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Following is a speech (English only) by the Secretary for Commerce, Industry and Technology, Mr Joseph WP Wong, at a luncheon at the Foreign Correspondents' Club today (July 10):
Thank you for the lunch, I hope what I am about to say will pay for my lunch. Talking about the Internet from the perspective of a government official or Minister responsible for, among other things, technology, communications, intellectual property rights and broadcasting is a very challenging task. This is because if I am not careful, I may say things which are confusing or controversial or downright incomprehensible. There is also the constraint of time. I always speak on the assumption that the span of attention of an audience after a full meal is about 15 minutes, probably less if the speaker is an unattractive middle-aged man.
I have carefully worded the title of my speech which reads "Regulating Activities on the Internet – a Case for Limited Government Intervention" so that at least you know the main focus of my delivery and I hope words like "regulating" or "government intervention" have a wakening effect on free-minded journalists.
Let me begin by posing the question: what does a government regulate on the Internet? One obvious answer is that any government has a duty to combat crime and if a crime takes place on the Internet, the government takes enforcement action as well.
We amend laws to close any loopholes if the pre-Internet version of the relevant legislation is deficient. For heinous crimes, which can take advantage of the convenience and accessibility on the Internet, we even expand the ambit of the offence. For example, our Child Pornography Ordinance makes it an offence for any person to possess any child pornography, which includes computer-generated pictures from the Internet. This is different from the legislation on obscene and indecent materials. The Control of Obscene and Indecent Publications Ordinance does not criminalise the downloading of obscene pictures from the Internet. This difference in government intervention reflects the community's value judgement that consumers of child pornographic materials should not be given the normal protection of private property rights.
If one moves beyond indisputable serious crimes to illegal activities where the damage to or suffering of the victims are less direct or obvious, or where some of the victims are otherwise wealthy people or powerful firms or organisations, the case for government regulation is less clear cut. Protection of intellectual property rights on the Internet is a case in point.
We need to protect our creative industries such as movies, music, software whose copyright works are prone to piracy and unauthorised distribution on the Internet. So there is no dispute to make these acts a criminal offence.
But what about unauthorised downloading of copyright works? If it is a crime to shoplift in a supermarket, logic follows that it should also be crime to illegally download from the Internet. But the latter offence is not in our existing statute book, nor have we proposed its inclusion in our Copyright (Amendment) Bill, which is presently undergoing careful scrutiny in our Legislative Council and attracting numerous representations from different and in some cases opposite directions.
Our music industry takes civil action against those unauthorised non-paying consumers. And the government supports their action. But some in the industry argue for criminal sanctions. This is where I am not sure how far the government should go. Will our community accept a case for imposing criminal prohibitions on this group of Internet users who are mostly in their teens? Will our citizens who steadfastly guard their private property rights, and rightly so, allow the government to intrude into their homes in order to enforce this new offence?
Arguments on both sides should be articulated and debated thoroughly before the government takes a view. So we will do our homework, study policies and practices elsewhere, and issue a consultation paper before the end of this year on what options we may take to better protect copyright works on the Internet. Hopefully by then, we will have enacted the Copyright (Amendment) Bill which will have given copyright owners more protection against various forms of infringement or circumvention.
I now turn to activities on the Internet which to many or most people are unwelcome but which are not illegal at the moment. I refer to the anti-spam bill, which the government will introduce in the Legislative Council this Wednesday. The Unsolicited Electronic Messages Bill proposes to regulate all forms of commercial electronic messages including e-mails. We recognise the cross-boundary nature of electronic messages. So the proposed legislation will cover e-mails originating from Hong Kong as well as those sent from overseas to a Hong Kong address.
In proposing to turn a nuisance into a criminal offence, we take particular care to respect individual choice and not to stifle e-marketing. So a person can decide not to receive these messages again through indicating their wish to the e-mail address of the sender, who will be obliged to provide it under the proposed bill.
We also propose to adopt an enforcement notice regime under which our Telecommunications Authority (TA) will issue an enforcement notice demanding that the contravention be rectified. If the person or organisation fails to comply with the enforcement notice, it becomes an offence punishable by a fine of up to $100,000 for the first offence. A recipient of an enforcement notice can appeal to an appeal board against the decision of the TA.
We propose to have much heavier punishment against those who deliberately facilitate a spamming operation through the supply, acquisition or use of electronic address harvesting software or harvested lists of electronic addresses without the consent of the addressees. These contraventions would not be subject to the enforcement notice regime, but will be prosecuted in court and subject to a fine of up to $1 million and imprisonment for up to five years.
I have set out the enforcement and penalty provisions of the anti-spam bill in some detail to underline the point that government intervention or regulation should be measured and proportionate to the seriousness of the illegal act.
Please also note that we only propose to regulate commercial messages. So to fully respect our right to freedom of speech which is enshrined in our Basic Law, we would not regulate non-commercial messages or e-mails of whatever shape or colour. So, it will be up to you to decide whether you follow the advice of unsolicited e-mails urging you to join a celebration procession or a protest march on a particular day. Whatever you do, please make no complaint to government!
Have I exhausted the possible scope of government intervention on the Internet? I am not sure. What about protection of privacy? How many of us know that we may be trading our closely kept secrets, including our likes and dislikes, our strongly held opinions or prejudices, our network of relatives or friends for the convenience and facilities we receive from various service providers on the Internet. Have we ever read the fine prints on the small screen of our computer when we agree to subscribe to a certain free service?
I am always amazed by the speed and coverage of Internet search engines. For example, it takes less than a second on Google to have a list of all the websites featuring FCC with this Foreign Correspondents' Club on page 4. No prize for the first entry which is the US Federal Communications Commission, possibly another useful source of information when I deliver another speech on communications which also falls within my portfolio!
George Orwell's Big Brother in "1984" may be found on the Internet whose power and influence is being increased everything by technological advances, entrepreneurs exploiting the vast potential of business opportunities and individuals who willingly upload our personal information and views every second of the day. Should something be done to better protect personal data on the Internet in some structured way? I have no answer at the moment but if something needs to be done, it should not fall entirely on the shoulders of government.
Another example of possible government intervention is the recent debate in the US on the question of charging for priority traffic on the Internet. On the one hand, network operators argue that since Internet content companies are providing enhanced services like phone calls, high quality audio and video streaming, the network is increasingly overloaded. They should be allowed to charge Internet content companies for delivering the enhanced services. For those Internet content companies who pay a higher fee, their traffic will be put on the express lane on the Internet. This follows the user-pay principle and will provide incentive for the network operators to invest in next generation networks. On the other hand, Internet content companies and network neutrality advocates suggest that the Internet is designed as an end-to-end communications infrastructure, meaning that the network treats all data equally. No matter it is a voluminous video file or an e-mail, they are delivered indiscriminately from one point to another through the shortest path available. Allowing network operators to control the traffic discriminately would mean that network operators are allowed to be content gatekeepers or controllers of distribution of content. Some even argue that it is tantamount to censorship.
So at the end of this debate, what position of the government should take and what will be the extent of government intervention?
Ladies and Gentlemen, I probably have said enough on this topic to earn my lunch and I would like to leave the unsaid on this or other areas of my rather diverse portfolio to the next occasion in exchange for another free lunch.
Thank you very much.
Ends/Monday, July 10, 2006
Issued at HKT 17:30
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