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Definitions
1. What are the definitions of "obscenity" and "indecency"?
According to the Control of Obscene and Indecent Articles Ordinance (COIAO), "a thing is obscene if by reason of obscenity it is not suitable to be published to any person; and a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile". "Obscenity" and "indecency" include "violence, depravity and repulsiveness".
2. What are the definitions of "publish" and "public"?
According to the COIAO, a person publishes an article if he, whether or not for gain -
a) distributes, circulates, sells, hires, gives or lends the article to the public or a section of the public;
b) in the case of an article consisting of or containing material to be looked at, or that is a sound recording or a film, video-tape, disc or other record of a picture or pictures, shows, plays or projects that article to or for the public or a section of the public.
According to the Interpretation and General Clauses Ordinance, "public" includes any class of the public. The definition of public is extended to include member of any club under the COIAO.
3. What articles are subject to regulation by the COIAO?
All articles within the definition of the COIAO are subject to regulation by the COIAO. Under the COIAO, an "article" means "any thing consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video-tape, disc or other record of a picture or pictures."
In general, articles encompassing newspapers, magazines, books, comic books, VCDs, DVDs, posters, computer games, electronically transmitted pictures and images, and Internet content are regulated by the COIAO.
4. Are films and television programmes subject to regulation by the COIAO?
No. Film is regulated by the Film Censorship Ordinance (FCO). Television programmes are regulated by the Broadcasting Ordinance and the Broadcasting Authority Ordinance through the Broadcasting Authority.
5. I notice that some newspapers and magazines play up excessive violence, but without pornographic content. Do such newspapers and magazines contravene the COIAO?
"Obscenity" and "indecency" include "violence, depravity and repulsiveness" under the COIAO. As such, articles with excessive violence, even in the absence of pornographic content, may contravene the COIAO.
6. I notice that some newspapers and magazines mislead readers
with untrue reports. Do such newspapers and magazines
contravene the COIAO?
No. The truthfulness of newspaper and magazine report is not regulated by the COIAO.
Classification System
7. May Class II (Indecent) articles be legally sold in Hong Kong?
Yes but subject to certain conditions –
a) Must be sealed in a wrapper with a statutory warning notice displayed on both the front and back covers;
b) If either the front cover or the back cover of the article is indecent, it must be sealed in an opaque wrapper;
c) No indecent article shall be published to a person under the age of 18 years;
d) The name, the full address of place of business and the telephone number of the publisher shall be clearly and conspicuously printed.
8. May Class III (Obscene) articles be legally sold in Hong Kong?
No. The COIAO stipulates that no one shall publish, possess for the purpose of publication or import for the purpose of publication any obscene article.
9. I was told that Class III articles are restricted to persons aged 18
or above. Really?
It may be a misunderstanding. Some public may be confused with the article classification system under the COIAO and the film classification system under the FCO. Under the FCO, films classified as Category III are restricted to persons aged 18 or above. On the other hand, under the COIAO, articles classified as Class III are obscene in nature and shall not be published.
10. Will articles with science, literature or art values, but containing
some pornography content, be classified as Class II (indecent)
articles?
According to the COIAO, when a publisher faces a charge, it is a defense if an article is found by the Obscene Articles Tribunal (OAT) to have been intended for the public good on the ground that such publication or display was in the interests of science, literature, art or learning, or any other object of general concern. Notwithstanding the above, the classification of an article shall be determined by the OAT in accordance with the standards of morality, decency and propriety generally accepted by the community and other factors (see question 12 below).
Adjudication System
11. Who is responsible for classifying articles? The Television and
Entertainment Licensing Authority (TELA) or the OAT?
The OAT is responsible for classifying articles. The TELA is responsible for monitoring and inspecting articles on sales in Hong Kong and submitting to the OAT articles suspected to be in contravention of the COIAO.
12. What are the dual functions currently performed by the OAT?
What are the differences between administrative function and
judicial function?
The existing OAT performs both administrative function and judicial function. It is an administrative function for the OAT to perform its statutory duty to make an interim classification and, upon appeal, a final classification on a submitted article. In performing such classification duty, the OAT does not possess the power and authority of a court. The OAT is also required to perform a judicial function. Upon referral by a court or a magistrate arising from a civil or criminal proceeding, the OAT determines whether an article is obscene or indecent. The OAT does so as a court, possessing the powers and authority of a court.
