy of flickr via Hong Kong Yahoo, might have given them the confidence that they had successfully tamed a global company, why not this shabby homemade website?" We don't know the answer. We haven't heard from anybody at Flickr, Yahoo!, TELA, or the OAT to clarify what actually happened, who talked to whom and who was influenced by whom.

One clarification needs to be made: Oiwan writes that I have a source which "seems to confirm that it is a Hong Kong Yahoo’s decision and judgment to comply with the TELA guideline." That is not actually the case. I have no source confirming communication between TELA and Yahoo, just a source who told me that decisions about content filtering for regional services are made at the local level, not by Flickr staff in the U.S.

As Oiwan points out, yesterday TELA nearly made a bookseller withdraw a book with a picture of Venus and Psyche on the cover.

Oiwan update: BBC interview, HK Govt double-standards & Flickr petition

The blog posts about Oiwan Lam's battle against an indecency charge (largely supportive) are proliferating in English and other languages as well as in Chinese.

She is starting to get media attention and was interviewed today on the BBC's Five Live. Click here to listen to the whole thing. Key points she made include:

• The obscene article ordinance was written in 1987 [under British rule - a decade before the handover to Chinese rule], and now being applied to the Internet without revision.
• They are trying to "set up showcase in Hong Kong to intimidate Internet users."
• Since 2003 the Internet has become a vibrant public space in Hong Kong, relatively free, while the traditional media has been "suffering from very serious self-censorship."
• As for Inmediahk.net in particular (where Oiwan posted the photo in question), it is a popular citizen media website that sometimes mobilizes people to act on political issues. "So I guess they want to put up a showcase."
• She is fundraising to raise the money in case she is indeed fined up to Hong Kong$ 400,000. Also she says: "I don't think it's reasonable to face such penalty so I will continue to pursue the court case."
• Asked whether she's confident about her case, Oiwan says the lawyers she has consulted all say it's very unlikely that she will win. So she needs to be prepared to take the case to the district court or even high court. (Which will be extremely expensive.)

UPDATE: If you want to help Oiwan with her legal fees, click here.

Meanwhile, Charles Mok (writing in Chinese) has posted pictures of artwork being shown at a public exhibition in Times Square, a popular shopping complex here in Hong Kong. They include sculptures of a naked man and woman with prominent privates of all kinds, plus a watercolor of a woman lying naked in the grass, with breasts clearly exposed and legs spread open. The photo that brought Oiwan Lam an indecency ruling is a couple notches less "indecent" than these, if you want to get into the indecency-rating game. And they are on public display. What gives?

He also links to this Apple Daily item (also posted here on the author's blog) which was partially translated the other day by Roland Soong. It's title in Chinese, 只許州官畫陽具 不許百姓露兩點, translates very loosely into English as "Only officials can draw the Male Instrument while ordinary folk can't show the Two Points."

It refers to a hilarious animated holiday greeting card publicly available on a government family planning website. I captured a couple of shots. Click on the image below to watch the full flash animation:

Here is Roland's translation of the Apple Daily piece/blog post by somebody writing under the pseudonym "Blue Sky:"

... This writer found some computer animations on a government website and lodged a complaint with the Television and Entertainment Licensing Authority to demand their removal.  Perhaps TELA did not want to embarrass the government or because they were sexually impotent and therefore unaroused by the animations, they informed me recently: "We have investigated and according to the standards of the Obscene Articles Tribunal, we believe that the animations that you complained against are neither obscene nor indecent."

But based upon previous decisions by the Obscene Articles Tribunal and the Television and Entertainment Licensing Authority, this response was unsatisfactory to me.

