MING PAO NEWSPAPERS LTD. v. COMMISSIONER FOR TELEVISION AND ENTERTAINMENT AUTHORITY

1997, NO. OAT 1

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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REASONS FOR JUDGMENT

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1. This is an appeal from the determination of the Obscene Articles Tribunal made on 18 January 1997 that an article published by the appellant on page 16A of its newspaper, Ming Pao Daily, on 30 June 1996, comprising of a photograph showing, inter alia, the front view of a naked woman, was indecent. The appellant was the defendant in a criminal trial at Eastern Magistracy being charged with an offence concerning publication of the said article. The principal issue for the criminal trial was whether the said article was indecent. As the Obscene Articles Tribunal has exclusive jurisdiction over the said issue, the same was thus referred to it for a determination at a hearing on 13 January 1997. On 18 January 1997, the Obscene Articles Tribunal unanimously found the article to be indecent.

2. It was the photograph and not the text of the article that was the subject of complaint. The photograph depicted the following :-

(a) A background comprising the inside premises of a record shop.

(b) A lateral view of a bare-chested male holding a cigar in one hand, bespectacled and with slicked-back hair and exaggerated moustache and eyebrows; and described by the appellant as "possibly doing a poor imitation of Groucho Marx".

(c) A front-on view of a naked woman holding a cassette tape with both hands over her pudendum covering up the whole of that portion of her body. The full outline of her breasts was clearly visible. The surrounding aureole and both nipples were obscured by pixel technique so that their visual appearance were blurred by small oblique transparent squares. Notwithstanding the obfuscation, by using oblique squares, the underlying colour closely resembling the natural colour of aureole and nipples of that type of Caucasian female was clearly visible.

3. The photograph, that was of the size of 4 inches by 4.5 inches, was juxtaposed to a narrow vertical rectangular text in Chinese, of a size of 0.25 inch by 4.5 inches. The text read : "The 9th anniversary of a record shop in Melbourne, Australia which welcomed nude customers to patronise the shop. Such customers would receive a free music record." The article appeared on the "International Titbits" page of the newspaper amongst other international news of similar nature.

4. It is common ground that the only complaint related to the exposure of the breasts of the female in the manner depicted supra. In coming to its determination, the Obscene Articles Tribunal considered the guiding principles set out in s.10 of the Control of Obscene and Indecent Articles Ordinance, Cap.390. In this appeal, there was no dispute that the issue arising was to be determined according to the principle of Edward v. Bairstow [1956] A.C. 14. The test was whether the tribunal acted without any evidence or upon a view of the facts that could not reasonably be entertained; or that the state of facts could only lead to one conclusion of law that was not found by the tribunal?

Static Society Approach Complaint

5. When considering the standard of morality, the tribunal held that "Even in a community such as Hong Kong where Chinese and Western culture integrate, this standard remains unchanged despite the passage of time and change of circumstances." It was submitted by the appellant that by so holding, the tribunal was adopting a static society approach. It was submitted that it was a serious error of law for the tribunal to so hold. I could not agree that the statement made by the tribunal constituted any error of law as submitted or at all.

6. In that statement, the tribunal was finding as a fact that notwithstanding social changes that had taken place over the years in Hong Kong, the standard of moral had remained unchanged. It would obviously be contrary to common sense, and wrong in law, for any tribunal to hold that moral standard could not change with passage of time and change of circumstances. However, that was not what was held by the tribunal. The tribunal was simply making a finding of fact that at the material time, the moral standard had not changed as compared with before. It was unfortunate that the tribunal did not disclose the period of history in Hong Kong that form the basis of the said comparison. But when the judgment was read in the context of the submission of the appellant's counsel, it became clear that the finding was made in specific response to a particular submission of counsel. In his submission, counsel for the appellant was contending that moral standards did change over the years and that the standard prevailing 10 years before the relevant date might no longer be valid 10 years later. I was satisfied that the failure to make specific reference to the basis for comparison would not affect the validity of the finding. The tribunal was simply observing that the moral standard had been static and not been changing for sometime, without specifying the precise period of history that it was considering. It would perhaps be preferable for the exact historic period to be specified in the finding. However, the absence of such a reference would not per se affect the validity of the finding. I am satisfied that there was no substance in this ground of appeal.

Indecency

7. "Indecency" was defined in the Ordinance as including violence, depravity and repulsiveness (s.2(1)). Section 2(2)(b) further provided that a thing would be indecent if by reason of indecency it would not be suitable to be published to a juvenile, i.e. a person under 18 years of age. The meaning of indecency has been defined, in R. Stanley [1965] 1 All E.R. 1035, as "something that offends the ordinary modesty of the average man ........... offending against recognised standards of propriety at the lower end of the scale." There was no controversy on the meaning of indecency. Neither was there any dispute that in determining a photograph illustrating a text, the tribunal should examine the photograph in the light of that text, as in such circumstances the photograph standing alone would not constitute an article within the meaning of the Ordinance (see Pao Wai Louis & Another v. Obscene Articles Tribunal [1975] 1 H.K.C. 51 at 55).

