The 2000 Review of
the Control of Obscene and Indecent Articles Ordinance
Submission by Cable & Wireless HKT
Cable & Wireless HKT (“CWHKT”) welcomes the opportunity to respond to the
Government of the Hong Kong Special Administrative Region’s Consultation Paper on the
“The 2000 Review of the Control of Obscene and Indecent Articles Ordinance.”
CWHKT considers that the Government’s review has come at an appropriate time in the
development of internet and multimedia products and services. There is currently a plethora
of different statutes, as well as the common law, which regulates indecency and obscenity in
Hong Kong. All of these instruments were developed before the rise of the internet to deal
with specific media such as television and film. These statutes and laws are also applicable in
the internet context – however, in CWHKT’s view, they can often produce inappropriate
results.
As the leading telecommunications and internet provider in Hong Kong CWHKT is at the
forefront of developing innovative internet, multimedia and e-commerce services. However,
CWHKT develops its products and services, particularly those with a content in keeping with
community attitudes and standards – CWHKT is keen to work with the Government and the
community in ensuring that content services are provided to the community in keeping with
community standards of morality, decency and propriety.
CWHKT believes that any regulation of content on the internet should be introduced in Hong
Kong based on the following principles:

The Government’s policy objective to promote the internet and multimedia industries and
the aim of developing Hong Kong into a technology hub for Asia;

Recognition that the complex nature of the internet and the rapid changes in technological
development make any regulation of the internet extremely difficult;

Participants in the internet and technology industries have varying degrees of control over
the articles and content which can be accessed through the internet. Internet service
providers (ISPs), in particular, give customers the ability to access the vast resources and
services available on the WWW – they do not control or even have knowledge of the vast
array of information which may be accessed by one of their subscribers;

Liability for content should be linked to the extent to which a provider has control over
that particular content.
To date the application of the various instruments has been expansive with the concepts of
“obscenity” and ”indecency” defined very broadly. As these laws have been found to apply to
the internet, they have the potential to impact on a range of services offered by CWHKT.
CWHKT provides services at a number of different levels in a vertical chain of activities
from passive carriage services to hosting, billing services and content creation. CWHKT
considers that liability for indecent or obscene articles should rest primarily with the content
provider itself as the primary producer and controller of the article. Other participants in the
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File: COIAO
internet service industry should be only liable to the extent they have any control over those
articles.
CWHKT, in particular welcomes the concept of defences for ISPs in relation to the
publication of articles on the internet however, CWHKT has a number of concerns with the
Government’s particular proposals, many of which in our view place an onerous and
unreasonable burden on internet service providers.
In short:
Requiring internet service providers to “police” their subscribers and all content accessed
through the internet is onerous, costly and unreasonable;
CWHKT supports self-regulatory schemes for the internet industry in relation to obscene
articles. We do not consider that “heavy handed” regulation through the introduction of
statutory penalties is warranted in an industry that is growing and evolving at a fast pace;
CWHKT believes that the primary focus for regulation of obscene or indecent articles on the
internet is with the content providers/web site providers themselves. We would like to see
proposals which balance the liabilities and obligations more equitably between internet
service providers and internet content providers.
CWHKT sets out below some details of its key comments and concerns with the
Government’s proposals.
Key Issues arisen from the proposal
1.
Increase in penalties under COIAO

The COIAO currently stipulates that a person who publishes or possesses/imports for
the purpose of publication of an obscene or indecent article (not in compliance with the
statutory requirements), whether or not the person knows that it is an obscene or
indecent article, is liable to a maximum fine from $400,000 to $1 million and
imprisonment from one year to 3 years. CWHKT does not support the proposed
increase in penalties for breaches of the COIAO as the proposed penalties outweigh
those under the Television Ordinance and the Summary Offences Ordinance which also
regulate indecent and obscene content. Further, CWHKT considers a more light handed,
self-regulatory approach is more appropriate for the regulation of the internet industry
in this area.
2.
Nomenclature of the classification system

CWHKT supports the introduction of a new nomenclature for article classification
under the COAIO so as to avoid confusion with the film classification system.
3.
Two Tier classification system

CWHKT is in favour of increased community involvement in the classification process
as a means of ensuring community views are recognised and to enhance the
transparency of the process itself.
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File: COIAO
4.
Regulation of obscene and indecent articles on the internet
Consumer Filtering software

CWHKT is in favour of increased education and information about the internet in
schools and in homes. Self-education and filtering software are useful tools which
parents and educational institutions can use to guide young people through the content
and resources available on the internet. However, CWHKT is concerned with the
Government’s proposal that such filtering software is to be provided to consumers by
their ISPs. The provision of such software for free to any subscriber is a significant cost
that the ISP industry itself should not be required to subsidise. To cover these costs ISPs
may be put into a position where access or other charges are increased for subscribers.
As part of our customer service, CWHKT is willing give subscribers information on
available software but believes that the installation of such software should be at the
election and cost of the subscriber. CWHKT would also support appropriate
Government initiatives to facilitate the development of filtering software through
industry promotion means.
ISP’s legal liability as a publisher

In light of the recent court cases on the internet and the COIAO HKSAR v Cheung Kam
Keung (1998-2 HKC 156), CWHKT is of the view that a number of key policy issues
need to be clarified. These cases read the COIAO broadly and place considerable
burdens on internet service providers. They treat the "article" for relevant purposes to
be the server on which the objectionable electronic file is stored. Publication is the
placing of that electronic file on that server. Prima facie therefore liability could be
attracted in relation to any content stored on an ISPs technology platform.

