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Hong Kong: GV Editor Oiwan Lam faces court battle over Flickr photo

OiwanOn May 11th, Oiwan Lam, Global Voices Northeast Asia Editor, committed what she says was a deliberate act of civil disobedience. (She is pictured at left protesting media content controls.)

Writing on the citizen media website InMedia Hong Kong, Oiwan called on her readers to post links to erotic websites and also included an artsy photo of a topless woman that she found on Flickr, the photo sharing site owned by Yahoo!. The post was originally published here, but has now been removed from the InMedia site and posted on a WordPress.com blog here. (WARNING: that last link is for people over 18 only and is not work-safe.)

As Boingboing and others reported earlier this week, Oiwan's post has been classified as "Class II indecent" by Hong Kong's Obscene Articles Tribunal. The maximum penalty for this is HK$400,000 (US$ 51,162) and one year in jail. Whether or not she ends up doing jail time, she certainly faces a long drawn out court battle and series of appeals, and if she loses will end paying a hefty fine. People in the media business with experience fighting such cases also point out that the implications of a conviction are quite serious because the conviction is passed to all governments and would affect her ability to get visas.

jakephotocroppedAt right is a cropped version of the image, minus the woman's breasts which were visible in the original. Click on the photo to see the original image. (WARNING: not safe for workplaces or children.)

Oiwan displayed and linked to this photo as part of a protest against the fining of a man who posted links to porn sites in an adult online discussion group. She was also protesting the fact that a local student publication was recently classified as indecent after publishing a questionnaire about sexual behavior. She discusses her reasons in English here, here (WARNING: same warning as above applies to these two links), and here. Also see two posts about the earlier cases on Global Voices here and here.

Oiwan feels strongly that censorship of adult material is the thin end of the wedge for creeping political censorship – and the silencing of minority voices. In the opening of her "war declaration" post, as translated by Roland Soong, she writes:


The recent storm aroused by the Chinese University of Hong Kong student newspaper's erotic section is just the tip of the iceberg. Political censorsihp has been manipulating public opinion in seemingly apolitical sectors. Previously, we saw during the consultation over digital media copyrights how the state machinery used "protection of copyrights" to attempt to introduce a system to filter and delete contents, or else intimidate personal or small websites through fines.

Another gap through which political censorship can be introduced is pornography. This gap gathers the power of the state as well as the forces of religious people and fake moral politicians. So far, they have focused on gender and gay rights groups, but we must extend our battlelines in light of the court decision two days ago: the police filed charges against a netizen for posting hyperlinks to pornographic websites at a certain forum and the court arrived at a guilty verdict with a fine of HK$5,000. This is a very significant precedent for censorship.

Oiwan's court date is August 15th.  Meanwhile…

Flickr's New Regional Censorship Policies Enter the Mix

When Oiwan was asked by the Television and Entertainment Licensing Authority (TELA) on May 28th to remove the offending photo and blog post, Oiwan refused. One reason she gave was that Flickr, which has guidelines about adult material, had not flagged the photo as unacceptable and thus she had no reason to believe it was indecent by any reasonable standard. Click here to read in English about her conversation with the TELA official.

After the conversation Oiwan wrote: "In the guidelines of the largest photograph storage/sharing company
flickr in the world, this photograph is regarded as acceptable and it
is quite prominent in terms of search results. But the Hong Kong
authorities have defined it as indecent. Where should we define the
boundary for netizen and public acceptance?"

Then in mid-June, Flickr launched a new Chinese language service. After which  all Flickr users in Hong Kong whose Flickr accounts were set up through yahoo.com.hk (Yahoo! Hong Kong) could no longer access the photo that Oiwan had linked to on Flickr. Instead, they got a block page like this one:

flickrblocked2.jpg

The page says "This photo is unavailable to you" but gives the user no further explanation as to why.  This now happens any time a Hong Kong user tries to access a photo or account that has been rated "moderate" or "unsafe." They can only access areas rated as "safe." This is part of Flickr's new targeted censorship policy, as outlined in its FAQ item about filters:

If your Yahoo! ID is based in Singapore, Hong Kong or Korea you will only be able to view safe content based on your local Terms of Service so won’t be able to turn SafeSearch off. If your Yahoo! ID is based in Germany you are not able to view restricted content due to your local Terms of Service.