"It was clear from s.10(1)(b) and (e) of the Ordinance that the legislature expressly contemplated articles part of which might standing on their own have been considered obscene or indecent but would not fall to be so considered when read or taken in context. To deprive a publisher of the possible benefit of that context by considering a submission of part only of an article was illegal and a disguised threat to freedom of speech and expression." (per Godfrey JA in Pao Wai Louis, supra.)

8. It was submitted by the appellant that had the tribunal properly applied the guiding principles in s.10 of the Ordinance, it could not have come to the conclusion that the article was indecent. In particular, the appellant submitted that the tribunal had erred in applying the principle under s.10(1)(b), (c) and (e).

Section 10(1)(b)

9. The guiding principle in s.10(1)(b) obliged the tribunal to consider the dominant effect of an article as a whole. It was submitted by the appellant that the dominant part of the article was the text and not the photograph; and the latter was simply used to illustrate a report of an event that could not itself be regarded as indecent. The tribunal duly considered the relative sizes of the photograph and the text and came to the inevitable conclusion that the former was the dominant in size. The tribunal further held that "In terms of visual effect, the photograph is obviously the 'focus' of the matter." The tribunal went on to hold that :-

"In the photograph, the body of the woman attracts more attention than the body of the man because the photograph shows the front view of her body and the entire breasts can be clearly seen. Although there are 'squares' covering the nipples, the effect of the 'squares' is not obvious. If not transparent, the colour of the squares and the colour of the area around the nipples do not have any difference. The area covered by the 'squares' is so small that the 'twin plum blossoms on the peaks' can still be seen. In such circumstances, it does not make much difference whether the area is covered by 'squares' or not. As a whole, the article has the dominant visual effect of 'nudity' because of the photograph."

The above findings of the tribunal were, in my view, wholly in compliance with the guiding principle in question; and the conclusion as supported by the reasoning could not be faulted. It was clearly applying the dominant effect principle in dissecting the various components of the article. Having dissected the article and comparing the photograph and its visual effect against the text, it was perfectly open to the tribunal to find the photograph to be the dominant part of the article, and, consequently, dominant effect of the article as a whole was one of nudity. There was no merits in this complaint of the appellant's.

Section 10(1)(c)

10. The appellant first complained that the tribunal erred in law in holding that though the article was not "intended" to be published to juvenile, it was "likely to be" published to such a class of persons. However, the appellant abandoned, correctly in my view, this complaint after making a brief attempt to support it. Ming Pao Daily, being indisputably a family newspaper of good reputation would be likely to find its way into the living room of many families that have juvenile members. It would be wholly justified for the tribunal to find as a fact that the article was likely to be published to such a class of persons.

Section 10(1)(e)

11. The guiding principle under s.10(1)(e) required the tribunal to consider "whether the article has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it?"

12. In this regard, the tribunal held as following :-

"Apart from the record-like objects in the background of the photograph, there are only a naked man and a naked woman. This is the only message conveyed by the photograph. Yet the effect of nudity is extremely outstanding and wholly disproportionate to the 'more complicated' message conveyed by the text. This tribunal is of the opinion that the naked man and woman in the photograph cannot provide further illustration or explanation of the text. It is in fact not an 'indispensable' photograph. Assuming that the actual purpose of publishing the article is to report a fact, there is no need to expose the breasts of a woman to the readers. Covering the woman's breasts properly to reduce the degree of nakedness will neither prejudice the effect of the photograph on the text nor reduce the degree of interest of the matter. It is not difficult to do so but the Defendant has not taken such proper step."

The tribunal then concluded that it did not believe the actual purpose of publishing the article was merely to report the message as contained in the text; and that the other purpose was to highlight the nude photograph so as to attract readers.

13. Though the conclusion of the tribunal may perhaps be supported by the state of facts before it, the appellant complained of the error of law in the tribunal's application of an "indispensability test" for the honest purpose principle. It submitted it was wrong in law to hold that for the purpose to be honest, the photograph containing the nudity must be indispensable to the text in that it must provide further illustration or explanation to the text. The respondent did not dispute that such a test was wrong but submitted that on a proper construction of the said part of the tribunal's judgment, no "indispensability test" was intended or used by the tribunal. On the simple issue of construing the judgment of the tribunal, I was left with no doubt that the tribunal did stipulate and apply an "indispensability test" under s.10(1)(e).

