For Information
5 December 1997

PROVISIONAL LEGISLATIVE COUNCIL
PANEL ON BROADCASTING, CULTURE AND SPORT

Control of Obscene and Indecent Articles Ordinance :
Work of the Obscene Articles Tribunal

Purpose

This paper briefs Members on the work of the Obscene Articles Tribunal (OAT).

Background Leading to the Establishment of OAT

2. The OAT was established under the Control of Obscene and Indecent Articles Ordinance (COIAO) enacted in 1987. The OAT replaces the then existing system whereby the determination of whether an article was objectionable was made by a single magistrate who was expected to reflect the community's standards. That system was severely criticised for its lack of representativeness. After extensive public consultation, the Government decided that it was necessary to devise a more broadly-based system which could reflect the views of the community in the process of classification and determination of articles. This led to the establishment of the OAT with a judicial officer serving as the presiding magistrate and two or more members of the public as adjudicators. The inclusion of lay adjudicators in the OAT enables community participation in the judicial process on matters of public propriety. The adjudicators are required to advise on what they perceive to be the generally accepted standards by reasonable members of the community. In making a decision on the appropriate classification of the articles, the presiding magistrate has to consider whether the adjudicators?perception of the moral standard of the community is reasonable.

Adjudicators

3. Adjudicators are all recruited by the Government through open invitation and are appointed by the Chief Justice. They are drawn from different backgrounds and interests, thus representing a wide cross-section of the community. The profile of adjudicators in terms of sex, age and occupation has been carefully designed to follow closely the demographic structure of the population. At present, the OAT is served by a panel of 157 adjudicators and the profile of the panel is at Annex.

Functions of the OAT

4. Under the COIAO, the OAT's main function is to classify and determine articles referred to it by publishers on a voluntary basis, the law enforcement agencies (the Police, Customs & Excise Department and the Television & Entertainment Licensing Authority) or the Secretary of Justice. Under the law, the OAT has exclusive jurisdiction to determine whether an article is obscene or indecent. Its decision on decency standard can only be challenged on a point of law.

Classification Guidelines

5. Under the COIAO, the OAT is required to have regard to the following guidelines in determining whether an article is obscene or indecent, or in classifying an article :

1. standards of morality, decency and propriety that are generally accepted by reasonable members of the community;

2. the dominant effect of an article or of matter as a whole;

3. in the case of an article, the persons or class of persons, or age groups of persons, to or amongst whom the article is, or is intended or is likely to be, published;

4. in the case of matter publicly displayed, the location where the matter is or is to be publicly displayed and the persons or class of persons, or age groups of persons likely to view such matter; and

5. whether the article or matter has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it.

6. The OAT also maintains a repository of articles classified by it. Publishers can view the classified articles in the repository if they wish to know more about the prevailing classification standards.

Classification Process and Appeal Procedures

7. The OAT will first give an interim classification on the articles submitted to it. An interim classification hearing is conducted by a presiding magistrate who is assisted by two or more adjudicators. The publisher concerned has five days to consider whether to challenge the interim classification. If the interim classification is not disputed, it will be confirmed as the final classification. The classification results are published on two local newspapers. The enforcement agencies would then take appropriate action on articles which violated the given classification or the relevant statutory conditions imposed for publication.

8. If a publisher wishes to contest the OAT's interim classification, he can request a full hearing within five days after the announcement of the interim classification. The OAT will set a date for the full hearing which is open to the public. The publisher can make representations (by himself or through his legal representative) at the OAT full hearing. The presiding magistrate at the full hearing will be assisted by four adjudicators who are not previously involved in the original interim classification. After the full hearing, the OAT will make its final decision on the appropriate classification for the articles concerned. The decision is final unless it is challenged on a point of law by the aggrieved party at the higher courts.

9. In making classification rulings during interim hearing or full hearing, the OAT has to identify the part of the article which causes the obscenity or indecency.

The Role of the OAT

10. The OAT provides a simple and efficient machinery to deal with offensive articles unacceptable to the community. It classifies tens of thousands of articles every year, but decisions which created controversy or were subject to criticisms were few (average 1%). In this regard, it should be noted that the determination of whether an article is obscene or indecent is ultimately a matter of value judgement which is bound to be subjective. "Obscenity" and "indecency"are abstract and relative moral concepts and not an exact science. It changes from time to time, place to place, and culture to culture. What is important is the need for OAT rulings to reflect those standards that are generally accepted by reasonable members of the community. Over the years, the OAT has been able to maintain a consistent standard of classification as demonstrated by the following statistics :

Note : * More than one article may be submitted for each case.

Way Forward

11. The system for regulating obscene or indecent articles was reviewed by the Government in 1995 resulting in measures to enhance the transparency of the operation of the OAT and the independence and representativeness of the rulings of the OAT. To obtain feedback from the community on the current regulatory system, the Government will conduct a large scale public opinion survey in 1998 to assess extensively public opinion on the adequacy of the COIAO, the system for classifying articles, and the prevailing classification standards. The survey results will provide data for Government to consider whether any policy and/or legislative changes are necessary to meet the expectation and needs of the community.

Broadcasting, Culture and Sport Bureau
November 1997

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Annex

Obscene Articles Tribunal Profile of the Existing Panel of Adjudicators

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