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Research
Article - An introduction to Internet Content Regulation in Asia and the Pacific (April 2001)
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Introduction
Content regulations for online services in Asia are at a very immature stage, based on national laws or self regulatory codes which often attempt to reflect local values and morals. The level of compliance with these regulations varies to a substantial degree.
The basic structure of all Asian regimes for content regulation is that they require action by a carrier if it becomes aware that prohibited material is being carried. In some cases this will be through complaints from consumers, in others it will be as a result of government or agency notices. There are no regimes which require carriers to monitor all traffic. In some jurisdictions licences may be linked to compliance with local content regulation.
However, some Asian jurisdictions are discussing options for preventing access by local residents to offshore Internet gambling services. Governments in Asia take this issue more seriously than general content regulation (eg adult material) because of the serious revenue implications involved. More heavy handed regulation of Internet services may result from this debate.
This article is intended to provide a very brief overview of Internet content regulation (for both adult material and gambling) in four key Asian jurisdictions, along with links to sites where developments can be followed.
Hong Kong
There are four main sources of content regulation for online services in Hong Kong. They are:
- Control of Obscene and Indecent Articles Ordinance
- Code of Practice for Information Services
- HKISPA Code of Practice
- Internet Gambling regulations
Control of Obscene and Indecent Articles Ordinance
This ordinance sets out three categories of articles:
- Class 1 articles (neither obscene nor indecent) which will not be subject to any restriction.
- Class 2 articles (indecent) which may only be published to persons over 18 years old and must carry a prescribed warning
- Class 3 articles (obscene) which are banned from publication.
Categorisation is undertaken by the Obscene Articles Tribunal. Breaches of the Ordinance carry heavy fines and prison terms. However, the Ordinance does not apply directly to Internet content except by cross reference to the two Codes discussed below.
Code of Practice for Information Services
Hong Kong has established an Information Services Complaints Advisory Committee with various powers - the power to issue take down type notices, apply sanctions etc. - although its jurisdiction is currently limited to local pay per call type of information services.
However, the Code of Practice for Information Services is currently under review and may be extended to cover a wider range of online services. One particular provision, 4.13 in the current draft, states:
‘Live services, messages or interactive programmes of an explicitly or implicitly sexual nature which, in the opinion of the Committee, are in violation of Hong Kong SAR law regarding sexual content, are not permitted.’
The Code administration works on a warning system. The Committee may issue a warning to remove certain material. First time offenders face no consequences but subsequent breaches result in more serious sanctions, leading ultimately to indefinite suspension of the service.
HKISPA Code of Practice
The Hong Kong Internet Service Providers Association (HKISPA) has a general Code of practice which binds all members.[1]
They have also issued a Practice Statement on Regulation of Obscene and Indecent Material.[2]
This Practice Statement contains the most detailed content regulation requirements in Hong Kong. It requires members to:
- Take reasonable steps to prevent users from placing or transmitting content likely to be classifiable as Class 3
- Advise subscribers that access to the Internet by a person under the age of 18 years should be supervised by an adult.
- Inform users that material likely to be classifiable as Class 2 should not be made available to persons under the age of 18 years.
- Advise local content providers and distributors that material likely to be classifiable as Class 2 should be accompanied by a prescribed on screen warning before the content can be viewed.
The Practice Statement states that members shall be regarded to have complied with the above if they have informed their users of these requirements, and if they act promptly to block access or cancel accounts when they become aware of any breaches.
There is also a requirement that member report to HKISPA about what action they have taken to rectify breaches, using a form issued by HKISPA for that purpose. In addition, members must notify HKISPA if they receive content related complaints from members of the public.
Internet Gambling Regulation
Hong Kong has a strict Gambling licensing regime, which they are attempting to extend to Internet gambling.
Licenses are administered by the Television and Licensing Authority (TELA) and there is a great deal of debate about how to restrict access to offshore Internet gambling sites by Hong Kong residents.
This issue is under review, and may develop quickly and in unexpected directions. It is likely to be a serious content regulation issue in Hong Kong in the near future. Developments can be followed at: http://www.info.gov.hk/tela/
Japan
Japan has an entirely self-regulatory system of content regulation for online services, although there are some specific laws for purely local content.
General Ethical Guidelines for Running Online Services
The Electronic Network Consortium is an industry association which is run by the New Media Development Association and has close links with the Ministry of International Trade and Industry. The ENC issues guidelines on various aspects of online services, including content regulation.