14. The fundamental principle must be that every publisher is entitled to publish an article unless so to do would contravene the law. There is no burden on the publisher to show that the article is not in contravention of the law. Thus prima facie an article is publishable until the contrary is proved. This cannot sit well with an "indispensability test". Furthermore, by prescribing a necessity test in the use of photographs as the means of showing an honest purpose, the tribunal was unduly restrictive in its application of the guiding principle. Such a restrictive approach lacked any legal or logical foundation. I failed to see any reason for holding that an intention of using a photograph to enhance the attraction of readers' interest to the news being reported cannot be an honest purpose. If the news being reported concerned naked customers, it would only be reasonable that the photograph appropriate for such news would be customers in the nude rather than fully dressed customers. To a reader, sight of the scene must be better than a thousand words of description. It would indeed be a sad day for publishers if they could not be permitted to juxtapose photographs of the matter being reported unless they first proved a need for it. It would also be a boring life, even for the most serious of readers, if no photograph could be shown without first showing a need for it. I have not the slightest doubt that such a straitjacket was never intended, warranted or required by the law. It would be wrong in law to hold an intent to use a nude photograph to attract the attention of readers to the adjacent text, or to make reading more interesting and enjoyable, could not, under any circumstances, be an honest purpose under the guiding principle for the publishing of an article depicting nudity. However, it would not mean that publishers are free to publish all forms of nudity simply by juxtaposing it to a brief text describing the nudity. Unrestricted publication of inappropriate nudity is restricted by the application of a necessity test in another manner. Though the necessity test ought not be applied in the consideration of use of photograph per se, it could be applied against the manner of exposing the nudity and the extent of nudity in the photograph that would be reasonably justified and required by the text. Depicting nudity in a photograph in an excessive manner unwarranted and not required by the text reporting the news would not give legitimacy to the nudity under the pretext of an honest purpose. The purpose could not be honest in a case of excessive and unnecessary nudity. If the alleged purpose could be achieved by less excessive nudity, there could be no honesty in the use of the excessive nudity.

15. The ultimate question should not be the necessity for the use of a photograph per se, but the use of the photograph in the particular manner in question. In the premises, the emphasis in this issue ought to be the size of the photograph and the failure to properly and adequately obfuscating the inappropriate parts of the naked body so as not to offend the ordinary modesty of the average reasonable man. The tribunal had rightly considered these two aspects of the issue, and in my view, had come to appropriate conclusions that cannot be faulted. To use an ineffective way of obscuring the sensitive parts of the breasts of the naked woman would obviously be paying lip-service to the need to cover up those parts of the human body. The appellant had not disputed that the nipples are sensitive parts of the body that should not normally be subject to public view. A necessity test could be, and should be in appropriate cases, applied to the manner of exposing a naked body, or conversely to the manner of covering up offending parts of the naked body and the adequacy of the method deplored, in the ascertaining of the honesty or otherwise of the purpose. The tribunal concluded that the interest of readers would not be lessened if the breasts of the naked woman in the photograph had been sufficiently covered. Use of a wholly inadequate manner of covering up leaving the offending parts of the body still adequately visible to remain offensive, coupled with a unreasonably large photograph in the circumstances, would reasonably justify a conclusion of a lack of an honest purpose for using such a photograph; and accordingly, a conclusion that the text was used as a camouflage to give legitimacy to the dominant purpose of publication of indecent materials. Had the sensitive parts of the breasts of the naked woman in the photograph in question been properly covered up, and/or the sizes of the photograph been more modest, in all likelihood the tribunal would have held in favour of the appellant on the issue in question.

16. However, the error in making reference to an "indispensability test" to the use of photograph per se had brought inevitable doubts to the propriety of the methodology applied. This would unavoidably affect the validity of their ultimate conclusion on the issue to an extent that it must be set aside. The tribunal was wrong to apply the "indispensability test" and the determination on indecency must be set aside on that ground alone.

17. For reasons above, the appeal was allowed and the determination of the tribunal was set aside accordingly. An order was made for the matter to be referred to the tribunal to be reheard on the issue of indecency in accordance with a direction on law that in applying the guiding principle under s.10(1)(e) to ascertain whether an honest purpose existed for the publication of the article, it is not necessary for the publisher to show that the publication of the allegedly offending pictorial part of the article was indispensable to the text of the same in that it would further illustrate or explain the same. An intent to use the allegedly offending pictorial part of the article to enhance the interest of the readers, or to draw attention of the readers to the matter being reported or published, can in appropriate circumstances be an honest purpose for the purposes of the section. The determining factor in a case where the pictorial part of the article depicts offending views is whether there exists justification or need for such offending parts to be revealed to public view in the particular manner adopted by the publisher. In the context of the present case, the real issue is the justification and need for the nude photograph to be published with that degree of disproportion in relative sizes between the pictorial part and the accompanying text; and without more effective obfuscation to render less visible, and hence less offensive, such parts? If there is a lack of such justification or need, it would directly go to the honesty of the alleged purpose. In the premises, if the tribunal concluded that the alleged purpose to enhance interest of readers, or for the attraction of attention of readers to the text of the article, could be adequately achieved even with the nipples and surrounding aureole completely and fully blackened to render the underlying colour invisible, it would be open to it to conclude that the alleged "honest" purpose lacked legitimacy and was nothing but a camouflage for ulterior motives.