13. What are the criteria for classifying articles?
According to the COIAO, in determining whether an article is obscene or indecent, the OAT shall have regard to:
a) Standards of morality, decency and propriety that are generally accepted by reasonable members of the community;
b) The dominant effect of an article or of matter as a whole;
c) The persons or class of persons, or age groups of persons, to or amongst whom the article is, or is intended or is likely to be, published;
d) In the case of matter publicly displayed, the location where the matter is or is to be publicly displayed and the persons or class of persons, or age groups of persons likely to view such matter; and
e) Whether the article or matter has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it.
14. Who may submit articles to the classifying authority?
Such parties as authors, printers, manufacturers, publishers, importers, distributors, copyright owners or any person who commissions the design, production or publication of the articles concerned may submit articles to the OAT for classification, as may the Secretary for Justice or any authorized public officer (i.e., authorized staff of the TELA, the Hong Kong Police Force and the Customs and Excise Department).
15. What is the caseload of enforcement actions taken by the three
enforcement agencies, i.e. TELA, Police and C&ED?
In the past three years, the three enforcement agencies instituted a total of 1,876 prosecutions, with 1,829 convictions secured.
16. What is the caseload of referrals from enforcement departments to
the OAT and the referrals from the court for determination under
section 29 of the COIAO?
In 2006 and 2007, a total of 716 referrals were made by enforcement departments to the OAT, whereas 23 referrals were made by the court to the OAT for determination under section 29 of the COIAO.
17. How long does it take to obtain a classification from the OAT?
Upon receipt of a submitted article, the Tribunal will conduct a first hearing in private and give an interim classification within five days. Requests for review of classification may be lodged within five days. If the interim ruling is not disputed, it will be confirmed as the final classification. As for cases in respect of which the OAT holds a public full hearing on the classification, the average processing time is approximately 1 to 2 months.
18. Is the decision of the OAT in respect of the classification of an
article final?
OAT’s interim classification will be final if there is no request for a full hearing. Otherwise, the result of the full hearing will be final. However, under section 29(2) of the COIAO, where in any court proceedings any question arises regarding whether an article is obscene or indecent, the court/magistrate concerned shall refer the question to OAT for a determination. This judicial procedure is applicable regardless of whether a classification of the article concerned has been sought from the OAT prior to the judicial procedures.
19. How do the Police handle borderline cases now?
In case of doubt as to whether an article falls under the classification of obscene or indecent, the Police will take the initiative to consult TELA or send the article to the OAT for classification in accordance with section 13(2) of the COIAO before laying charges relating to obscene and indecent articles.
20. May I learn the reasons behind a classification decision?
Interim classification of articles is conducted by the OAT in private and thus the public may not know the process. However, when the OAT hears reconsideration or handles full hearing or proceedings referred by courts or magistrates, hearing is conducted in public. The public may thus know the process including the reasons.
21. Are the OAT adjudicators drawn from the list of jurors?
No. Interested persons may apply to become adjudicators. Successful applicants are then appointed by the Chief Justice.
22. May I apply to become an OAT adjudicator?
A person ordinarily resides in Hong Kong and has so resided for at least 7 years, and is proficient in written English or written Chinese, is eligible to apply to Judiciary to become an OAT adjudicator. Please visit the webpage "Judiciary Recruits Members of the Panel of Adjudicators of Obscene Articles Tribunals" (http://www.cedb.gov.hk/ctb/eng/film/oat.htm) for details.
Enforcement and Penalties
23. Since the TELA, the C&ED and the Hong Kong Police Force are
enforcement agencies of the COIAO, with which department shall
I lodge complaint against contravention of the COIAO?
Members of the public are encouraged to report matters of obscenity and indecency to TELA direct. Cases where life and/or property is under threat may also be reported to the Police.
24. How does the current division of labour between TELA and the
Police work? Any implications if enforcement for both indecent
and obscene articles is taken up by either TELA or the Police?
Under our present division of work, the TELA generally handles cases involving indecent articles, whilst the Hong Kong Police Force handles cases involving obscene articles. They will make referral to each other for follow up if necessary.
The difficulties with TELA taking up enforcement action are set out in paras. 2.4 under section A2 of Chapter 5(Enforcement). As for the Police, given limited resources and competing enforcement priorities, suppressing obscenity is low in the Police’s enforcement priority list. And in any case, the Police’s limited resources will be better used in combating serious crimes. As such, there may be a case for the Police to focus on tackling more serious crimes, with a clearer delineation of enforcement responsibility for TELA to deal with indecent and obscene articles. That being the case, if there were cases of publication or Internet dissemination of obscene / indecent articles that may involve organized crimes or triad activities, the Police will assist and take over the investigation and enforcement function.
