Dear Ally Gray, EmuBands,
Re: Hong Kong – UK Distributor Should Reverse Global Censorship of Pro-Democracy Anthem
We, the undersigned 31 human rights organizations and practitioners, write to express our profound concern about your company’s recent decision to remove the pro-democracy anthem ‘Glory to Hong Kong’ from your global distribution partners. The move to take down the song from streaming platforms such as Apple Music, iTunes, and Spotify may constitute complicity with this arbitrary infringement of the freedom of expression and access to information. Your decision appears based on a flawed understanding of a court order in Hong Kong, which does not adhere to international human rights law concerning acceptable restrictions on the freedom of expression, and certainly does not apply extraterritorially. You have acknowledged “[your company] are not experts in the issues involved and would not wish to insult anyone’s intelligence by pretending.” As experts, we urge you to immediately reverse the arbitrary ban and resist future pressure to reimpose such a ban.
We note that a few days after the imposition of your ban, DGX Music, the artists behind the content, successfully found a new distributor to resume global access. In their statement, they noted that, “unjustified repression will not silence the people, and even if we lose our instruments and our accompaniment, even if we lose a publisher, our pursuit of freedom and democracy will never end.” Now, even though DGX Music has found a new distributor, we still express our alarm at your decision and flawed understanding of the Hong Kong decision.
On 8 May 2024, the Hong Kong Court of Appeals reversed the High Court’s July 2023 decision, which ruled against the ban over concerns of possible ‘chilling effects’ on free speech, and instead invoked the National Security Law to call on intermediaries not to provide access to the 2019 protest song ‘Glory to Hong Kong’ with the intent of ‘inciting others to commit secession,’ ‘with a seditious intention,’ as to ‘misrepresent it as the national anthem’ or to ‘suggest that [Hong Kong] is an independent state’, among others. Even the vague and overbroad decision is clear that the song itself is not explicitly illegal.
While flawed, the injunction does allow for exemptions, which we worry you have failed to take into consideration in imposing your ban. The judgment holds that the ‘[o]rder does not prohibit any lawful acts in connection with the Song, whether its melody or lyrics or in combination, conducted for purposes such as academic activity and news activity, provided that they do not involve any of the acts as set out [above].’ However, by imposing a global ban across all of your distribution partners you make it impossible for anyone to access the song even for such purposes deemed lawful under the already restrictive injunction.
Furthermore, the injunction invokes the highly-problematic National Security Law (NSL) as its basis. For example, the injunction draws on the certificate issued by the Hong Kong Chief Executive issued under NSL Article 47, which empowers the executive to make unilateral determinations regarding national security that are binding upon the court, a distinct infringement on the independence of the judiciary.
The injunction’s reliance on the NSL raises serious human rights concerns in light of the documented crackdown in Hong Kong since the Law came into force in 2020. This is why, in its Concluding Observations on the fourth periodic report of Hong Kong in November 2022, the UN Human Rights Committee called on Hong Kong to ‘repeal the current National Security Law and, in the meantime, refrain from applying it.’ More recently, the UN Committee on Economic, Social and Cultural Rights in its March 2023 Concluding Observations on the third periodic report of China, including Hong Kong, recommended Hong Kong ensure that the NSL does not arbitrarily interfere with the independence of the judiciary and that it must be reviewed to bring it in line with its economic, social and cultural rights obligations.
To this end, decisions based on the NSL, such as the injunction, should be treated under the same concerns and opposed due to its incompatibility with international human rights law. We are therefore concerned that your actions, as such, may constitute complicity with this arbitrary infringement of the freedom of expression and access to information, under both UK and international human rights law.
Article 10 of the United Kingdom Human Rights Act 1998, protects the right to freedom of expression and to receive and impart information regardless of frontiers, including through public protest, the arts, and online. This is likewise enshrined in the European Convention on Human Rights, Article 10, incumbent upon all Council of Europe member states. Article 19 of the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) establish the right to freedom of expression and access to information.
International human rights law holds that the freedom of expression may only be limited under strict circumstances, based on the principles of legality, legitimacy, and necessity and proportionality. Vague or overbroad restrictions are never permissible. National security may only be used to protect the country’s existence against the threat of force, and never to protect the government from embarrassment or the exposure of information. Restrictions must be based on a direct and immediate link between the expression and the protected interest, and specific, tailored, and the least intrusive means capable of achieving the same limited result.
The UN Guiding Principles on Business and Human Rights (UNGPs), furthermore, calls on businesses to avoid ‘causing or contributing to adverse human rights impacts through their own activities’ and to carry out human rights due diligence to identify, prevent, and mitigate any adverse human rights impacts. The UNGPs also calls on companies to side with international human rights principles when faced with conflicting requirements.
For these reasons, the Global Network Initiative, the leading multistakeholder forum for freedom of expression and privacy at the intersection of technology and human rights, has expressed its concerns with the injunction and the risks it poses to human rights in Hong Kong and extraterritorially.
Your company’s removal of the song from its global distributors has been opposed by the artists. Since the 8 May ruling, acts of solidarity in protest of the injunction have taken place in the UK, with more planned moving forward. As such, we draw your attention to the potential reputational risks faced in the UK and elsewhere as a result of the ongoing ban.
To this end, we ask that you publicly disclose any communications between your company and the Hong Kong authorities regarding global distribution of ‘Glory to Hong Kong’, that you publicly disclose information on any human rights impact assessments or other decision-making leading up to the imposition of the ban, and that you immediately reverse the arbitrary ban, resume distribution across global partners, and resist future pressure to reimpose a global ban.
Sincerely,
Access Now
ARTICLE 19
Assembly of Citizens’ Representatives, Hong Kong (ACRHK)
China Aid Association
Chinese Human Rights Defenders (CHRD)
Citizen Congress Watch (CCW)
Committee for Freedom in Hong Kong Foundation (CFHK)
Covenants Watch 人權公約施行監督聯盟
Democracy for Hong Kong (D4HK)
Doublethink Lab
EngageMedia Collective
424 Foundation
FIDH – International Federation for Human Rights
GreatFire
Hong Kong Centre for Human Rights
Hong Kong Democracy Council (HKDC)
Hong Kongers in San Francisco Bay Area
Hong Kong Labour Rights Monitor (HKLRM)
Hongkonger in Deutschkand e.V.
HongKongers in Leeds
Hong Kong Watch
Human Rights in China (HRIC)
Judicial Reform Foundation 財團法人民間司法改革基金會
Kit Chan
Lady Liberty Hong Kong
Netherlands for Hong Kong
Open Net
Re-Water CIC
Ricker Choi
Safeguard Defenders
Taiwan Labour Front 台灣勞工陣線