Oiwan update: TELA and OAT won't answer her questions

Blogging related to Oiwan's situation has slowed down a little, but her case remains one that will likely put Hong Kong on the long and astonishing list of countries which practice internet censorship worldwide. There had been some very strong criticisms made against Oiwan and those who support her by one Hong Kong blogger last week, who has since deleted his entire blog and disappeared. Very thoughtful and useful discussion of what Beifeng wrote regarding Oiwan's case has continued at bezdomny ex patria:

I’m not convinced that the fight should be with the law instead of with TELA or its functionaries. It seems to me that a large part of the problem is TELA’s cackhanded application of the law. But yes, absolutely: Who is Oiwan Lam (or Rebecca Mackinnon or Roland Soong or me or anybody) to arbitrarily shout “TELA is wrong, I am right, this photo is not indecent!” It does often seem that liberals are not really as liberal as they claim and they spend just as much time trying to impose their standards on society as the conservatives who seem to have taken over TELA. But on the other hand, I don’t think this is the point. Oiwan’s posting of a photo of a topless woman may have been ill-advised, and Beifeng does make a good point in that Oiwan sounds like a TELA official arbitrarily imposing standards of what is decent or indecent, but the point of posting that photo was to expose the serious problems in TELA’s application of the law and the absurdities that result from TELA’s actions.

Hong Kong blogger and Hong Kong University journalism Professor Rebecca MacKinnon has been blogging overtime to bring us the latest update, in which Oiwan finds attempts to obtain information crucial to her defense stymied. She writes:

Oiwan has been trying to get more information from the Obscene Articles Tribunal so that she can prepare for her hearing with them. On July 17th she wrote them a letter asking the following questions:
  1. Where is the venue of the meeting which did the classification? Who had attended the meeting? Apart from the principal adjudicator and two committee members?
  2. How were the two adjudicators designated? Selected by the Registrar of OAT? Rotated according to the committee members’ list? Or by computer random selection?
  3. Had there been an actual voting? If there is, what classification is opined by the two adjudicators? What is the opinion of the principal adjudicator? If no voting were made, please describe how the classification was arrived at? For example, was the suggested classification made by any of the three adjudicators and then consented by all? If that was the case, who had suggested the classiication? .
  4. Among the two adjudicators, Mr. 薜國強 and Mr. 黃樂豪, did they express any opinion towards this particular article? If so, what are their opinions? Are there any minutes, written or sound record of that classification meeting? And their opinions?
  5. Had the principal adjudicator and the two adjudicators been informed of the fact that the photo is a hyperlink to flickr (an international photo sharing site with its own guideline for indecent material)? And the nature of the website www.inmediahk.net where the artile is published?
  6. Had TELA (Television and Entertainment Licensing Authority) or Department of Justice given any remark, comment, legal advice, reference materials, letter of complaint or supporting document when they submitted this particular case to OAT? If so, I should like to know the details of the above documents.

In her letter she also gave the following reason for asking these questions:

The above information is necessary for my preparation of witness statement, expert opinions, submissions, etc. as they directly affect the classification of the article – which can lead to a serious criminal charge. Am looking forward for your reply at your earliest convenience.

Writing on her Facebook page today, Oiwan updates us on the response she received from OAT:

OAT forwarded my letter to TELA, and TELA wrote back to them: "Futher clarifications from the applicant may be needed and the Tribunal may wish to ask the Applicant to indicate the relevance of the questions in relation to the full hearing".

OAT then replied to me in one sentence: "Please tell the Tribunal the relevance of the questions in relation to the full hearing".


Re: Oiwan Lam's expensive fight against an unpopular tribunal

Blogging coverage of Oiwan's case is still going strong in English, locally for the most part.

Rebecca MacKinnon, professor of new media journalism at Hong Kong University goes through some of the tough questions that need to be asked about Oiwan's lawsuit—can Oiwan afford it? Does Oiwan deserve it? Does Hong Kong?—in her July 21 RConversation post, Oiwan Lam's expensive fight against an unpopular tribunal:

"Knowing that the publication of unpixellated nipples has always been a big no-no for media in Hong Kong, one could argue that Oiwan's blog post was ill-considered, especially given that she and her organization are financially unprepared for the legal battle she now faces as a result of her "civil disobedience." However, assuming that the prohibition on open publication of nipples is a community standard that the Hong Kong people want to uphold (which is not for me to judge), I hope that the OAT and the courts will consider that the context in which she posted the picture was very different from the context in which topless girlie pix are published in newspapers to boost circulation, or in which topless photos are posted on commercial websites to boost web traffic.