This analysis logically applies not only in an internet environment but also to audiotext
and video-on-demand services. However, the practical distinction is that CWHKT
would be in a position to vet content for its video-on-demand services and can control
its audiotext content. However, in an internet context the content storage is very fluid.
To the extent that "publication" is the basis of the relevant offence "publication" is held
to occur at the time material is uploaded to a computer, then a number of ISP activities
are potentially caught:
(a ) when an ISP mirrors or caches content of another website, it is technically the party
that is uploading material to a computer;
(b) to the extent that the content is held on an ISP’s server because it has been uploaded
by a subscriber of that ISP then the ISP may be involved in that "publication".
A great deal of content is stored on an ISP's server that has been derived from third
parties whether as part of a service for subscribers (i.e. their own web pages) or for
efficiency reasons (mirroring and caching). An ISP is not in a position to monitor or vet
all content that is located on its servers and cannot be reasonably expected to monitor
all such content. As such, the defence proposal put forward by the Government in
section 8.7 is of concern to CWHKT particularly if it were the Government’s view that
the ISP would be aware of all content located on its servers at all times.
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File: COIAO

It is currently unclear whether simply providing WWW access would result in
publication by an ISP to the extent that it is delivering the content through its server but
is not retaining that material on its server (and therefore not the end point of any
uploading or downloading functions). That is, where the ISP is acting as a passive
carrier. In our view applying the COAIO to passive carriage would be illogical as the
ISP would neither be in control of nor possess the relevant "article" nor would it be
involved in the act of "publication". It is also illogical that it could be regarded as
"importing" the "article" because the content does not permanently reside on any
physical thing until it is stored on a server.

Accordingly, there are strong grounds for arguing that passive carriage should not be
classified as a publisher and we would submit that the Government consider a specific
statutory carve out for passive carriage activities.
Increased statutory intervention vs self regulation

Of greater concern to CWHKT are the Government’s proposals in section 8.8 which
extend ISP’s statutory liability in the internet context. CWHKT believes that regulation
of obscene articles and the role of ISPs in that regulation are more appropriately dealt
with by way of industry code of practice rather than by statutory intervention.
Increasing statutory liability in this area is a major policy shift – ISPs should be given
increased opportunities to manage and self regulate their own affairs.

CWHKT particularly disagrees with the Government’s focus on ISPs as the
“regulators” of the internet when it is the content providers themselves who create and
control such content and who should bear primary responsibility for their content.
CWHKT would advocate an expanded registration process for internet content
providers in Hong Kong perhaps through the domain name registration system as a
means of keeping track of the identities of internet content providers. We understand
that the Government is currently inviting comments on the "Assignment of Internet
Domain Names and Internet Protocol Addresses in Hong Kong."

CWHKT considers it unreasonable for an ISP to be subject to significant statutory
penalties if it does not take prompt action to remove or block access to obscene articles.
Not only may this have technical difficulties but it increases the role of ISPs to that of
internet police. It is unreasonable to consider that an ISP can control all the activities of
one of its subscribers over the entire internet – the proposal could mean that the ISP has
significant obligations if it can be shown that one of its subscribers has set up a web site
hosted on a server in a different country. The content control nexus for the ISP in this
example is very loose and it would be unreasonable to expect that an ISP should be
responsible for this activity. The requirement in relation to indecent articles is similarly
inappropriate and unworkable.

In addition to the fact that the proposals place liability on an inappropriate party,
CWHKT believes that many aspects of the proposals would require further clarification.
For example one of the key requirements is that the ISP is aware of or has been notified.
CWHKT would suggest that the concept of being aware of needs to be clarified. Is
constructive knowledge sufficient in these circumstances or is actual knowledge
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File: COIAO
required? Closely related to this is the fact that it is left for the ISPs to judge what is
obscene or indecent.

Similarly what definition is to be applied to a user of his services. Does this capture not
only subscribers of the ISP service but those parties who collocate servers in the ISPs
premises or for whom the ISP hosts content? In the same way how is it envisaged that
the concept of to which the public has access is to be applied. Are websites to which
membership is required or to which payment of a fee is required sites to which the
public has access.

Failure of an ISP to block access to all obscene articles hosted overseas is particularly
troublesome. There is an enormous range of content constantly being developed and
created around the world. It is beyond the scope of any ISP to be able to be aware of or
to stop access to all sites or content which may offend statutory provisions in Hong
Kong. It is simply not technically possible for ISPs to be able to block access to all
internet sites which may be obscene or indecent – at present it is only technically
possible for ISPs to block access to sites according to the words used to describe them ISPs cannot block access to sites by reference to pictures contained on that site. The
Government itself has conceded the difficulties on this point in section 8.11 and
CWHKT is very concerned that notwithstanding the accepted difficulties, ISPs could
face significant penalties if they do not comply.

In addition to the above concerns, if ISPs potential liability and exposure is dramatically
increased as suggested under the Consultation Paper, ISPs operating costs will grow
significantly. These costs will be passed onto the consumer in some form which will be
detrimental to the customer, the industry and the ultimate development of Hong Kong
as a technology hub.
CWHKT would welcome the opportunity to provide further details and points on this
important topic as soon as possible.
Cable & Wireless HKT, 19 June 2000
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File: COIAO