... The two animations were the e-greeting cards from the Hong Kong Family Planning Association (see Card 1 and Card 2).  In one of the Christmas cards, an erect Penis pointing upwards went hopping and bouncing into Vagina's house ... in the animation, Penis even kissed Vagina.  The reasons why I thought that these two animations were 'indecent material' are based upon the standards of the Television and Entertainment Licensing Authority/Obscene Articles Tribunal.  First, in the case of the Statue of David [note: yes the Statue of David was ruled indecent by the OAT in 1995], the penis was just a small part and it had be covered up because of indecency.  In the animation, Penis was the main character and occupied much of the visual space.  It was also a highly realistic 3D animation.  So how can it not be indecent?  Secondly, a vertical Penis is like an erect penis.  If the drooping penis of the Statue of David was indecent, then why should a bouncing erect Penis not be indecent?  Thirdly, the erect Penis went bouncing and hopping to the home of Vagina, where they encountered a problem of "being unable to enter."  Why does that mean?  If this animation were to be shown in an elementary school classroom, it would surely draw lots of laughter from the imaginative young students.

From any angle, the two Family Planning Association animations went further than either the Statue of David or the Chinese University Student Press, or even the masked nipples of the female British soldier in the February 27, 2007 issue of Wen Wei Po.  Based upon the previous standards of the Television and Entertainment Authority and the Obscene Articles Tribunal, these two animations are not just indecent, but obscene.  But since the logo of the Family Planning Association is present, they used a different set of standards.  The Television and Entertainment Licensing Authority did not even need to refer the greeting cards to the Obscene Articles Tribunal for classification.  Instead, they just replied to me that there was no problem based upon some vague "standards of the Obscene Articles Tribunal."  Does this mean that Hong Kong has become a sexless international city in which "government officials are allowed to draw penises, but citizens cannot show nipples"?

Meanwhile another Hong Kong blogger has a petition calling on Flickr to stop the way it completely blocks access by Hong Kong's adult Flickr users to anything not categorized as "safe." (Including the artistic topless picture Oiwan linked to which is less lewd than the art that Charles Mok photographed at a public exhibition in a Hong Kong shopping mall.)

People are starting to spread the petition with this badge:

Hong Kong, obscenity laws, and Flickr's regional censorship

On May 11th, Oiwan Lam (pictured at left protesting media content controls) committed what she says was a deliberate act of civil disobedience.

Writing on the citizen media website InMedia Hong Kong, Oiwan called on her readers to post links to erotic websites and also included an artsy photo of a topless woman that she found on Flickr. The post was originally published here, but has now been removed from the InMedia site and posted on a Wordpress.com blog here. (WARNING: that last link is for people over 18 only and is not work-safe.)

As Boingboing and others reported earlier this week, Oiwan's post has been classified as "Class II indecent" by Hong Kong's Obscene Articles Tribunal. The maximum penalty for this is HK$400,000 (US$ 51,162) and one year in jail. While people here think she is unlikely to end up doing jailtime, she certainly faces a long drawn out court battle and series of appeals, and if she loses will end paying a hefty fine.

(UPDATE: A friend who has worked in Hong Kong media for a long time points out that whatever the exact punishment, the implications of a conviction are very serious. "The conviction is passed around to all governments, and it does effect visas," the friend writes.)

At right is a cropped version of the image, minus the woman's breasts which were visible in the original. Click on the photo to see the original image. (WARNING: not safe for workplaces or small children if you don't like your kids seeing breasts.)

Oiwan displayed and linked to this photo as part of a protest against the fining of a man who posted links to porn sites in an adult online discussion group. She was also protesting the fact that a local student publication was recently classified as indecent after publishing a questionnaire about sexual behavior. She discusses her reasons in English here, here (WARNING: same warning as above applies to these two links), and here. Also see two posts about the earlier cases on Global Voices here and here. Oiwan is Global Voices Northeast Asia Editor.

Oiwan feels strongly that censorship of adult material is the thin end of the wedge for creeping political censorship - and the silencing of minority voices. In the opening of her "war declaration" post, as translated by Roland Soong, she writes:

The recent storm aroused by the Chinese University of Hong Kong student newspaper's erotic section is just the tip of the iceberg. Political censorsihp has been manipulating public opinion in seemingly apolitical sectors. Previously, we saw during the consultation over digital media copyrights how the state machinery used "protection of copyrights" to attempt to introduce a system to filter and delete contents, or else intimidate personal or small websites through fines.

