In Hong Kong, the issue of child pornography is dealt with not by the COIAO but by separate legislation: the Prevention of Child Pornography Ordinance (PCPO) enacted in 2003. Targeting mainly paedophiles, the legislation imposes a total ban on child pornography, including its production, publication, copying, importing, exporting, or possession. The term ‘child pornography’ stipulated in the PCPO includes the pornographic depiction not only of a real child but also of an adult who pretends to be a child. ‘Virtual child pornography’ comprised of computer-generated images is also prohibited. A child in the PCOP is a person under the age of 16. This differs from legislation in mainland China that defines a child as a person under the age of 18 (LPM 2005).
The highest penalty for the offence of publishing child pornography is a fine of HK$2 million and a prison term of eight years. Conviction for mere possession of child pornography can attract a maximum fine ofHK$1 million and a prison term of five years. Reviewing the sentencing guidelines for possession of child pornography in 2008, the Court of Appeal clearly stated that that the conviction ofsuch an offence should generally attract an immediate custodial sentence unless special circumstances exist (Secretary forJustice v Man Kwong Choi and Another, 1998). It may appear harsh, as the possession is in the accused’s private home, but the Court of Appeal stressed that the courts have to take into account broader factors, one being the protection of vulnerable children.
Conclusion
In mainland China, legislation and other measures cope with online pornography, and they have been reinforced by law enforcement campaigns. However, ‘vulgar’ or indecent content is routinely found on domestic websites, while obscene websites based overseas are readily accessible to many Chinese Internet users. One may therefore conclude from the above discussion that access by minors to online pornography can only be prevented in mainland China through the introduction of a classification scheme of online content and an effective self-regulatory system. It is obvious, however, that neither the Chinese government nor the ICPs have any intention of moving in this direction in the foreseeable future. This is set against the bigger picture of the unwillingness of the Chinese authorities to relax their firm grip on political content in the media, whether online or offline. The stated aim of protecting minors from harmful online content does not enjoy a high priority in public policy but apparently only serves as a pretext for tighter control of political content online.
In contrast, the regulation of online pornography in Hong Kong appears to be more orderly and effective. It is therefore interesting to note that capitalist Hong Kong under ‘One Country Two Systems’ has an edge over socialist mainland China in the regulation of online pornography. Nonetheless, a closer examination of the Hong Kong situation reveals that the COIAO classification scheme and the working of the OAT are far from satisfactory. Increased tensions have been seen in recent years between the rationales for protecting freedom of expression, personal autonomy and personal privacy and those for protecting prevailing community standards and the interests of parents in protecting their children. Of course, this is not unique to Hong Kong, but can also be found in mainland China and many other parts of the world.