Oiwan posted the offending photo on a very serious (one might say very earnest) citizen media website which has no history of posting photos of scantily-clad or unclad women in order to boost traffic. Many blogs and websites that do post sexually provocative pix on a regular basis to boost their traffic - even some political sites - but Inmedia Hong Kong is definitely not one of them.

Furthermore, Oiwan published her the photo in the context of a heated political discussion about how TELA and OAT operate. One might argue that the tone of her post smacked of "bring it on" - which TELA and OAT certainly did. But is a possible HK$400,000 and 1-year jail sentence, plus a criminal record whether or not she gets jail time, a punishment commensurate with any possible harm to community standards that her picture could have caused? I just don't understand how that could be so."

One of the questions anwered in Rebecca's post is this: have the recent actions and decisions of the Television and Licensing Authority been representative of mainstream values in secular, postmodern Hong Kong? Friend of Oiwan Lam and merciless statistician Roland Soong at EastSouthWestNorth answers this and more with a triple-KO of posts over the past two days: Hong Kong By The Numbers, The Blog Ring of Artistic Nudes, and in More Tales From Television and Entertainment Licensing Authority.


Free Oiwan Lam links

A list of blog posts on Oiwan's case can be found here. It will be continually updated, so if you see anything please let us know.


Oiwan Lam has committed no crime!

Not that this will help her in her trial. Unelected and unaccountable extremist religious conservatives have seized control of Hong Kong's Obscene Articles Tribunal and are abusing the powers this gives them to launch a morality war. Oiwan Lam is just one of their victims, but she has no intention of playing that role. Her court date has yet to be announced but is expected sometime later this summer or early Autumn.

This blog has grown out of a Facebook group of the same name inspired by an earlier post by Will Moss at Imagethief and is maintained by Oiwan's friend and Global Voices Online colleague John Kennedy, with Oiwan's permission. Netizens in China and other countries where blogspot is blocked can access this blog quite easily using PKblogs' valuable service.

What can you do to help?

You can listen to Oiwan's July 17 interview on the BBC, sign a petition organized by Hong Kong In-Media, inmediahk.net and the Hong Kong Federation of University Students calling for reform of the existing classification system as well as listen to or read a second interview with Oiwan, blog about her case as many others have done (1 2 3 4 5 6 7 8 9) and more by the hour, or, perhaps most importantly, show your support by contributing to the Oiwan Lam Free Blogging Defense fund either on Facebook or directly to Oiwan's personal PayPal account. US $60,000 is an impossible amount of money to pay alone for someone who works full-time—and has, for years—in grassroots media. If you do decide to blog about this, please feel free to use the outstanding blog badges that Ryan McLaughlin at The Humanaught (among other blogs) took the time to design and donate to this cause, and please let us know:

Insert this code into your blog post or front page for the Large badge:
<a href="http://freeoiwanlam.blogspot.com/"><img src='http://tinyurl.com/2edou7' /></a>

Code for the medium badge:
<a href="http://freeoiwanlam.blogspot.com/"><img src='http://tinyurl.com/2f69ec' /></a>

Code for the small badge:
<a href="http://freeoiwanlam.blogspot.com/"><img src='http://tinyurl.com/2mtmhu' /></a>

Today is July 19
and Oiwan has written a blog post thanking all those who have shown her such warm support, and why this matters so much to her as she prepares for her court trial:


My dear friends,

First of all, I should thank you all for backing me up for this Obscene Articles Tribunal court case; some of you I have never met face to face, but have developed some attachment by reading your blogs on a daily bases. As you have set up a Free Oiwan Lam! Facebook page for me, I owe all of you a proper self-introduction and case briefing.

Debuting from mainstream media

I started my career as a journalist in 1994 in a Taiwanese newspapers (United Daily News) in Hong Kong. I were at the China desk and responsible for news in South China, from disaster news (like flooding, factory fire, etc.) to social and economic development in the Pearl River Delta areas. However, in one of the report trip in Nan-hai, I were drugged in a local hotel and they took all my money and belongings. Then I was transferred to the political desk, in responsible for the Handover news. I traveled rather frequently to Beijing for reunification preparatory committee meeting, Sino-British negotiation, People’s Congress, and etc. Later, I shifted to Hong Kong Economic Times, also working at political desk. I remember traveling to Tung Chee Wah’s hometown to “polish” his biography. By then, I felt something went wrong and decided to quit, and subconsciously, I submitted a M.phil proposal on “rewriting collective memories in Hong Kong”. For some reasons, I failed to get a scholarship.

