Following is a speech by the Commissioner for Television and Entertainment Licensing, Mr Eddy Chan, at the Symposium on Protection of Children Online 2002 today (March 9):
A Self-Regulatory Framework for the Transmission of Obscene and Indecent Articles through the Internet in Hong Kong
Mr Soong, ladies and gentlemen,
Hong Kong is a free, open and dynamic society. We cherish the free flow of information and respect the individual's right of access to information, freedom to publish and freedom to express an opinion which are rights guaranteed under the Basic Law. The Government's long-standing policy is to strike a proper balance between protecting public morals and our young people on the one hand and preserving the free flow of information and safeguarding the freedom of expression on the other.
Protection of children and young people from the undesirable influence of obscene and indecent materials is generally effected through the Control of Obscene and Indecent Articles Ordinance (COIAO). And the provisions of this Ordinance are also applicable to electronic publications, including those published on the internet. While the Ordinance seeks to restrict the publication, circulation and display of these materials, free expression and freedom of publication are protected. There is therefore no requirement for compulsory or prior censorship on publications.
Our current legislation provides for the classification articles which include, among others, printed matter, sound-recording, and article published by electronic means (electronic publication), etc., into three different classes.
* Class I - Neither indecent nor obscene
* Class II - Indecent
* Class III -Obscene
"Obscenity" and "indecency" include violence, depravity and repulsiveness. Class I articles may be published without restrictions. Class II (indecent) articles must not be published or sold to persons under the age of 18. Publication of Class II articles must comply with certain statutory requirements, including the sealing of such articles in wrappers and the display of a warning notice as prescribed by the law. Class III (obscene) articles are prohibited from publication.
Our legislation also provides for the establishment of an Obscene Articles Tribunal which is a judicial body with exclusive jurisdiction to decide whether an article is obscene, indecent or neither. The Tribunal comprises a presiding magistrate and two or more members of the public drawn from a wide spectrum of the community to serve as adjudicators. In determining whether an article is obscene or indecent, the Tribunal shall have regard to the guidelines as set out in the law. These guidelines include the standards of morality generally accepted by reasonable members of the community, the dominant effect of the article as a whole, the class or age of the likely recipients, the location at which the article is displayed and whether the article has an honest purpose. Submission of articles to the Tribunal may be made by the publishers voluntarily or by authorised public officers in the enforcement of the law.
Control of Obscene and Indecent Articles transmitted through the Internet
The rapid development of Internet changes our way of life and opens up a new world of business and learning opportunities. There is a large volume of information transmitted through the Internet every minute and even every second. A great majority of the information and materials are in fact educational. However, there is no dispute that children and young people can be exposed to obscene and indecent materials through the Internet.
Generally speaking, content published via the Internet would also come within the ambit of the Ordinance. But over the years, there have been calls from different sectors of the community for the Government to introduce new legislative measures to deal specifically with the Internet. We believe that any attempts to regulate and control content on the Internet must have regard to the following principles and considerations -
(a) First, the need to strike a proper balance between protecting public morals and our young people on the one hand and preserving the free flow of information and safeguarding the individual's rights and freedom of access to information and of expression on the other;
(b) Second, the Government's policy objective to promote the development of the Internet industry, the wider use of Internet-based applications, cyber-learning, and to establish Hong Kong as the Internet hub in the Asia-Pacific region; and
(c) Third, the enforcement and effectiveness of any legislative/regulatory scheme.
The effectiveness of any regulatory measure is critical in our policy consideration and this is the one area which poses the greatest limitations. Vast volumes of information can be transmitted on the Internet anonymously and at extremely high speed. Much of the materials posted thereon are of a transient nature lasting only for a few days. To attempt, actively, to monitor content on the Internet would be impractical and unproductive. Furthermore, because of the increasingly global nature of the Internet, it is becoming more difficult to differentiate between local materials and those originating from overseas. This has added a further complication to our enforcement efforts, as we have no jurisdiction outside the Hong Kong Special Administrative Region.
To address the community concern over the transmission of obscene and indecent materials over the Internet, we believe that the most appropriate government-led and initiated action would be to build on our dialogue with the Internet Service Providers and to encourage them to develop a self regulatory framework. Towards this end, the Government consulted the Internet industry and the Hong Kong Internet Service Providers Association (HKISPA) in 1997 on the principles and practices of self-regulation. The consultations led to the eventual implementation of a self-regulatory regime by the HKISPA through the promulgation of a Code of Practice on Regulation of Obscene and Indecent Material in October 1997. It sets out the appropriate action which an Internet service provider (ISP) should take and details the procedures in dealing with complaints.
