Oiwan Lam, a local media activist and blogger, faces a criminal record, a fine of up to $400,000 and up to one year in jail. Why? Because in May she posted an artsy waist-up photo of a nude woman at Inmedia Hong Kong (www.inmediahk.net), a non-profit ‘citizen media’ website. She did this to protest recent rulings by Hong Kong’s Obscene Articles Tribunal (OAT) which she believes were unreasonable. OAT then ruled her protest article to be indecent, category II.

OAT and the Television and Entertainment Licensing Authority (TELA) have been in the news a lot of late: a student publication at the Chinese University of Hong Kong is fighting an obscenity ruling after publishing a sex survey in May. Soon after that a Hong Kong man was arrested and convicted for posting a link to a pornographic website in the adult section of a local online discussion forum. Most recently, TELA recommended that a book be withdrawn from the Hong Kong book fair on account of the classic French painting of Cupid Kissing Psyche (1798) on its cover – an incident which the local media covered with great derision.

Oiwan says she posted her artsy topless photo as an “act of civil disobedience” for two reasons: to protest OAT’s obscenity ruling against the Chinese University students, and also to protest the porn link case – a case which many fear will serve as precedent for holding people criminally liable for directing attention to material published online by others. She says she chose a photo she found on Flickr, an international photo-sharing website, because she believed that, while it might technically be against Hong Kong’s indecency rules, it was “not against the law, as the photo is artistic, from a global website that is not pornographic in nature and has their internal guidelines.” (Flickr later censored that photo to Hong Kong account holders – but before she received her indecent ruling. Yahoo!, Flickr’s parent company, has yet to explain exactly why.)

If the Hong Kong people feel strongly that images of women’s nipples must never be shown in public media or public spaces, who are outsiders to judge? But it would seem that community values here are much more liberal than that, given that statues of a naked man and woman – with breasts and male genitals prominently exposed – have been on display outside Times Square in Causeway Bay this summer without any consequences for whoever put them there, and that HK government agencies publish sex education cartoons depicting sexual organs online without public outcry.

Still, one could ask, “If Oiwan gets away with posting a picture of a topless woman on Inmedia Hong Kong, doesn’t that give all the Hong Kong tabloids carte blanche to publish topless girlie pix all over the place?”

I, for one, hope not, since Oiwan’s case is different. Oiwan published her article on a serious – one could even say ‘earnest’ – non-profit website, as part of a political argument. She had no commercial motive and wasn’t using the picture to boost her website’s traffic. Whether the Obscene Articles Tribunal will take this context into consideration at her hearing in September, who knows?

It’s also unclear whether negative public reaction to TELA’s Cupid and Psyche debacle might help her. The Chinese-language press recently quoted official sources as saying that works of art will no longer be ruled indecent. If that’s true, whether Oiwan can convince OAT that the photo she used was art, not smut, is unclear.

Still, Oiwan clearly knew she was taking a risk by posting a photo of un-pixelated nipples even in a non-profit, rhetorical context. “My guess was that the current bureaucratic procedure would deem this photograph to be indecent,” she says. But does she deserve a criminal record for having done so? Might there be some other way for TELA and OAT to draw the line? Might it be possible to keep tabloids from publishing topless women everywhere – without at the same time turning edgy media activists into criminals?

Despite a long, expensive legal battle ahead, Oiwan says she plans to fight her indecency ruling all the way to the High Court if necessary. She believes that un-transparent, unaccountable bodies like TELA and OAT need to change. “The complaint mechanism has been abused by conservative groups for quite long,” she says. She also believes that indecency and obscenity rulings can be used as a “gap through which political censorship can be introduced”.

Hong Kong is not mainland China – where journalist Shi Tao is serving a 10-year jail sentence because he sent some information about government media control measures to an overseas website through a Yahoo! e-mail account. Nor is Hong Kong nearly as bad as Malaysia, where a blogger was recently held in police lockup for several days because of an anonymous comment related to corruption that somebody posted on his blog. Hong Kong people enjoy considerable freedom of speech. But will it stay that way if people like Oiwan are treated like criminals when they try to question and challenge the decisions of government regulators?

Rebecca MacKinnon teaches journalism at the University of Hong Kong. She is co-founder of GlobalVoicesOnline.org, an international bloggers’ network which employs Oiwan Lam as North East Asia Editor. Updates about Oiwan’s case can be found on her blog at RConversation.com.