Child pornography and the Internet in Hong Kong.

• Author: Ong, Rebecca

1. INTRODUCTION

   The development of new technologies brings with it unprecedented positive development and advancement to society. One of the greatest technological contributions to society is the invention of the computer. Originally intended as a calculating machine, computer technology has expanded in scope and capabilities to transform information, sound, pictures, text and graphics into digital format. The digitization of information, sound, pictures, text and graphics has enabled substantial amounts of data, and the form of data, to be compressed and stored. The advent of the Internet as a global communication network and its file transferring capabilities add to this phenomenon. Modern society is presented with opportunities to not only communicate text by e-mail but also to scan photographs and to attach the scanned photographs with the e-mail. Once a picture is scanned into a computer, digital graphics software such as Microsoft PhotoEditor allows us to merge, edit or enhance images digitally by what is more commonly known as "morphing." Individuals are able to communicate almost instantly in "real time" with Internet relay chats such as MSN messenger, and, with the installation of web cameras, one can even see the person with whom one is communicating. Such modern methods of communication and transmitting data are not restricted to computers. It is becoming commonplace for mobile telephones to have the capability to photograph or to record an event and to have the photograph taken sent and for the event to be played back. These new technologies are constantly developing and they will continue to revolutionize and change our lives.

   New technologies are also revolutionizing the way in which crimes are being committed. The Internet, for example, is seen as a high tech means to facilitate the commission of traditional crimes. It is common for traditional crimes, such as illegal gambling, money laundering, stalking, sale of illegal substances and drugs to be conducted in cyberspace. With the Internet, these crimes can be committed inexpensively, speedily and without detection. In child pornography, home video equipment and advance computer technology has been used to exploit and abuse children by assisting pedophiles in the production and distribution of child pornographic materials. Although child pornographic material still exists in traditional forms, such as videotapes and printed material, it is common knowledge that the Internet is playing a major role in promoting child pornography. By using the Internet, pedophiles get instant gratification in the comfort of their homes. The Internet's file transferring capabilities provide the pedophilic community easier access to child pornographic materials. As compared to waiting for pornographic materials to arrive in the mail or meeting fellow pedophiles in secret, images can be downloaded almost instantly, reproduced, enhanced and further distributed without any loss of quality. This capability increases the possibility of the pedophiles' contact with children, child molesters, child abusers and other pedophiles. It has been suggested that the most commonly used technique for seducing children into sexual activity is by capitalizing on the child's natural need for attention, affection and approval. (1) This has seen a small but rising number of these computer relationships ending up with actual contact and sexual activity with children. (2) Pedophiles may use child pornographic images to break down their own fears or inhibitions thereby allowing them to commit child sexual abuse. Although this may be so, there is very little evidence that that points to a causative link between child pornography and actual child abuse. (3)

   Pedophiles who want to meet children need only to troll online chat rooms to find and lure their victims. The anonymity provided by the Internet provides an excellent opportunity for pedophiles to pretend to be children to gain the real children's confidence and trust. Indeed, it has been suggested that the Internet has empowered the marginalized pedophilic community by allowing them a voice whilst guaranteeing them anonymity and that this empowerment may reduce their inhibitions in the real world. (4)

2. THE PROTECTION OF CHILDREN

   Children should be protected from all forms of abuse and exploitation. To this end, Article 34 of the Convention on the Rights of the Child (CRC) provides that state parties undertake to protect the child from all forms of sexual exploitation and abuse. (5) Measures should be taken to prevent the exploitative use of children in pornographic performance and materials. (6) In fulfilling its obligations as an adherent member to the CRC and in dealing with the rise in the consumption of child pornography, Hong Kong passed the Prevention of Child Pornography Ordinance (PCPO). (7) This ordinance, which came into effect on December 19, 2003, is seen as a positive step in implementing Article 34.

   Historical Development

   Prior to the enactment of the PCPO, the supply and distribution of both adult and child pornographic materials was regulated by the Control of Obscene and Indecent Articles Ordinance (COIAO) which deals with obscene and indecent articles. (8) Under COIAO, an article is classified as a Class I article if the article is neither obscene nor indecent, Class II if the article is indecent and Class III if the article is obscene. (9) An article is defined as "any thing consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video tape, disc or other record of a picture or pictures." (10) For the purposes of COIAO, an article is regarded as "obscene if by reason of obscenity it is not suitable to be published to any person." (11) An indecent article under COIAO is any thing "not suitable to be published to a juvenile." (12) The COIAO defines obscenity and indecency to include "violence, depravity and repulsiveness" under the interpretation section of the ordinance. (13) The Obscene Articles Tribunal classifies articles as obscene or indecent. (14) The Tribunal has exclusive jurisdiction in determining if the article is obscene or indecent, (15) and in this regard will consider various factors such as inter-alia the "standards of morality, decency and propriety that are generally accepted by reasonable members of the community" and the persons, class of persons, and the age groups of such person for which the article is intended to be published. (16) The Tribunal shall also have regard to the dominant effect of an article as a whole. (17) Although the COIAO does provide for the Court of First Instance to hear appeals against the decision of the Tribunal, (18) the decision in East Touch Publisher Ltd. v. Television and Entertainment Licensing Authority (19) should be noted. In East Touch, the plaintiffs were appealing against a decision by the Tribunal that an article entitled "Festival of Pornography" was indecent. (20) The plaintiffs argued that the article, which depicted photographs of sexual organs, reproduced in plastic or chocolate was not intended to offend or be taken seriously. (21) The appeal was dismissed with the court reiterating that the Tribunal was the sole arbiter of whether an article is indecent. (22)

   Similarly, in the then recent case of East Week Publisher, the plaintiffs were appealing against the decision of the Tribunal which had ruled that the nude photograph of an actress which accompanied the report in the magazine was indecent. (23) The photograph was lifted from the cover of an album of nude photographs of the actress. (24) The plaintiffs argued that the photograph, rather than being indecent, "was of artistic value because it came from the actress' book." (25) Magistrate Selwyn Hason Au See-hin dismissed the appeal stating, inter alia, that there was "no honest intention in publishing the photograph.... The photograph, which took up about a quarter of the page, purposely revealed the actress' breasts to create an erotic effect." (26) Magistrate Au went on to say that "the level of nudity in the photograph surpassed the level of morality accepted by reasonable members of the community." (27)

   Certain prohibitions are in place once an article is classified as obscene or indecent. For obscene materials, any person who publishes, possesses, or imports for the purpose of publication an obscene material commits an offense and is liable to a fine of one million dollar and a term of imprisonment of three years. (28) In HKSAR v. Chung Yee-yung, Chung was sentenced to fourteen months imprisonment for publishing an obscene article when he uploaded child pornographic movies onto a website viewed in New Jersey. (29) Publishing indecent material to a juvenile (a person under eighteen years of age) will attract a fine of $400,000 and a term of imprisonment of twelve months for the first conviction. (30) The fine increases to $800,000 with a twelve month term of imprisonment for second or subsequent convictions. (31) A person publishes an article if he, "whether or not for gain, distributes, circulates, sells, hires, gives or lends the article to the public or a section of the public." (32) It is a defense under the COIAO for the defendant to prove that he had reasonable grounds for believing that the article was not obscene, (33) or that under the charge of publishing the article to a juvenile that he had inspected the identity card or passport of the juvenile and had reasonably believed that the person was not a juvenile. (34) There is also a general defense of public good "that such publication or display was in the interests of science, literature, art or learning or any other object of general concern." (35) It can be seen from the cases that the Tribunal, being the "guardians of society's morality," evaluates the defense raised against the standards of morality that is acceptable to society. (36)

   At this juncture...