A Conversation With A TELA Bureaucrat
The following is the translation of a Chinese-language essay at InMediaHK.
The Bureaucrats Who Run Counter To Daily Experience/Moral Judgment. By Oiwan Lam. May 28.
This morning, I received first a telephone call from the company that hosts the web server for InMediaHK. They told me that a certain photograph on the website had been placed under warning by the Television and Entertainment Licensing Authority, which has recommended that either we remove the photograph or add a pop-up warning message. Subsequently, I received a telephone call from Mister Kong of the Television and Entertainment Licensing Authority. Since I was attending class at that moment, I could not return the call until 2:30pm to find out what was happening.
I thought that Mister Kong knew that I was the author of the essay, but it turned out that the web hosting service gave my information as the InMediaHK contact. During our conversation, I spoke as an editor of InMediaHK and I did not volunteer to inform him that I was the author of the essay at issue. Here are the contents of our conversation.
Kong: The Television and Entertainment Licensing Authority has received a complaint concerning the nude photograph included in the essay <The beginning of the political censorship campaign; the call for posting erotic hyperlinks together> at InMediaHK.
Lam: How many complaints did the Television and Entertainment Licensing Authority receive?
Kong: One case.
Lam: I know that in that essay, there was one nude photograph as well as many erotic hyperlinks. Are those hyperlinks included in the complaint? [Note: The essay called for people to provide hyperlinks to erotic web pages and many people responded.]
Kong: The complaint was about the photograph alone, with nothing about the text.. We recommend that the web hosting service or InMediaHK either remove the photograph or else add some warning message before users enter the page (note: such as a pop-up warning).
Lam: Is this a warning or some other procedure?
Kong: This is an advice.
Lam: If the author or the editors decide not to remove the photograph and not to set up a warning message, will the article be forwarded to the Obscene Articles Tribunal?
Kong: Not necessarily. The Television and Entertainment Licensing Authority has a limited staff and there are some technical investigative issues. This case may be forwarded directly to the police for handling.
Lam: But the photograph has not yet been classified. It can be an art photograph.
Kong: If it is sent to the Obscene Articles Tribunal, the penalty can be very severe. This is an already published indecent article, which should have been sent to the Obscene Articles Tribunal for classification before publication.
Lam: I need to explain this to the editors, the author and the readers. Can I say that if we do not follow this advice, there are two possible outcomes: one outcome would be for the case to be forwarded to the police for handling and the other outcome would be to go before the Obscene Articles Tribunal?
Kong: You can say that.
Lam: If the case is prosecuted, who would be the target? The web hosting service? InMediaHK? Or the author?
Kong: According to the reasoning, all three parties are liable. The web hosting service and the website should consider the possible consequences that they might face.
Lam: Actually this has nothing to do with the web hosting service. They merely provide the space. Of course, the InMediaHK editors need to confer. I have another question. The comments to that essay contain a large number of hyperlinks to erotic websites. How might they be handled? Will the Uwant case occur again? I hope that I can tell the commentators what they are potentially facing.
Kong: That is still undecided, but this matter has been referred to certain persons in the legal area to study. Some of those hyperlinks might have crossed the boundary in indecency/obscenity and may be referred to the police for handling. When that comes, there won't be any advice. But we are still seeking legal advice. Can you people decide within a couple of days?
Lam: I will have to discuss with the editors, the author, the commentators and the readers before a decision can be reached. You know how to reach me.
Kong: I will call you again tomorrow.
In the afternoon, Mister Kong called me to give more information about the rules for Internet service providers (see Link).
In the following, I will respond to the advice from the Television and Entertainment Licensing Authority in my role as the author of the essay. The decision for InMediaHK will be made by the editorial board collectively.
(Source: Nude and Captured, by joerror @ flickr)
This photograph was displayed at the InMediaHK website from flickr through the 'photo sharing' hyperlinking method. At the time, I used 'nude' as the keyword and went through the 'Advance search' option at flickr to find 'public photos' distributed under the 'creative commons' license. According to flickr policy, they will follow up on readers' complaints and remove any content that violates its guidelines. Here are their guidelines with respect to indecent material:
Donít forget the children.
Take the opportunity to filter your content responsibly. If you would hesitate to show your photos to a child, your mum, or Uncle Bob, that means it needs to be filtered. So, ask yourself that question as you upload your photos and moderate accordingly. If you donít, itís likely that one of two things will happen. Your account will be reviewed then either moderated or terminated by Flickr staff.
