The child pornography dilemma
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Security chiefs have pledged that a newly drafted Child Pornography Bill will, if enacted, better protect children from the twin evils of pornography and sex tourism.
As discussion rages over how far laws banning the possession of images of sexually abused children - either printed or on the Internet - should go, one of Hong Kong's top officials drafting the new laws has said safeguards will be built in.
When the initial Prevention of Child Pornography Bill was first introduced into the Legislative Council in July 1999, it was welcomed as a move to make Hong Kong Asia's leader in the battle against the exploitation of children.
At the time, coupled with the Crimes (Amendment) Bill 1999, it sought to criminalise the making, producing, publishing, importing, exporting, distribution, advertising and possession of child pornography.
The Crimes (Amendment) Bill would have made it possible for any Hong Kong person who committed a range of sexual offences against children either here or overseas to be prosecuted in Hong Kong.
It would also have prohibited the arrangement and advertising of child sex tours.
However, due to a backlog of other pressing bills and worries over how far it might go, the Child Pornography Bill lapsed on June 30, 2000, when the legislative term ended.
After substantial revision and with amendments to the Crimes Ordinance incorporated, the government introduced the revised Prevention of Child Pornography Bill in January last year.
Principal Assistant Secretary for Security Elisa Yau Kwai-chong said the bill in its present form offered better protection to children against sexual exploitation in the forms of child pornography, pornographic performance and child sex tourism.
'The enactment of the bill will enable Hong Kong to comply with the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, and the International Labour Convention No 182 on the Elimination of Worst Forms of Child Labour,' Ms Yau said.
'The fight against child pornography is an international cause. Many countries, including the UK, US, Canada, Australia and many European countries have enacted laws prohibiting child pornography. The bill will provide a statutory framework comparable to those in other jurisdictions for protecting children against child pornography.'
She said it was drafted after taking into account the definitions, offence provisions, defence clauses and extent of control in the legislations of other jurisdictions, as well as the opinions received during a public consultation in November 2001.
'The administration has taken note of the concerns expressed that some people may come across child pornography inadvertently, while others may handle child pornography for a legitimate purpose,' said Ms Yau.
In an attempt to ease fears, the proposed bill contains five grounds that can be used as a defence for accessing child pornography.
If it is for genuine educational, scientific or medical purposes, artistic merit, or when it serves the public interest and does not extend beyond what served the public good.
When the defendant has not seen the child pornography and did not know or have reasonable cause to suspect it to be child pornography;
When the suspect did not ask for the child pornography and tried to destroy it within a reasonable period after it came into his possession;
When the material has already been classified as a Class I or a Class II article under the Control of Obscene and Indecent Articles ordinance (Cap. 390); and
When the suspect believes on reasonable grounds that the person pornographically depicted in the child pornography is not a child at the time of the depiction and he takes all reasonable steps to ascertain the age of the person, and in so far as he is able to influence in any way how the person was depicted, he takes all reasonable steps to ensure that the person is not depicted as a child.
'Law enforcement agencies will take the above defences into account during the course of any investigation,' Ms Yau said.
'We are also fully aware of the human rights concerns that may be raised regarding the bill and the arguments that the proposed provisions may interfere with the right to freedom of expression - given that, in particular, the possession of child pornography is to be made an offence.
'Nevertheless, we [law enforcement agencies] believe that by clearly and carefully defining what is included as child pornography - in conjunction with the availability of the defence provisions - an appropriate balance is struck between offering adequate protection to children and refraining from any unnecessary infringement of freedom of expression.'
The bill is now being scrutinised by a bills committee of the Legislative Council.