Information

The Proposal of the Hong Kong Press Council on the Control of Obscene and Indecent Articles Ordinance

The Hong Kong Press Council (“the Council”) welcomes the decision of the Hong Kong Government to launch public consultation over the review of the Control of Obscene and Indecent Articles Ordinance (“the Ordinance”). As a matter of fact, the Ordinance has not been reviewed for over 10 years. Meanwhile, the values of the society over obscenity and indecency have changed from time to time. The Council suggests regular review should be conducted through appropriate mechanism. This is to ensure the Ordinance will fully reflect moral standards of the society while not being used to curb freedom of the press and freedom of expression, or to suppress the development of cultural industries. All reviews should be conducted in an open manner to allow public discussion. In order to assess moral standards of the society objectively, the Government should commission academic institutions to conduct periodic evaluation.

Definition of Obscenity and Indecency

The Council considers the definition of obscenity and indecency should be divided into conceptual definition and operational definition. Regarding the conceptual definition, the Council reckons the relevant guidelines should be listed out to enhance clarity. The term “Obscenity” should be referred mainly to the improper use of sex, horror, cruelty and violence, including the indignities caused by child pornography and bestiality, or inhumane improper descriptions.

Many disputes arisen in the past can be attributed to mechanical application of the operational definition. The Council proposes that the guidelines of adjudication should be strengthened. When adjudicating cases, adjudicators should not only apply operational definition. They should also put the case in wider context and consider as a whole whether the objective as indicated is reasonable. Furthermore, the adjudicating authorities should review previous cases that caused a controversy in order to identify the problems involved and transform various adjudicating principles into guidelines.

Defence

Since the Ordinance hinges upon freedom of expression, the Council suggests widening the scope of defence under the existing law to avoid unnecessary concerns about the encroachment on freedoms in the society. The major premise of defence shall be whether public interest is served. In other words, the publisher of an article can defend his or her case on the ground of public interest, or in the interest of the dissemination and development of science, literature, art and academic learning.

Adjudicating system

The Honourable Chief Justice of the Court of Final Appeal, Mr. Justice Andrew Li, has suggested the executive and judicial functionality of the Obscene Article Tribunal (“the Tribunal”) should be separated. The work of adjudication should be made by jury. The Council holds the view the idea has its legal ground and should be further considered. With regard to the existing classification system, the Council considers that there are several areas for improvement as below.

Strengthening the stability and representativeness of adjudicators

In order to enhance the representativeness and objectivity of adjudicators, the Council recommends that the number of adjudicators of preliminary hearings should be increased from 1 magistrate and 2 adjudicators to 7 adjudicators or above. The background of adjudicators should be vastly expanded, similar to the background of jurors, to boost their representativeness. To maintain the consistency and steadiness of the standards of adjudication, the authorities should provide clearer guidelines on “obscenity” and ‘indecency’ for their reference.

Extending the time limit for launching review

Each year tens of thousands of articles are submitted to the Tribunal for adjudication. In view of that, the Council acknowledges that detailed explanation should not be required for initial classifications in preliminary hearings. If concerned individuals or organizations have expressed dissatisfaction with the preliminary classification and lodge an appeal, the Tribunal shall conduct a full hearing promptly. If the applicants ask for more time to prepare for their responses, the current 5-day time limit for serving the notice for review can be extended upon request.

Enhancing the transparency of hearings

Detailed reasoning shall be given in a full hearing to enhance transparency. Relevant precedents on classifications shall also be made available to others for reference so as to avoid situations where similar articles are classified differently.

Ensuring the adjudicating standard advances with time

The benchmarks for assessing obscenity and indecency in society can be established through research and other means. Those benchmarks should be reviewed regularly, followed closely and promptly publicised in the society. This will ensure the adjudicators keeps pace with times.

Internet control

The provision and usage of filtering software shall be decided by the Internet Service Providers and citizens themselves.

Other suggestions

The effective implementation of the Ordinance depends on the coordination among various sectors. Fundamental and long-term measures include:

1. Schools and families should strengthen sex and media education. Young people should be able to grow up in an open, healthy environment, to understand media better and be able to choose from among the media.

2. The Legislative Council should grant the Council immunity rights over libel cases that may arise when the Council handles certain cases. This will allow the Council to develop its role in promoting the professional standards of media.

( This is a translated version only. For official document, please refer to the Chinese version. )