By Uncle Cheng
When I say that in my thirty years in Hong Kong there has never been such a sensational scandal as this one, I think you will know which one I am referring to.
This super-sized sex scandal (Note: AP Photo) has captivated not only Hong Kong but the entire Chinese diaspora worldwide. Society’s prurient gaze has been entranced by the story of the nude bodies of famous celebrities from the entertainment world.
What is extraordinary is that thanks to the internet the most intimate sexual acts (which incidentally must be occurring many times a second somewhere or other) have been almost forced on the public. It feels as if these photographs have somehow invaded our own homes, so pervasive has the internet become.
Is this a kind of watershed or tuning point in history, where in the twinkling of an eye, just about everyone, at all levels of society from my building’s security guard to the taxi driver I took to Central to the typical housewife in Shaukiwan, has been confronted by the most intimate sexual photos of hugely famous people? If this is the internet, do we want it?
The power of the internet to destroy privacy is now self-evident. It behaves like a starved lion let loose on a chicken farm. Of course, as a mere lawyer I am interested by the legal side of things. Especially perplexing is how the Obscene Articles Tribunal (O.A.T.) will react.
What can it do? How effective can its rulings be? The internet may be like an untamed beast but can the O.A.T. tame the print media?
Quite a number of publications have reproduced a few of the hundreds of offending photographs, though always suitably blurred in all the required places to stay within the law. Despite the careful blurring, the question remains ‘Can the published photographs, despite their censoring blurs, be classified as obscene or indecent?’
Of course, newspapers and news magazines can argue that by the nature of their trade they have a public duty to publish news. And if nothing else these photographs are certainly news. That after all is how the media makes its money.
In a free and democratic society the press, as we all know, has important duties to perform. We also know that the dividing line between press censorship and freedom of the press can be difficult to define.
This is why the O.A.T. always has a problematic task to perform. Sadly, though, its performance to date has been erratic and its rationale hard to follow. I have myself represented a well-known publishing company for many years and dealt with cases involving the O.A.T. and from my limited experience I would say that the decisions of the O.A.T. are sometimes bizarre and often unpredictable.
I heard of an O.A.T. case, which was quite obviously a borderline case, where something in one publication was considered by the O.A.T. and yet an almost identical item in another publication was not brought to the attention of the O.A.T. at all. In the event the O.A.T. presiding officer, who was a trained lawyer, managed somehow to convince the other two laymen sitting with him that the photograph in question should be classified as indecent.
However, it is not fair to blame the O.A.T. totally for the present unsatisfactory state of affairs. The prosecution authorities (TELA) have a greater responsibility and heavier burden to bear. It is well-known in the publishing world that prosecutions are often very selective and similar articles or photographs may be classified to be indecent by one tribunal but not necessarily by another.
When such disparities occur it becomes difficult for the tribunals decision to be treated with respect.
The O.A.T. will no doubt be inundated with requests for classification regarding the ongoing sex scandal. Just how the O.A.T. deals with the publications may well decide the O.A.T.’s own future.
There is also the bigger question whether the Control of Obscene and Indecent Articles Ordinance needs to be amended. One thing is certain, however. After what has happened certain aspects of life will never be quite the same again.
I will say no more.