25. Is the arrangement of having multiple law enforcement
departments for the enforcement of a single Ordinance unique
to COIAO? And is it unique for TELA, as a civilian department,
to take up investigation and enforcement actions?
No. There are indeed other cases of more than one department enforcing a single Ordinance (for example, the Smoking (Public Health) Ordinance, the Dangerous Drugs Ordinance, and the Public Health and Municipal Services Ordinance). There are also some other civilian departments, e.g. Labour Department, Marine Department, Food and Environmental Hygiene Department, who are undertaking some enforcement duties already. The Police can provide assistance and support to TELA if required.
26. Obscene and indecent optical discs are usually offered for sale
at those notorious shopping arcades which are also the black
spots of pirated discs. Would C&ED take enforcement actions
on both cases?
Apart from tackling obscene and indecent articles at entry points, C&ED also tackles the problem in its day-to-day anti-piracy operations.
27. What are the maximum penalties on publishing Class II (Indecent)
articles not in accordance with the COIAO?
The maximum penalty is a fine of $400,000 and to imprisonment for 12 months on first conviction, and a fine of $800,000 and imprisonment for 12 months on a second or subsequent conviction.
28. What are the maximum penalties on publishing Class III (Obscene)
articles under any situation?
The maximum penalty is a fine of $1,000,000 and imprisonment for 3 years.
New Forms of Media
29. Is Internet content subject to regulation by the COIAO?
Generally, Internet content published in Hong Kong is regulated by the COIAO.
30. Are mobile content and online games subject to regulation by
the COIAO?
Generally, mobile content published in Hong Kong and online games are regulated by the COIAO.
31. Are multiple-target communications among netizens considered
as "public communications" and hence are regulated under the
COIAO?
Under the COIAO, the publication of obscene articles, or indecent articles not in accordance with statutory provisions such as carrying warning notice and being wrapped, is not allowed. Publishing an article includes, among others, distribution of an article to the public or a section of the public, and hence is regulated under the COIAO. In view of the community's concerns about the applicability of the COIAO to new forms of public communications, particularly those on the Internet, the definition of "public" is discussed in Chapter 4 (New Forms of Media) in the consultation booklet. We welcome views from the public.
32. Can I shed responsibility if I distribute obscene content on
the Internet with false name?
The crux is whether you have contravened any provisions in the COIAO. Your identity used in the Internet environment is immaterial.
33. What is the Police’s current role in combating crimes on
the Internet?
The Police’s primary focus is to combat serious computer crimes such as identity theft, e-commerce fraud, Phishing scams, online child pornography, hacking incidents, and prevention and detection of cyber attacks against major information systems. The Police also take enforcement action against cases of online publication of obscene articles, particularly when they involve organized crimes or triad activities. If TELA can take up enforcement for both indecent and obscene articles, then the Police better focus resources to tackle more serious crimes.
Publicity and Public Education
34. I noticed my child browsed objectionable content on the Internet
stealthily. What shall I do?
You may install filtering software in a bid to filter out websites not suitable for children and young people. That apart, parental guidance is also an effective means to protect young people from objectionable materials on the Internet. Parents may spend time with their children on surfing the Internet. If children are allowed to browse the Internet by themselves, parents are advised to pay close attention to the content of the web pages to which they are exposed, and encourage them to discuss with you if they find any offending material, particularly those with indecent or obscene content.
35. What is filtering software and what are the types of such software?
Filtering software filters out websites not suitable for children and young people by making comparison to an objectionable website list compiled by the software supplier and by analyzing content on a webpage. The principle is analogous to anti-virus software protecting computers against virus attacks.
Filtering software can be divided into home-use client-end filtering software and Internet Service Provider level filtering service.
Other Questions
36. Whom have you invited to your focus group meetings and public
discussion sessions on the
COIAO Review?
We have sent almost 200 letters to invite representatives of organizations to our focus group meetings. Our town hall meetings are open to all members of the public. To further publicise the town hall meetings, we have issued over 1000 invitations to various organisations. The invitation lists have been uploaded to the "Reference Materials and Press Release" section.
37. How do the western countries regulate obscene and indecent
articles, particularly on online pornography?
Please refer to the "Reference Materials and Press Release" section of this website for a summary on the regulatory practices of Australia, New Zealand, UK, Germany, US, Canada and France.
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