The Code of Practice requires members of the Association to take appropriate actions (including blocking access to obscene Web sites and cancellation of the account of subscribers for repeated breaches) to prevent users of their service from placing obscene materials on the Internet or using the Internet to transmit such materials. Association members are required to advise local content providers and distributors that indecent material put up by them should be accompanied by an on-screen warning on the Web page. The Code also sets out the procedures for dealing with complaints. Association members have to act promptly on complaints received and may refer unresolved complaints to my department and the Police for further investigations and enforcement action. The Association is also required to provide us with monthly reports on complaints received and the follow-up action taken.
Complaint Cases relating to Indecent/Obscene Materials transmitted through the Internet
Since the implementation of the Code of Practice in October 1997, the Association has received a total of 141 complaints. Of these, 33 complaint cases required follow-up actions. The web sites of seven cases with obscene content, which were hosted overseas, were blocked or had the hyper-link removed by the Internet Service Providers concerned. The remaining 26 cases were referred to the Police for further investigation and prosecution. Of these, 13 cases resulted in convictions leading to a penalty ranging from one to six months imprisonment, and three cases which involved minors under the age of 18, were dealt with under the Superintendent's Discretion Scheme. The Police was unable to take further follow-up actions on the remaining 10 cases because of insufficient evidence. For those 108 cases on which no further action could be taken, these were mainly sites which had already disappeared upon investigation or their publication was in full compliance with the relevant statutory provisions.
I am acutely aware that these complaint statistics are not impressive by any standards. They probably represent only the tip of an iceberg as we all know the amount of indecent and obscene information transmitted through the internet is colossal. Many encounters with such harmful materials will go unreported. But the complaint statistics and the conviction figures do underline the capability of the enforcement agencies in taking effective action against illegal content under the present legislative framework. From the community's perspective, it is important that we have established a mechanism for receiving complaints from the public and that we are able to take prompt action to remove the objectional materials as far as we can go. Nonetheless, I would agree that much needs to be done to publicise the present self-regulatory system and the complaints mechanism so that a more pro-active approach can be taken to remove obscene and illegal content from the Internet.
Publicity and Public Education
We fully acknowledge that a system of self-regulation or indeed any regulatory system on its own is unlikely to be able to prevent children and young persons from gaining access to indecent and obscene materials from the Internet completely. We believe that apart from regulatory enforcement, publicity and education are equally important in our efforts to tackle the problem. In the past few years, we have organised a series of publicity activities to enhance the public's awareness on the proper use of the Internet. We produced publicity pamphlets on the statutory provisions, their application to the Internet and the importance of parental guidance for distribution to schools and the public. Seminars and talks are also regularly organized for teachers, social workers, parents and students to exchange views on how we could tackle the problem through the joint efforts of the industry, the community and the Government. More recently, I have established under my department a very modest resource centre which aims to provide a wide range of activities to educate the public, parents in particular, on the use of filtering software and parental advice in guiding their children to browse through the Internet. The resource centre also provides reading materials and other useful information to facilitate teachers and social workers to develop their own teaching kit in providing counseling services to young students.
We also encourage ISPs to provide subscribers with free filtering software and offer special service for teenagers to minimise the chances of their being exposed to materials that are harmful to their healthy development. To encourage the use of filtering tools for home computer users, a list of filtering software has been posted on the home pages of the Hong Kong Internet Service Providers Association and the relevant Government departments for reference by the general public.
I do believe that we have now put into place a regulatory system which is pragmatic, in line with the international practice, and which meets the needs of the community and achieves the Government's overall policy objectives of protecting children and maintaining a free flow of information. However, we must not be complacent with ourselves. We must always remain alert and vigilant in our efforts to protect children online. With technological advances, the providers of pornography and those who trade in them are able to transcend national boundaries in their pursuit of profits and perversion. There is therefore a need for us to review the regulatory system on a regular basis, and keep ourselves informed of the latest developments in overseas jurisdictions so that we may consider new ideas and introduce further improvements to better serve the public.
I am very pleased that, in the first session of the Symposium, we have had distinguished speakers from overseas who spoke of their experience and their views as to how we may tackle this awfully complicated and sometimes emotive subject. As and when technology is bringing the world closer and closer together, there is a need for both the regulators and the industry to be fully aware of international trends and opportunities for co-operation. I am sure that much of what they said this morning as well as what would be discussed this afternoon and tomorrow will provide food for thought for everyone of us here today. I certainly hope that we could build upon this foundation of self-regulation that we have now established an even stronger tripartite relationship among the industry, the community and the regulator in addressing a serious community concern.
The Government will do its part by bringing all interested parties together in exploring how we may take on some of the suggestions and new ideas emanating from the Symposium. I hope that the industry and the community will also respond to the challenges which lie ahead. Ultimately, it is up to you and me to make our efforts worthwhile. Thank you.
End/Saturday, March 9, 2002