Freedom of expression is NOT under threat by Bob Allcock, Solicitor General
Freedom of expression in general, and freedom of the press in particular, are hallmarks of Hong Kong's open and pluralistic society. Recently, concern was expressed, both in Hong Kong and elsewhere, that these cherished freedoms would be curtailed by the proposed laws to implement Article 23 of the Basic Law.
The Consultation Paper makes it absolutely clear that this will not be the case. If the proposals are enacted, freedom of expression will continue to be fully enjoyed in Hong Kong. Let me refer to each of the proposed offences and explain why this is so.
The proposed new offence of treason will be narrower than the existing offence. It will therefore impose no new restrictions on freedom of speech. The only situations in which words could amount to treason under the proposals would be where the words instigate a foreigner to invade the PRC or assist a public enemy at war with the PRC. For example, if China is at war with a foreign country, and a Hong Kong permanent resident broadcasts propaganda for the enemy, he may be convicted for assisting that enemy. This result is entirely defensible and should not be a matter of concern.
The proposed offences of secession and subversion will both involve levying war, the use or threat of force, or criminal action which falls within the definition of "serious unlawful means". None of these elements can be the result merely of words. Again, freedom of speech is not touched.
The new offence of sedition does relate to spoken and written words, but only those that incite others to commit -
- treason, secession or subversion, or
- acts of violence or of public disorder that seriously endanger the stability of the state or the HKSAR.
Moreover, offences relating to seditious publications will be limited to those that are likely to incite treason, secession or subversion.
A person only "incites" another to do something if he encourages or otherwise pressures that other person to do it, and intends that the other should do it. For example, if someone encourages another to assist a public enemy at war and intends that the other should do so, this will be incitement to commit treason.
How will this affect comments, news-reporting and academic discussion of sensitive issues? It is hard to imagine any impact at all.
The expression of an opinion, the reporting of news, and academic discussion may not be intended to encourage action by anyone. If they are so intended, they will normally encourage lawful action. No offence will be committed under the proposed new laws in such circumstances.
However, statements must not incite people to commit any of the three offences or acts described above.
Incitement to commit treason is an existing offence. The proposed new offence involving such action will not impose any new restrictions on freedom of speech.
The offences of incitement to commit secession or subversion do not currently exist under those names. However, most of the acts that would be caught by them would now amount to incitement to commit treason, or would be one of the existing treasonable offences. Those acts that do not amount to such offences will involve inciting another -
- to commit criminal acts amounting to "serious unlawful means",
- to use, or threaten to use force, or
- to commit acts of violence or of public disorder.
Inciting a person in these ways will almost invariably amount to an offence under existing law.
What about the theft of "state secrets", which has been another area of concern to journalists? The answer should again be reassuring. The current law, found in Official Secrets Ordinance, will remain basically unchanged. That Ordinance is based on UK legislation and deals both with "spying" and unauthorized disclosures.
"Spying" involves a narrow band of activities that are done for a purpose prejudicial to the safety or interests of the state or of Hong Kong. The offence primarily targets information that is likely to be useful to an enemy.
The offences relating to unauthorized disclosure mainly affect public servants and government contractors. They are prohibited from disclosing four categories of information ("protected information") unless they are authorized to do so. The four categories relate to -
- security and intelligence
- international relations
- the commission of offences and criminal investigations.
In relation to the last three of these categories, an offence is committed only if the disclosure is damaging. The Ordinance explains what damaging means. For example, the disclosure of information relating to criminal investigations is damaging if it results in the commission of an offence, helps a prisoner to escape, or impedes the prevention or detection of offences, or is likely to have such an effect. With very few exceptions, the unauthorized disclosure of such information in other circumstances would not be damaging and would not be an offence.
Members of the public or of the media who disclose protected information commit an offence only if their disclosure was without lawful authority, and
- the information came into their possession through an unlawful disclosure or entrustment,
- they knew, or had reasonable grounds to believe, that the information was protected, and had come into their possession in that way, and
- in the case of the first three categories, the disclosure was damaging and they knew,
or had reasonable cause to believe, that it would be damaging.
These existing offences are extremely narrowly drawn. Only limited categories of information are protected, and it is for the court to decide whether particular information falls within them. Neither the Central Authorities or the Hong Kong SAR can simply classify a document as "secret" and thereby claim protection of the Ordinance.
Some commentators have, however, called for a relaxation of the law, arguing that an unauthorized disclosure should not be an offence if it was "in the public interest". It has been said that a public-spirited whistle-blower may, through an abuse of power, be denied the authority to disclose information that should be disclosed. However, these arguments were recently rejected in an English case decided by the House of Lords. The court held that there were sufficient safeguards in the legislation, and through the availability of judicial review, to ensure that the power to withhold authorisation was not abused and that proper disclosures were not stifled.
The only significant extension of the current law that is proposed in this area is to create an offence of making an unauthorized and damaging disclosure of protected information obtained (directly or indirectly) by unauthorized access. The existing safeguards in respect of unauthorized disclosures by those who are not public servants or government contractors would apply equally to the new offence.
In addition, the existing statutory protection of information concerning relations between the UK and Hong Kong under the definition of "international relations" will be adapted to refer to "relations between the Central Authorities and Hong Kong".
These changes are entirely justifiable restrictions, and should not create any problems for the media. Moreover, each of the proposals are considered to be consistent with the International Covenant on Civil and Political Rights.
Some commentators have suggested that the proposals should also comply with the Johannesburg Principles - a set of non-binding recommendations concerning national security, freedom of expression and access to information. Our proposals are in line with most, but not all, of those Principles. In particular, we have respectfully declined to follow Principle 6 which states that expression may be punished as a threat to security only if the expression is intended and likely to incite imminent violence.
In our view, compliance with this Principle would leave serious and unacceptable gaps in our law. For example -
- inciting people to arm themselves in order to prepare for a secessionist war in the future would not be covered;
- inciting people to hack into a national defence computer system in order to cripple it would not be covered;
In declining to follow Principle 6, we are in line with most common law jurisdictions. Moreover, as Sandra Coliver, a renowned human rights commentator, has pointed out "some of the [Johannesburg] Principles undoubtedly are more protective of freedom of expression than widely accepted international norms".
The bottom line is that the proposals will not have any significant impact on freedom of expression, or freedom of the press, as they are currently enjoyed. As we begin the consultation process, the views of all members of the community, including members of the media, are earnestly sought. If there are still areas of concern, the government will pay attention. We share a common goal of preserving freedom of expression in Hong Kong and, together, we can ensure that this goal is achieved.