In 1996 the ENC issued ‘General Ethical Guidelines for Running Online Services’, available at: http://www.nmda.or.jp/enc/guideline.html
These Guidelines require members to take certain action in order to ‘observe laws, the customs of society and public order and morals’:
All online service providers should prepare Membership Clauses which cover:
- ‘Duties to observe’
- ‘Forbidden conducts’
- ‘Counter measures’
All online service providers should establish a Help Desk and Management System which cover:
- A help desk to take care of requests
- Internal procedures for dealing with cases
- All online service providers should define and publicise ‘countermeasures’.
Please note that in the above Guideline there is no detailed explanation of material likely to require action, or the exact nature of the action to be taken. Japan is generally tolerant of most forms of sexual content and has a Constitutional right to Freedom of Speech so it is difficult to ascertain exactly what the requirements of the Guideline are in practice. ECN has also issued some educational material about filtering and labelling software.
However, the Soros Report in 1998 (unfortunately no longer available online) found that in practice, there was no online censorship in Japan.
Law on Control and Improvement of Amusement Business
The Law on Control and Improvement of Amusement Business - revised April 1999, regulates ‘image transmission type sex-oriented special amusement business’. There is a prohibition on the provision of such service to minors. Providers must also ‘stop transmission if it becomes aware obscene images are being uploaded’. The Public Safety Committee may issue advice to take such measures.
This law requires notification to the Public Safety Committee from businesses wishing to establish this type of service in Japan. It is unclear whether this would include typical online services, and it is unlikely this law has any relevance to the provision of access to offshore services.
South Korea
Adult Content
Internet content is specifically regulated by the Electronic Communication Business Law and the Telecommunication Business Act which, under an Enforcement Decree (regulation), establish the Information and Communications Ethics Office as a content regulator.
This office has flexible powers to regulate the content of online services, including chat, BBS and other ‘public domain services’.
The legislation gives the power to the Minister of Communications to order an information provider to restrict specific material which may ‘encroach on public morals’ or which may ‘harm youth’s character, emotions and their sense of value’. Apparently these Ministerial directions (take down notices) are very common in South Korea.
The Information and Communication Ethics Committee operates a ratings system which in effect results in the censorship of materials. The Office can also order an ISP to prevent users accessing offshore sites.
In addition, the Korean Criminal Code makes it an offence punishable by fine or imprisonment to distribute or manufacture obscene goods.
Gambling
While there is no specific Internet gambling law, the Information and Ethics Committee has responsibility over ISPs including the provision of gambling services. The Ministry of Information and Communication also recently conducted an inquiry on Internet gambling. In addition, the Korean Criminal Code makes it an offence punishable by fine or imprisonment to habitually gamble or bet, open a gambling house or sell lottery tickets (unless licensed).
Taiwan
Adult Content
Taiwan does not have a law which specifically regulates Internet content. The regulation of Internet content and online activity has been left to other laws or the common law. However, the implementation of Internet-specific laws has recently been under consideration in Taiwan.
The Directorate General of Telecommunications (DGT) issues approvals for ISPs as Value Added Network Service operators (VANS), and can issue regulations relating to such ISPs. The VANS regulations state that where the regulations do not specifically address an issue, other applicable laws and regulations must be followed.
Taiwan’s Criminal Code provides that the circulation, sale or display of pornographic or indecent images or text is an offence punishable by fine or imprisonment. The Code also applies to the Internet and has been enforced against Taiwanese individuals operating web sites with pornographic content.
Gambling
Taiwan has very complex regulations on gambling and the Government has expressed serious concerns about the provision of access to offshore gambling sites via the Internet. - even some cases under Article 4 of their Criminal Code and.
There is no Internet-specific law on gambling, but it is an offence under Taiwan’s Criminal Code to carry on activities involving gambling or lotteries without authorisation. It may also be a civil offence under Article 268 of their Civil Code.
The Government has taken action to crack down on users and operators of unlicensed Internet gambling services within Taiwan, including criminal prosecutions. It has also taken one action against a local ISP providing access to an offshore Internet casino.
Developments in Taiwan cab be followed at: http://www.iworldinteractive.com/law/taiwan_law.htm
Chris Connolly
Galexia
[1] <http://www.hkispa.org.hk/cop-970410.htm>
[2] <http://www.hkispa.org.hk/Obscene_e.htm>
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