Thursday, May 10, 2007

An "obscene" hyperlink?

I am deeply concerned about this court ruling today that someone posting a hyperlink to some porn pictures in some local forum was judged by the court to be guilty under COIAO (Control of Obscene and Indecent Articles Ordinance) and sentenced to $5000 fine. This is a first case in Hong Kong established against the posting of a hyperlink.

I have a lot of questions about the case that really trouble me:

- The Judge seemed to have ruled that the defendent distributed an obscene article, so how was
the hyperlink deemed to be “article” that is obscene under COIAO?

These pictures were deemed to be "obsecene" but just "normal porn pictures" and not clearly illegal materials like child porn. And if so, maybe it was just that the accused did not distribute the articles without proper warning message (similar to plastic wrapping on magazines)?

In this case, are the pictures hosted in Hong Kong or elsewhere? Most likely they are posted outside HK, because if they are in Hong Kong, the actual website hosting those pictures should be prosecuted too, right?

Why is the forum owner not prosecuted, just the user?

I think it is uncalled for for law enforecement to bring the case to court. Apparently someone made a complaint to TELA. But they are probably definitely many more serious (worse) pictures being posted on forums, and why did the Police only prosecute this case? The fact that the law enforcement in Hong Kong seldom likes to use education first, but always want to test the limit of the court by bringing nitty gritty cases to test, this practice worries me a lot and I think it is unfair to the users because they are not warned ahead of the dangers (you can’t just say, “you are posting dirty pictures so you deserve it”), and to the providers it is troublesome too. I clearly remember years ago as the Chairman of the ISP Association, TELA told me that they can’t do anything about those hyperlinks even if the content behind them are child porn. When did that change!?

If hyperlinks are articles that can constitute as “articles” in COIAO, will it be a precedent case that others can prosecute people posting hyperlink for many other “crimes” in civil or criminal courts for all kinds of things, even subversion or libel? It is not right I think to judge hyperlink this way, because the link points to some place not controlled by this user making use of the hyperlink, and the content behind the hyperlink can change.

This will also have dire implications to search engines or even other web hosting companies or ISPs. Does the Hong Kong government want them to carry out self-censorship from now on, on even hyperlinks? Search engine companies may be the first to get into troubles. This has serious negative consequences for Hong Kong's IT infrastructure (which includes our legal infrastructure) and the reputation of having freedom of information. Should Google and Yahoo! get out of Hong Kong?

In the end, is the Police or the Hong Kong Government trying to turn Hong Kong into a cleansed society like not just Singapore but Saudi Arabia? How are they convinced that there is such serious problem with porn on the Internet that there ought to be a crackdown?

I urge the defendent to appeal the case. If the COIAO can be applied to even a hyperlink, I believe legislators should call for an immediate review of this ordinance to amend it and cut it down to size.


At 9:21 AM, Blogger Unknown said...

I am unfamiliar with Hong Kong law. Since the defendant pleaded guilty, can he still appeal?

You raised a good point about the content of a hyperlink being changed. One extreme example: John posted a link to a HK government site on his blog, only to find that the government site was hacked one day and replaced with pornography. In that case, did John break the law?

It is too bad that judges do not answer to regular citizens and are not involved in public discussion.

At 5:36 PM, Blogger Charles Mok said...

Indeed, I don't know if someone can appeal after he confessed and admitted to a crime in court.

Well, judges probably should not answer to regular citizens or be involved in public discussion, or else the judiciary branch would not be independent.

But if we feel the judges are not ruling properly, that means there are problems with the laws or their interpretation, then the executive and legislative branches should act to CHANGE the laws.

Also, I think at the present moment, and in these cases, part of the blame should go to the lawyers who are not familiar or caring enough with issues related to online liberty, and they are not taking up the issues to fight.

Many people I have discussed with have said that we need some bodies like EFF (Electronic Frontier Foundation, see which fights for civil liberty in the digital world. We have so tradition for such social movement through legal means in Hong Kong or China. But to do this, we need a lot of money/donations to start with!



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