I particularly like these guidelines. They will not mechanically define displaying the vital parts as indecent or obscene. Instead, they deal with this in a plain "don't do unto others what you would not want done unto yourself" manner. Using the above guidelines, I would not hesitate to show the photo to my five-year-old nephew or 70-something-year-old mother. Furthermore, the photograph that I used was first posted in February 2006 and has been viewed more than 7,000 times in over one year. Nobody seems to have a problem with it. In the flickr ratings, twelve people even rated it as their 'favorite.' In the comments, there are two items about techniques in photography:
Nice effect with the leaves.
These are great, but too dark! I suggest mucking around with curves in photoshop.
In the guidelines of the largest photograph storage/sharing company flickr in the world, this photograph is regarded as acceptable and it is quite prominent in terms of search results. But the Hong Kong authorities have defined it as indecent. Where should we define the boundary for netizen and public acceptance? According to the requirements of certain complainants, local Internet service providers/users may not use photo sharing or hyperlinking to carry photographs/contents on international websites. Who will use local Internet Service Providers in that case? Frankly, if this case precedent is ever set, I would recommend InMediaHK to use an overseas web hosting service instead.
This photograph was brought over by a piece of Photo Source html code. Like a hyperlink, this is a bridge that brings in the photographic content from another website into this article. The web page corresponding to this article only has a certain piece of code and the photograph itself does not reside on the web hosting service or InMediaHK storage space.
According to information from a friendly reporter about the earlier Uwant hyperlinks case (note: a 47-year-old Hong Kong man was fined HK$5,000 for posting 8 hyperlinks at the Uwant discussion forum linking to indecent photographs hosted on overseas websites), a similar piece of html code had brought the overseas images into the Uwant discussion group. Therefore, this particular case is a repeat of the aforementioned Uwant situation.
Mister Kong reminded me that since the photograph has already been published, the penalty could be severe if it is referred to the Obscene Articles Tribunal or the Hong Kong Police Force, including the possibility of imprisonment. If we had any doubt, we should have sent the photograph for classification before publication. Mister Kong's points were probably made with good intentions, but they can only be described as calamitous with respect to how the Internet runs. Any city in the world that encourages the development of the Internet would never want pre-censorship. Even in places like Singapore and Malaysia which do not have full freedom of press, Internet contents are reviewed post facto and not beforehand. This is because the special characteristics of Internet publishing are the leadership, dissemination and instant publishing made by the users themselves.
According to Mister Kong, the text of the essay and the erotic hyperlinks in the comments have been referred to the Legal Department for study (probably someone inside the Department of Justice). If the Legal Department believes that a prosecution is feasible, the case will be handed over directly to the Hong Kong Police Force. Therefore anyone who has pasted hyperlinks in the comments section should remove their hyperlinks forthwith if they are not psychologically prepared to stand up to the actions of the judicial and law enforcement agencies.
Morality is the relationship that arises from daily practice. The experience and interaction on the Internet hae slowly given rise to some kind of system of culture and ethics based upon principles such as:
Discussions shall not contain any discrimination based upon race, gender, sexual preference, etc;
When you use other people's contents, you should provide a link;
"Don't do unto others what you don't want them to do unto you";
Oppose certain organized and programmed spam mail used for malevolent destruction or commercial advertising; etc.
Such is the accumulated wisdom from the interactions on the Internet that is now the consensus in this global multicultural culture.
However, the Hong Kong government investigations and moral authority are anti-intellectual and anti-experiential. At a time when the Internet is becoming more and more open and information is traversing freely across borders, our bureaucrats are becoming more and more morally ossified instead. If they so much as see a pair of nipples, they will say that it is indecent! Which children (and those children must be pitiful) have not bathed with their mothers? Which children have not sucked on nipples or seen breasts? The bureaucratic morality that defied experience and wisdom can only push Hong Kong further and further away from the international community. Instead, our society will become ever ever more superficial, hypocritical and crazy.
In the precedent set in the Uwant case, the Television and Entertainment Licensing Authority notified the Internet Service Provider and then turned the case over to the Hong Kong Police Force. The police looked up the information of the author and then arrested him at home. In order not to waste police time, let me state that my real name is Oiwan Lam, I access the Internet from somewhere in the Yuen Long district (you can just call me and ask, and the Television and Entertainment Licensing Authority has my contact information). Please do not come at the wrong time and disturb my mother who has high blood-pressure.
I have requested a meeting of the InMediaHK editors at 4pm to discuss the situation. So far, none of the editors has suggested taking the photograph down. I have also notified the website registrant Chow Sze-chung (you can find the information about him in the corporate registration records). But according to the Uwant precedent, since the photograph is not physically present on the web server, the author alone will be held responsible.