Another gap through which political censorship can be introduced is pornography. This gap gathers the power of the state as well as the forces of religious people and fake moral politicians. So far, they have focused on gender and gay rights groups, but we must extend our battlelines in light of the court decision two days ago: the police filed charges against a netizen for posting hyperlinks to pornographic websites at a certain forum and the court arrived at a guilty verdict with a fine of HK$5,000. This is a very significant precedent for censorship.

Oiwan's court date is August 15th.  Meanwhile...

Flickr's New Regional Censorship Policies Enter the Mix

When Oiwan was asked by the Television and Entertainment Licensing Authority (TELA) on May 28th to remove the offending photo and blog post, Oiwan refused. One reason she gave was that Flickr, which has guidelines about adult material, had not flagged the photo as unacceptable and thus she had no reason to believe it was indecent by any reasonable standard. Click here to read in English about her conversation with the TELA official.

After the conversation Oiwan wrote: "In the guidelines of the largest photograph storage/sharing company flickr in the world, this photograph is regarded as acceptable and it is quite prominent in terms of search results. But the Hong Kong authorities have defined it as indecent. Where should we define the boundary for netizen and public acceptance?"

Then in mid-June, Flickr launched a new Chinese language service. After which  all Flickr users in Hong Kong whose Flickr accounts were set up through yahoo.com.hk (Yahoo! Hong Kong) could no longer access the photo that Oiwan had linked to on Flickr. Instead, they got a block page like the one on the above left (click to enlarge). The page says "This photo is unavailable to you" but gives the user no further explanation as to why.  This now happens any time a Hong Kong user tries to access a photo or account that has been rated "moderate" or "unsafe." They can only access areas rated as "safe." This is part of Flickr's new targeted censorship policy, as outlined in its FAQ item about filters:

If your Yahoo! ID is based in Singapore, Hong Kong or Korea you will only be able to view safe content based on your local Terms of Service so won’t be able to turn SafeSearch off. If your Yahoo! ID is based in Germany you are not able to view restricted content due to your local Terms of Service.

Exactly who determines what gets rated "safe," "moderate," and "unsafe" is not explained to users at all. Exactly what criteria are being used is also not made clear, and while community guidelines are referred to, it's not clear what these guidelines have to do with actual laws in the jurisdictions concerned. In fact, the entire user account of Jake Applebaum, the photographer who took that photo, is blocked to Hong Kong users, despite the fact that it is very unlikely that all his photos violate Hong Kong's obscenity laws.  (His account includes many pictures that don't involve nude people, including - I noticed while trolling his account - fully clothed staff photos for the Electronic Frontier Foundation...)

On June 22nd, TELA handed Oiwan's case over to Hong Kong's Obscene Articles Tribunal (OAT) without notifying Oiwan and InMedia. Then on June 26th, OAT classified Oiwan's article as indecent. In a recent interview Oiwan indicated that she believes there is a relationship between Flickr's censoring of the photograph and the OAT's indecent ruling. "This was some kind of concidence," she said. "Flickr changed its policy and then the Obscene Articles Tribune received my photograph for classification purposes."

Now let's be clear: I asked Oiwan whether she has any factual information linking these two events and she says she does not. Somebody from Flickr needs to address this on the record and clear things up. Oiwan's queries yielded only this e-mail from customer service [Flickr Case 283506]:

Hello,
Your picture has been marked "restricted" due to the adult
& sexual nature of the content. Regards,
Michelle

Oiwan believes that two key unanswered questions are:

1. Did somebody from the Hong Kong government contact Flickr or Yahoo! Hong Kong and ask them to restrict access to Applebaum's photo and/or account?
2. Were the actions of TELA and OAT influenced by the fact that Flickr had decided to restrict the photo in question?

We do not know.

