Hong Kong Media Law

The Journalism and Media Studies Centre has told the Hong Kong government that some of its proposed changes to the obscenity ordinance could pose additional dangers to freedom of expression and the operation of a free press in the SAR.

The JMSC’s comments came in a position paper presented to the government on January 31.  The paper was sent as part of the government’s consultation on its review of the Control of Obscenity and Indecency Articles Ordinance (COIAO).

The paper describes how Hong Kong’s existing obscenity ordinance has troubled newsrooms since its enactment in 1987.  It says the ordinance continues to operate as an unnecessarily complicated regime, and is coupled with a problematic Obscene Articles Tribunal (OAT), which acts to enforce the law in a non-transparent, unaccountable and inconsistent manner.

Media complaints about the ordinance have been vindicated in court challenges over the years, including a case in 2008 involving Ming Pao newspaper and the Chinese University Student Press.  In that case, a court overturned an indecency classification for articles about a student sex survey.  In its ruling, the court criticized the tribunal for its lax and imprecise approach, declaring there was “no room for arbitrariness or slackness.”

The JMSC paper says neither these court rulings nor the current government consultation has closely examined the tribunal’s record of classification decisions and its adverse impact on press freedom. What is considered indecent by the OAT is often at odds with editors and publishers of newspapers and magazines publishing what they consider to be genuine news stories, commentaries or advertisements.

The chilling effect of the COIAO was vividly illustrated last year, in the case of an edition of the National Geographic that contained computer-generated images of a naked Neanderthal woman. The publisher of the Chinese version wrapped that edition of the magazine with a warning notice that it was not for sale to readers under 18 years old. 

The JMSC paper included the following recommendations:

• The current process of classification of obscene materials, particularly as it relates to the news media, should be scrapped or greatly revised.
• The government’s proposal to add a new classification category of indecency for individuals between 15 and 18 years of age should not be introduced, as it would impose an unfair burden on newspapers and magazines with general readerships.
• The tribunal’s decision database should be made available publicly and online.
• The government should refrain from further regulation of the Internet, which remains largely self-regulated in Hong Kong, because of the potential for censorship and the difficulty of enforcement in a medium without national borders.

“It is clear that the existing COIAO regime needs to be reformed,” said Dr. Yan Mei Ning, co-author of the JMSC paper and a contributor to Hong Kong Media Law. “But the outcome should not simply be the introduction of harsher measures and more severe penalties. Instead, there should be a scheme that is more transparent and accountable and provides greater consistency and foreseeability in its laws and regulations.”

The JMSC position paper was researched by Dr. Yan, an associate professor at the Cheung Kong School of Journalism and Communication at Shantou University and an honorary researcher for the JMSC, and was written by Dr. Yan and JMSC Associate Professor Doreen Weisenhaus, Director of the Media Law Project.

The JMSC paper can be downloaded as a PDF document here.