The Interview with Oiwan Lam
The background on the case is presented at A Conversation With A TELA Bureaucrat. In brief, Oiwan Lam published an essay at the InMediaHK website that included a linked photograph from Flickr for the purpose of discussing the state of censorship in Hong Kong. Oiwan Lam has just been informed that the essay was classified on a preliminary basis as "Category II: Indecent" by the Hong Kong Obscene Articles Tribunal. The maximum penalty is HK$400,000 and 12 months in jail.
The following is a translation of an interview with Oiwan Lam.
(InMediaHK) The Obscene Articles Tribunal is harassing citizens -- an interview with Oiwan Lam. By Ip Iam-chong. July 1, 2007.
Q: Recently you published a photograph from Flickr and the government's Television and Entertainment Licensing Authority turned their attention on you. The photograph has been classified as "Category II: Indecent" material by the Obscene Articles Tribunal. Why did you post that photograph in the first place?
A: At first, I wrote an essay that called for citizens to post hyperlinks to pornographic website. This is because there was a case in which a citizen posted some pornographic hyperlinks and the police went to his home and arrested him. The citizen pleaded guilty and paid a fine. I thought that this was a very uncivilized act. A hyperlink is not pornography; it is just a bunch of computer programming codes. My essay was an attempt to challenge the Obscene Articles Tribunal because it ignored the new technology and culture and it lacked commonsense. When I selected that picture, it was not part of my original plan about the hyperlinks. I only wanted to have a photograph to accompany the essay. I wanted to highlight some of the problems with the censorious standards at the Obscene Articles Tribunal. When I chose this particular photograph, I deliberately went to flickr, because flickr is an extremely popular web service. I used the single search term 'nude' to find this particular photograph.
I believe that nudity is not identical to indecency. The human body is not indecent in itself. From the various nude photographs, I use this one because I felt that this is a female nude that a photographer filmed with considerable design through the use of lighting and photographic techniques. I did not personally feel that this photograph was indecent. But I know that the Obscene Articles Tribunal uses the quantitative method of counting the number of exposed vital parts to make their classificaiton. My guess was that the current bureacratic procedure would deem this photograph to be indecent. That was why I chose this photograph.
Q. The Television and Entertainment Licensing Authority responded quickly. What do you think of their attitude? What are your feelings?
A: Actually, the Television and Entertainment Licensing Authority called about one week after the photograph/essay appeared. They gave me an advice and asked me to remove the photograph because it may be indecent. At the time, my thought was that the Obscene Articles Tribunal had not yet made a judgment and the Television and Entertainment Licensing Authority was just an administrative department. I asked that worker why TELA took action immediately after receiving one and only one complaint. As an adminstrative department, they should have followed through with the complaint and make some basic observations to decide whether the complaint was valid; if so, they could follow through. Previously, the movie <Autumn's Tale> was forwarded for classifcation after TELA received two complaints and the result was that shown on television repeatedly for ten years already. But with two complaints, censorship was immediately put into place. As for my photograph, a single complaint triggered an action. I felt that this tremendous expenditure of resources only resulted in harassing citizens.
Q: Do you know why it took so long to come up a Category II classification? It seemed to have taken several weeks.
It was almost a month. Some friends, especially those from the gay/lesbian community, called to ask me about the progress. Ordinarily, action is taken one or two weeks after the advice is issued. This time, it took one month. TELA called me first on May 28th with its advice. TELA called me again at the end of June about the preliminary classification. It was exactly one month.
At first, I thought that not being called by him was a good thing, because he might be thinking that the complaint was unreasonable. But it is obvious now that he must have gotten some legal advice and then something else happened in the meantime. Flickr had a new localized policy: from mid-June, the policy was directed specifically at the users in four regions such that the users from those regions will not see some of the photographs. These four regions are Germany, Singapore, South Korea and Hong Kong. This policy went into effect in mid-June. TELA referred my photograph to the Obscene Articles Tribunal on June 22nd. The Obscene Articles Tribunal determined within one week (that is, on June 28th) that the photograph was Category II: Indecent. This was some kind of concidence -- Flickr changed its policy and then the Obscene Articles Tribune received my photograph for classification purposes.
Q: Now that the Obscene Articles Tribunal has classified this photograph as Category II: Indecent, what are your feelings?
A: Since I posted that photograph, I expected that the Obscene Articles Tribunal would only look for the two vital parts and conclude that the photograph was indecent. I am conflicted inside. On one hand, I was hoping that they would not classify it as indecent based upon commonsense. As an organization, they ought to have some commonsense. As a citizen of Hong Kong, I hope that the Obscene Articles Tribunal of the government should have some commonsense. But on the other hand, I feel that this case was absurd. I thought that this case can be used to challenge the censorship system, including all the people inside this system. Last year, the Audit Department has said that 89% of the Obscene Articles Tribunal are over 40 years old. But the publications that they are scrutinising are intended for young people; the Internet contents are designed for young users. So why is everything being scrutinized by people over 40 years old with special backgrounds? Why can't the users decide for themselves?
Q: Why do you intend to do next?
A: This was a preliminary judgment and there is still five days for a review. I will ask for a review. I have consulted with a lawyer who told me that if the same result is upheld after the review, the police will take over the case to determine the responsible party (i.e. myself or the website) and then follow through.
Q: Are you worried?
A: Actually, I am not worried. I am psychologically prepared to spend time to deal with this matter and to raise money. If the review is still unfavorable, I will appeal. In the 1995 case of the statue of David, the decision was overturned only when the case reached the High Court. The statue of David is a popularly received work of art and it even had to go to the High Court. I need to be psychologically prepared that I will have to spend a lot of time if this makes it to the High Court.
Q: What are you calling for the citizens to do?
A: The citizens should care about this case. More generally, they should care about the Hong Kong system for determining indecency/obscenity. As a cosmopolitan city, we need to have easy circulation and diversity in our information and culture. The citizens should also actively try to reform the system of censorship of obscene/indecent materials. For example, the rules should not be so rigid. One needs to look at the contents of the publication, or factor in the genre, or consider whether it is a work of art, or decide if it is just peddling pornography. In the case of the <Chinese University Student Press>, the case was based upon a survey questionnaire and a discussion essay. Maybe some people think that while the essay was poorly written, the newspaper was not peddling pornography. During the process of examination, it is necessary to separate the discussions from the selling of pornography. When making the decision, it is necessary to look at the background of the materials and determine the reason why these things are being published. Presently, the Obscene Articles Tribunal does not care about the context at all.
Q: If you are going to embroiled in a lawsuit, are you worried about the financial impact on yourself?
A: Yes. I am presently a freelancer. Therefore, Hong Kong really needs an organization like the Electronic Frontier Foundation in the United States. That organization supports individuals to oppose unreasonable censorship. We can see that many things -- from copyright issues to adjudication of obscene materials -- are being directed against individuals. For example, some of the Internet cases were directed against individual netizens. As an individual who has to face up to this monstrous judicial system, many people will accept defeat and pay a few thousand dollars in fines because there was no point in making a big case out of it. Therefore, Hong Kong needs to have a foundation to support these individuals. Presently, some people are willing to pay the fines and therefore the law enforcement and judicial departments wind up with the sense that they are doing the right thing. When citizens accept this way, everything is rationalized. Actually, the citizens are being forced to accept. We need an organization or foundation to deal with these cases and offer supoortive work.
For example, I know that InMediahHK has recently established a Free Culture Foundation. You can all go there to donate money.