On Wednesday Boingboing published an e-mail by Applebaum in which he made clear he is very upset about the way he has been treated by Flickr as a longtime user, with his entire account and all of its contents now inaccessible to his friends and potential clients in several countries. He also writes "They're about to be complicit in putting another (Thanks Yahoo!) Chinese citizen behind bars as an unintended consequence of their attempts to grab foreign markets."

Now, let's be clear that Oiwan is not packing her toothbrush, and Hong Kong's legal system is completely separate from mainland China's.  If Oiwan is eventually found guilty after a long expensive journey through the courts, and then fined, the extent to which her plight can be blamed on Flickr depends on the answer to question 1 above. If it's "yes," then one might argue that Flickr assisted the OAT's case, though the Flickr/Yahoo employees may or may not have understood what they were doing or been aware of what was going on with Oiwan.

I am told by somebody in a position to know, who won't talk on the record, that Flickr can only provide local-language services if it complies with local laws. This person says that the decisions about what gets blocked to users in different jurisdictions are made by staffers in these countries - not by staff in the U.S. People in the company also argue they are trying very hard to do the right thing by their users while finding a way to provide localized services in a wide range of jurisdictions.  The extent to which they claim in private to care about their users is, I'm afraid, not being conveyed very well in public - or to Flickr users.

Legally, Flickr is off the hook because in the Terms of Service users agree to allow Flickr staff to remove or block their content in accordance with the law as well as community guidelines, etc etc etc all  contingencies covered. I also don't think, when more facts become clear, that it will be possible to blame Flickr for having directly caused whatever happens to Oiwan.

However, this whole mess makes me wonder. Even if we assume political content is not being censored (Can we if certain political speech is illegal in some places?) and assuming that we are only talking about censorship of erotic/"adult" content, is it possible for a global internet company like Flickr (or Google) to censor different content for different national jurisdictions without creating major blowback?

The first kind of blowback is a significant decrease in trust by at least a segment of Flickr users - how big a segment depends on how well Flickr communicates with their user community. So far they don't seem to be doing that so well.

The second kind of blowback is more serious:  Are censorship decisions about made by Flickr staff (or staff of any other global user content hosting company) going to be used by governments as an excuse to prosecute certain cases? Without meaning to, will the company's internal content filtering decisions - which appear in this particular case to err on the side of caution in an attempt to comply with local law - inadvertently also help to shape the interpretation of local laws by local authorities in a more restrictive and conservative direction?

Is there any way to avoid this kind of blowback once you get into the game of local censoring? Or it just inevitable?

(NOTE: After hearing from a concerned colleague, extra warnings about the links in this post have been added.)

HK Digital Copyright Update...and Peter Yu's Google juice!

Last week I wrote about the excellent position paper on digital copyright in Hong Kong written by Peter Yu in response to the Hong Kong government's proposed copyright reforms - many of which are ill-advised, could harm freedom of expression in Hong Kong, and don't take the interests of all Hong Kong people  into full consideration.

Peter has followed up with an Op-Ed in the South China Morning Post.

He asks: "Should we turn into criminals the future pillars of our society? Should we slow development of internet services to protect creators of digital content? Should we sacrifice privacy, free speech and a free press in the name of copyright protection?"

Then he answers: "While the copyright holders' concerns are understandable, some of the medicine prescribed in the paper is, unfortunately, worse than the diseases it claims exist." (emphasis mine)

The SCMP puts their articles behind a paid firewall, but we have reproduced the whole thing for your reading pleasure here. (Peter holds the copyright for the piece, in case you were wondering.)

I was tickled pink to discover today that when I went to Google and typed in: hong kong digital copyright, Peter's position paper is the first result, followed by my blog posts on the subject - all ahead of the government consultation document! That means Peter and I are getting more incoming links than the government document. (Screenshot below for posterity.)

This is why I keep telling people: if you want to get attention on a policy issue you care about, you need to put your position papers on the web, you need to make them blogger-friendly and get bloggers linking to them, and ideally you need to be blogging about them yourself. Getting media coverage and putting articles in the newspaper is not enough, especially if those media organizations don't make their content freely available on the web.