Then I started working for a regional organization called ARENA (Asian regional exchange for new alternatives), its fellows are academics from Asian countries concern about environment, gender, peace, and etc.. Soon after I joined the organization, came the Asian financial crisis; reflections on development and studies about the impact of the crisis became a top agenda. As I was responsible for a regional education project, I had the chance to travel to different Asian countries for organizing workshop and develop more knowledge about the Asia region. While locally, I was involved in some semi-academic alternative magazine publications.

After I finished my three year contract, I traveled to Germany in 2000 for a three months post graduate course on “gender and migration” in an experimental project called International Women University. After that, I moved to Taiwan, Hsinchu, to work for an academic journal, Inter-Asia Cultural Studies, as managing editor. In 2002, I was in a M.phil programme in the sociology department of Beijing Tsinghua University. My thesis is about Fujian-Hong Kong migrant family. (My family is from Chiao-zhou.)

Chasing stars at Tiananmen Square

When I was in Beijing, I was working for a research on fansclub culture in China. For one year, I were chasing pop stars, like Jay Zhou, Faye Wong, Yangzi in Beijing with youths, who organized themselves via internet forums, QQ groups and mobile text messages. In one occasion, I were chasing stars at the Tiananmen Square, blocking cars from entering the People’s Congress Hall. The research experience was very inspiring and I decided to develop internet independent media in Hong Kong.

In 2004, while I was writing my thesis in Hong Kong, I started inmediahk.net with my friends. Our references at that time were Ohmynews, IMC, Dan Gilmor’s grassroots media and Z-net. “Independent” and “citizen or minjian journalism” become our key concepts. In 2005, we organized our counter-punch style of reporting during the WTO ministerial meeting. Now it is a major citizen journalist website in Hong Kong with an average of 6,000 daily visitors and 120,000 daily pageviews (even though the website is GFWed in China). The latest citizen media campaign is the Queen’s Pier preservation.

Last year, we launched the interlocals.net which is designed to be a platform for local citizen media to translate their news. However, because of various reasons (including the lack of organizing, technical support, language barriers, resources, etc.) cross-border dialogue hasn’t been taking place yet.

As I was formally elected as the Chair for Hong Kong In-Media last year, I have to coordinate the administration, management and fundraising, etc. with two other executive members in a voluntary base.

Internet public space in Hong Kong

I still remembered how I met Rebecca in the first China blogger conference, and how by accident in a google chat, I came across the message that globalvoicesonline.org were looking for northeast Asia editor. The work not only provides me with minimum stable income, but also allows me to keep in touch with blogosphere in Northeast Asia in a daily bases, it is really like a research work. Hence, I am rather sensitive to the shrinking of internet public space in Hong Kong.

First we have the criminalization of B.T uploading (creating seed file)in the name of copyrights violation. The case sets the world record as it is the first criminal case against individual B.T upload while in the real life, copyright violations are mainly civil case except from large scale and organized violation. I am not saying that the B.T uploading guy is right. However, the death of Hong Kong film industry is not because of B.T. but because of the global market flow.

The Hong Kong police spent million of dollars for a machine to scan the internet, tracking i.p. addresses. Once the machine is in place, and there are no more B.T uploading activities, it moves to other sectors, tracking i.p of spoof posts like the di-diney bombing, self-claimed triad society members and indecent and obscene articles. The police claimed that all law applicable to real life will be applied to the virtual world.Initially the law on self-claimed triad society members is to control triad society members for threatening real people in real life with real threats, however, when it comes to the virtual world, the “self-claiming” does not constitute a “real threat”. Unless the police were able to prove that the person is really recruiting members from the internet, they cannot just apply the “self-claim” law to the netizens. After the ridiculous charges, many local bloggers wrote fictional stories titled as “life in triad society”. However, the police department is smart enough not to pick up these cases.

