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Following is a question by the Hon Sin Chung-kai and a written reply by the Secretary for Security, Mr Ambrose S K Lee (in the absence of the Secretary for Commerce, Industry and Technology), in the Legislative Council today (June 20):
Question:
Recently, a member of the public was convicted of publishing obscene articles because he had posted on an Internet forum a hyperlink to connect to an overseas web site with pornographic photographs. In this connection, will the Government inform this Council:
(a) given that people posting hyperlinks on the Internet usually have no control over the contents of the hyperlinked web pages, and they may not be informed of alterations to such contents, whether it has assessed the liability to be borne by a person for posting a hyperlink to connect to a web site which did not contain obscene contents when he posted the hyperlink but such contents were uploaded onto the web site subsequently by others; if it has, of the assessment results;
(b) whether it has assessed the liability of Internet search-engine service providers in respect of providing on their web sites hyperlinks connecting web sites with obscene contents; of the criteria for determining the subject of prosecution; if it has, of the assessment results; and
(c) whether it will issue guidelines to the information technology industry, including companies and web sites providing Internet search engine service, to remind them of the matters to which they should pay attention and the actions they should take, so as to avoid infringing the law unknowingly by having, on their web sites, hyperlinks connecting other web sites with obscene contents; if it will, of the details; if not, the reasons for that?
Reply:
Madam President,
My reply to the above question is as follows:
(a) A hyperlink is a reference or navigation element in a document on the Internet to another section of the same document, another document, or a specified section of another document, that automatically brings the referred information to the user when the navigation element is selected by the user. As such it is similar to a citation in literature, but with the distinction of automatic instant access.
It is true that generally a person does not have control over a linked site. If the contents of a linked site were changed without the person who posted the link knowing of the change, then that person would not be liable.
In particular cases, whether or not that person would be liable for posting the link and would be prosecuted would depend upon the evidence gathered which would indicate the knowledge of the person to the alteration in the contents at the linked site. The prosecution in making a decision to prosecute would follow the published prosecution policy guidelines (available on the website of the Department of Justice at www.doj.gov.hk).
(b) Generally, Internet search engine providers merely provide a tool for Internet users to search for information. They have no knowledge of the contents of a particular site. Nevertheless, if website hosts have knowledge that their website is linked to a pornographic article, they may be liable as an aider and abettor in publishing an obscene article. Whether or not they would be liable would depend upon the evidence available to indicate their knowledge of the link to the obscene site. The same prosecution policy guidelines apply in deciding whether to prosecute.
(c) After consulting the public and the industry, the Television and Entertainment Licensing Authority (TELA) and the Hong Kong Internet Service Provide Association (HKISPA) jointly promulgated a self-regulatory code of practice in October 1997, providing guidelines for Internet service providers. The code of practice sets out the procedures Internet service providers should follow and the actions they should take to handle indecent and obscene contents on the Internet. Such actions include requiring website hosts and information distributors on the Internet should post warning notice for distributing indecent contents and remove obscene contents; blocking access to those websites or databases in breach of the Control of Indecent and Obscene Articles Ordinance (COIAO); canceling the Internet accounts of those persons in breach of the COIAO; and referring complaints to TELA for follow-up, etc. The code of practice is available on the website of the HKISPA at www.hkispa.org.hk/COP.htm.
Ends/Wednesday, June 20, 2007
Issued at HKT 17:46
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