By David Ellis (partner) and Stephen Bureaux (solicitor)
The UK Court of Appeal in R v (1) Graham Westgarth Smith, (2) Mike Jayson (2002) held that mere internet browsing of web-pages, or opening of emails, containing indecent photographs of children is an offence under English Law (s1.(1) of the Protection of Children Act 1978). Hong Kong law differs from English law in this respect. The nearest equivalent legislation being the Control of Obscene and Indecent Articles Ordinance, which does not prohibit viewing of obscene material.
The Court in this case held that the act of voluntarily downloading an indecent image from the internet to a computer screen, or opening an attachment that contained an indecent image of a child so that it was displayed on the screen, was an act of making a photograph or pseudo-photograph because the computer's operator, in so downloading, was causing the image to exist on the screen. The other necessary requirement is that the act of downloading should be a deliberate and intentional act with the knowledge that the image was, or was likely to be, an indecent photograph or pseudo-photograph of a child.
Merely viewing child pornography would not be an offence under Hong Kong's Control of Obscene and Indecent Articles Ordinance. Although child pornography is classified as obscene (and not merely indecent), it is only an offence if publication is involved. Accordingly, sending an email with an attachment containing child pornography would be an offence - but merely viewing it would not.
Companies should ensure that they have appropriate policies in place to ensure that their computer systems are not used to publish or view child pornography or other indecent or obscene material.
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