However the Secretary for Security, Mr Ambrose S K Lee, in clarifying the nature of hyperlink in the distribution of indecent and obscene articles continued to stress: if website hosts have knowledge that their website is linked to a pornographic article, they may be liable as an aider and abettor in publishing an obscene article (June 20, 2007 speech in the Legislative council). Well, all of you know that my hyperlink article is indecent now, so be careful with your link!

Complaint letter workshop and TELA

Back to the flickr indecent hyperlinking case, the complaint mechanism of the Television and Entertainment Licensing Authority (TELA) has been abused by conservative groups for quite long. A public secret for the Chinese University Students Press (CUSP)’ case was that the complaints were “homework” coming out from a complaint letter writing workshop organized by a conservative church group. However, the TELA has lost its senses and handed the case to the Obscene Articles Tribunal (OAT) and some of the OAT members jumped out in the newspapers and found the students guilty even before the OAT had its proper meeting. In the end, the indecent parts that pin pointed by the mainstream media were not the parts identified by the OAT! Actually, according to the lawyers' explanation on court, the OAT members failed to identify the parts but judged by general impression; that’s why they have decided to apply for judicial review of the interim classification.

When the CUSP’s case was in hot debate, another outraging news came out. A netizen’s photo links in an Adult discussion board was ruled as category three obscene articles (according to the district court judge, the photos were showing normal sexual behaviour and they are in the adult section!). He was arrested and searched by the police in his house. You can imagine how intimidating and humiliating it is! However, as the netizen chose not to defend, he was found guilty with a HKD5,000 fine (but also a criminal record).

Indecent flickr photo?

This is the background for my civil disobedient act against the indecent hyperlink case and the OAT. The flickr photo was carefully chosen that it goes against the mechanical guideline but not against the law, as the photo is artistic, from a global website that is not pornographic in nature and has their internal guideline. Moreover, there was no complaint against the photo since it has been uploaded and all the discussions were about photographic effects. If TELA had a bit of common sense, they wouldn’t pursue the case, it is a self-destructive act. But the compromising filtering policy of flickr via Hong Kong Yahoo, might have given them the confidence that they had successfully tamed a global company, why not this shabby homemade website? The logic of power has replaced the logic of common sense.

I don’t have concrete evidence that the TELA has given pressure to Hong Kong Yahoo. (But according to their administrative procedure, they have to contact Yahoo Hong Kong and to give them advice.) And a friend working in Yahoo! told me that the flickr programmer team back in the U.S was not aware that Hong Kong was one of the filter areas at the beginning. Rebecca’s source seems to confirm that it is a Hong Kong Yahoo’s decision and judgment to comply with the TELA guideline. Now that there is a local petition on going, Hong Kong Yahoo still refuses to make public statement on their policy. However, the filter is making self-mockery. A comment at inmediahk.net pointed out that, when she searched “Hongkong” and “nude”, there were a large number of nude males, no women at all! It is quite obvious that the filter is a heterosexual male character reacting to the “erotic effects” (OAT’s definition of indecent) of nude woman photo.

Witch hunting? Or a localized version of mainland propaganda department?

Even there were so much criticism against the OAT and lawyers were avoiding the only Judge in the Tribunal by judicial review, the TELA team is still wandering around the city, searching for indecent articles. They remind me of the mainland propaganda department. Today, I got a call from a local reporter telling me that the TELA asked some publishers in Hong Kong’s annual book fair to take away their books (16 in total). One of them titled as Love Mythology with a Greek mythology painting Psyche receiving the first kiss of Cupid as book cover. The publisher argued with TELA and commented that the TELA was "pathetic", as the book has been on the market for two years! In the end, the Trade development council had to step in to persuade the TELA staffs to leave. The reporter asked me whether I had any advice to give when negotiating with the TELA staffs, all I could say is to defend their right with common sense: nudity is not indecent; and some knowledge of previous cases can help.

Setting up a winning case

Back to my case, thanks to all your helps, I become more confident as it is not a lonely battle. (At first I had some family pressure.) I hope that local bloggers and netizens can also take the case as their battle as well. I will prepare very hard to have a good fight and document everything for future use.

Meanwhile, I hope you can continue to blog and talk about the case. As I have to prepare a long and expensive trial from OAT to district court (if not high court), and hopefully bring in the photographer Jacob Appelbaum to Hong Kong for a testimony, money does matter. Will keep you update about the case.

Thanks again,

Yours, Oiwan

(Photo from Rebecca)