Exactly who determines what gets rated "safe," "moderate," and "unsafe" is not explained to users at all. Exactly what criteria are being used is also not made clear, and while community guidelines are referred to, it's not clear what these guidelines have to do with actual laws in the jurisdictions concerned. In fact, the entire user account of Jake Applebaum, the photographer who took that photo, is blocked to Hong Kong users, despite the fact that it is very unlikely that all his photos violate Hong Kong's obscenity laws.  (His account includes many pictures that don't involve nude people, including – I noticed while trolling his account – fully clothed staff photos for the Electronic Frontier Foundation…)

On June 22nd, TELA handed Oiwan's case over to Hong Kong's Obscene Articles Tribunal (OAT) without notifying Oiwan and InMedia. Then on June 26th, OAT classified Oiwan's article as indecent. In a recent interview Oiwan indicated that she believes there is a relationship between Flickr's censoring of the photograph and the OAT's indecent ruling. "This was some kind of concidence," she said. "Flickr changed its policy and then the Obscene Articles Tribune received my photograph for classification purposes."

Now let's be clear: Oiwan says she has no factual information linking these two events. Somebody from Flickr needs to address this on the record and clear things up. Oiwan's queries yielded only this e-mail from customer service [Flickr Case 283506]:

Hello,
Your picture has been marked "restricted" due to the adult
& sexual nature of the content. Regards,
Michelle

Oiwan believes that two key unanswered questions are:

  1. Did somebody from the Hong Kong government contact Flickr or Yahoo! Hong Kong and ask them to restrict access to Applebaum's photo and/or account?
  2. Were the actions of TELA and OAT influenced by the fact that Flickr had decided to restrict the photo in question?

We do not know.

On Wednesday Boingboing published an e-mail by Applebaum in which he made clear he is very upset about the way he has been treated by Flickr as a longtime user, with his entire account and all of its contents now inaccessible to his friends and potential clients in several countries. He also writes "They're about to be complicit in putting another (Thanks Yahoo!) Chinese citizen behind bars as an unintended consequence of their attempts to grab foreign markets."

Now, let's be clear that Oiwan is not packing her toothbrush, and Hong Kong's legal system is completely separate from mainland China's.  If Oiwan is eventually found guilty after a long expensive journey through the courts, and then fined, the extent to which her plight can be blamed on Flickr depends on the answer to question 1 above. If it's "yes," then one might argue that Flickr assisted the OAT's case, though the Flickr/Yahoo employees may or may not have understood what they were doing or been aware of what was going on with Oiwan.

According to somebody in a position to know, who won't talk on the record, Flickr can only provide local-language services if it complies with local laws. This person says that the decisions about what gets blocked to users in different jurisdictions are made by staffers in these countries – not by staff in the U.S. People in the company also argue they are trying very hard to do the right thing by their users while finding a way to provide localized services in a wide range of jurisdictions.  The extent to which they claim in private to care about their users is, unfortunately, not being conveyed very well in public – or to Flickr users.

Legally, Flickr is off the hook because in the Terms of Service users agree to allow Flickr staff to remove or block their content in accordance with the law as well as community guidelines, etc etc etc all  contingencies covered. It is also unlikely, when more facts become clear, that it will be possible to blame Flickr for having directly caused whatever happens to Oiwan.

However, this whole mess makes one wonder. Even if we assume political content is not being censored (Can we if certain political speech is illegal in some places?) and assuming that we are only talking about censorship of erotic/"adult" content, is it possible for a global internet company like Flickr (or Google) to censor different content for different national jurisdictions without creating major blowback?

The first kind of blowback is a significant decrease in trust by at least a segment of Flickr users – how big a segment depends on how well Flickr communicates with their user community. So far they don't seem to be doing that so well.

The second kind of blowback is more serious:  Are censorship decisions about made by Flickr staff (or staff of any other global user content hosting company) going to be used by governments as an excuse to prosecute certain cases? Without meaning to, will the company's internal content filtering decisions – which appear in this particular case to err on the side of caution in an attempt to comply with local law – inadvertently also help to shape the interpretation of local laws by local authorities in a more restrictive and conservative direction?

Is there any way to avoid this kind of blowback once you get into the game of local censoring? Or it just inevitable?

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  • Oiwan Lam

    The background of Obscene and Indecent Article Ordinance is very political. Before 1987, we used another set of law called “objectionable publication” ordinance, which imposed censorship against description of crime act, speeches that would result in contempt of police department and offensive materials. It is obvious that the ordinance is against freedom of expression. And that’s the background why the government decided to narrow down the scope of the ordinance to “Obscene and Indecent Article” and give up the regulation on “political” speeches.

    However, the recent cases in regulating the internet, including the Di-diney case (a person claim that he would bomb up di-diney), some self-claimed triad society member cases, obscene hyperlink cases, etc. the whole package is a like restoration of “objectionable publication” which equalized “speeches” in the internet to “acts”.

    Moreover, the control over internet is even harsher and more intimidating. If a newspapers or magazine committed such kind of “crime”, the government or police will send them a letter, or at most go to the office for investigation. In the case of internet users, the police gets the permit to enter their house and search over their living space. Individual is more vulnerable to state violence, they usually choose to plead guilty without defending themselves as the court/lawyer fee and time will probably end up more than the fine if they plead guilty.

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