Internet law is vital to protect young from indecent postings

PUBLISHED : Wednesday, 20 February, 2008, 12:00am
UPDATED : Wednesday, 20 February, 2008, 12:00am

In your editorial ('Bring obscenity laws into the internet age', February 16), a magistrate was reported to have asked whether it was a crime to distribute indecent pictures via the internet. He said it probably was.

It is arguable that the posting of 'indecent' (as distinct from 'obscene') articles on the internet is not caught by the Control of Obscene and Indecent Articles Ordinance.

The distinction between obscene and indecent articles is that while obscene articles are banned, indecent ones can be legally published, provided (a) the recipients are aged 18 or above, (b) they are properly wrapped, and (c) a warning notice is displayed on either the wrapper or the front and back covers.

It is impossible for an internet posting to comply with any of the three requirements applicable to indecent articles. The law does not command impossibility. Hence, if one reads the ordinance as a whole, it is clear that the legislature does not intend it to apply to internet postings, at least not the indecent ones.

If the legislature does intend the ordinance to apply to internet postings, its effect is to ban indecent internet postings altogether (until the necessary technological device is invented for them to comply with the requirements). That is against the policy intention of distinguishing between obscene and indecent articles. It would also constitute an unnecessary restriction of the freedom of expression, hence a breach of the human rights guaranteed in the Basic Law.

When I asked the Television and Entertainment Licensing Authority several years ago, I was told that there had not been any prosecution in respect of indecent internet postings. I presume the situation remains unchanged.

It appears that we do need dedicated legislation to deal with the unique questions arising from objectionable internet postings, such as the responsibility of the internet service providers, what constitutes 'publication' and 'possession for the purpose of publication', and how indecent postings can be kept away from children.

Ng Hon-wah, Pok Fu Lam

 

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