Hong Kong: the Flickr'd photo that got blogger Oiwan in trouble

Yesterday I blogged about the case of Oiwan Lam, a well-known blogger in Hong Kong (Links: 1, 2, 3, 4) who's facing the possibility of a year in jail or a $HK 400,000 fine for having linked to an image deemed offensive by authorities. That image (a non-pornographic, artistic nude) was shot and published by none other than Jake Appelbaum, whose work has been blogged here on BoingBoing many times. Cropped detail of the offending image shown above, click here for the full photo (hazmat warning: contains breasts).

Oiwan reached out to Jake for help via Flickr mail. She blames the photo-sharing site's recently implemented content rating/blocking system in part for the legal situation she now faces in Hong Kong.

Jake believes the program, as implemented, amounts to censorship, and that it helps governments which are already unfriendly to online free speech limit that speech more efficiently. He writes:

The photo in question is mine. It is this url. This comment was left shortly after the linking. I believe this is the original article in question.

Sadly, the key part of that comment is this:

Lam said that the photograph was taken from the international
photography site 'flickr' (see Nude and Captured") and was an art
photograph around which the discussion was totally technical in nature.
"It will not arouse immoral, obscene thoughts." Flickr itself has not
received any complaints to have the photograph removed. Lam said that
she will not remove the photograph, although the InMedia editorial board
has not reached a decision yet. She said: "Whether something is a work
of art should be determined subjectively instead of just counting how
many naughty bits is being exposed."……

Why is this sad? Because recently, I was contacted by Oiwan Lam. I was
told that because my account is now rated as 'unsafe' by flickr, this
seems to render their previous argument about obscenity inaccurate. It's
considered obscene by both the Chinese government censors and the
censors at flickr.

Quoting Lam:

however, when flickr introduced its filtering system around
mid june, they have flitered away your photos in hk. and the
local authority put back the case to the tribunal for
classification in june 22. where, they have classified it
as indecent.

As I understand that statement, it is because of Flickr censoring my
account that the tribunal moved forward with their prosecution. A direct
result of censorship on Flickrs part. Flickr doesn't like the word
censorship but that's just what they're doing.

Let me be clear: Flickr
is instituting a global censorship program that allows for regional
censorship of photos. As a Flickr user, I was not informed that I fell
into such a program or even in fact that such a program existed.

Flickr won't even respond to my emails about the specific problems with
my account or as to why it's being filtered. It took outsiders
contacting me before I realized I was being censored. I managed to get a
form letter about how I could go through all of my photos and ask for a
re-review. I did this and most, if not all of my photos are properly
tagged. Still, I wasn't told of any specific offending photos. My
re-review included the the previously mentioned photo that's causing Lam
so many problems. After writing several more emails, I am still waiting
to hear back. Flickr doesn't seem to care.

As I'm currently traveling in Romania, I don't have time to write them
daily. My connection here is limited. Their censorship of over 17,000 of
my photos is absurd. I don't have 17,000 photos of porn. I have hardly
any nude photos at all by comparison to the larger body of my work
hosted on Flickr.

First it was journalists who used Yahoo! mail and now it's people who
merely link to their property. Though this is certainly a case of an
unintended consequence of being a censor, it's important to understand
the wide ranging issues behind becoming a censor. They're about to be
complicit in putting another (Thanks Yahoo!) Chinese citizen behind bars
as an unintended consequence of their attempts to grab foreign markets.
Their desire to internationalize has caused them massive problems in
Germany.

I personally know two dozen Germans that cannot access my work,
the same is true in Austria. The reason according to Flickr is that they
have to comply with German law, so naturally they just include Austria
as collateral damage. Imagine the joy this causes as I am a member of
monochrom and work in Vienna with
various groups such as the Metalab. Why does flickr
subject Austrian users to German law? A glitch? The law? Or a taste of
what's to come? Is this so called legal compliance or just a broad
stroke of the censor?

Until users create new accounts with fake addresses outside of Germany,
Austria or Hong Kong, they can't even view my photos if they wanted to
do so. No amount of clicking about. This is probably happening in more
than these three countries but I can't confirm it. A Canadian friend of
mine reported some problems but it was just the new default filter
system and it was possible for him to click through eventually. He
merely had to dig through his preferences to find that Flickr had
helpfully enabled filtering of all the photos he could see. To be clear,
this was new. Now by default, everyone (and not just new accounts) has a
filter enabled that blocks so called 'unsafe' accounts. It may also
block 'moderate' accounts, I'm unsure. All of this was without notice
and all of this goes without direct comment beyond some simple nonsense
form letter about reading their community guidelines. I've read them, I
tag and flag my images. I think it's silly but I've tried to play by the
rules.

However, I find all of this extremely frustrating. I do not like that my
choice in photo hosting is now possibly going to cost a person their
freedom. I don't care why they linked to my photos, it's a hyperlink to
some conceptual art. Yes, it has nudity but it's clearly labeled as
such. It's not pornography, it's art. This photo was specifically chosen
because it was tastefully created by working with a professional model,
a professional rope rigger and myself, arguably, a professional
photographer. This isn't pornography or obscenity by any reasonable
measure of either.

It's made me seriously question why I'm using Flickr at all. I am a
paying customer but I don't think I'll be renewing my account now that I
realize how unreasonable they are. I know Flickr (as well as Yahoo!) has
some amazing people on staff and I'm aware they're doing some
interesting stuff. The jailing of journalists in China was the line
crossed by Yahoo. This censorship crosses the line for Flickr.

Flickr should make this right for everyone involved. They should
unfilter my account (as well as the rest of the flickr users), properly
apologize in public for censoring me and help Oiwan Lam with the legal
assistance needed to stay out of jail. This may mean paying the insanely
high fine. I think that's a reasonable way to resolve it considering the
moneybags parent company Yahoo. The bottom line of their company
shouldn't be censorship of so called questionable material to attract a
larger market. They should actually support their so called community.
They claim they're complying with local law but really, they're doing so
much more as we can see. They're directly affecting local law. They're
becoming the judge and jury about what was obscene or what is obscene.
They're complicit in an even larger censorship system and this is
outrageous.

Previously: