On 8 May 2024, three Hong Kong Court of Appeals justices ruled in favour of the government’s 2023 appeal to allow a ban on broadcasting or distributing the protest anthem ‘Glory to Hong Kong’. The decision is a reversal of the High Court’s July 2023 opinion, which warned such a ban risked having a chilling effect on free expression. ARTICLE 19 warns that a ban will have a particularly silencing effect on online expression by compelling internet intermediaries to prevent access to the song on their platforms. The judgement also includes provisions that raise questions about the risk of international censorship outside of Hong Kong borders.
The government’s position seeking a court order last year appears to follow global tech companies’ indications that they would require a court order to act on censorship demands. Last July, Hong Kong’s Secretary for Innovation, Technology and Industry, Sun Dong, stated that ‘since you brought up a legal issue, let’s use legal means to solve the problem’. The situation raises serious concerns over the arbitrary use of Hong Kong’s legal system to mask the pursuit of non-human rights compliant actions behind a veneer of legality and legitimacy.
Michael Caster, Asia Digital Programme Manager, said:
‘This is a blatant example of Hong Kong’s embrace of digital repression. Blocking “Glory to Hong Kong” is not merely a violation of Hong Kong’s obligations to promote and protect the freedom of expression and information under the International Covenant on Civil and Political Rights, but the harbinger of further attacks on internet freedom if Hong Kong is not held accountable today.
‘By arbitrarily going after foreign tech companies and effectively forcing them to become parties to censorship, Hong Kong authorities have shown their true colours and thrown out all pretence of adherence to human rights and internet freedom. Global tech companies must speak out immediately against attempts to control internet intermediaries and broader efforts to use national security laws as a pretext for censorship and surveillance in Hong Kong.
‘The Court’s ruling will force global tech companies to abandon their responsibilities under the UN Guiding Principles on Business and Human Rights, which, among other things, compel them to side with international human rights law when there is a conflict with local laws. There is no doubt that this ruling represents exactly this conflict and must be treated as such. Internet intermediaries and the global tech community must follow their human rights commitments and draw a red line, lest they become complicit in Hong Kong’s further descent into digital repression.
‘Considering most of these companies are US-based, Congress should call for testimony from their executives about such red lines. This must involve addressing concerns over whether tech companies may have enabled the injunction by signalling to Hong Kong authorities that they would comply with censorship orders if they were based on “local laws” regardless of their adherence to international law. Congress should also ask about the kind of communication that has taken place between the companies and the Hong Kong government and raise concerns over the lack of transparency.’
Background
Efforts by Hong Kong authorities to pressure foreign tech companies to censor search results for the ‘Glory to Hong Kong’ protest anthem have been ongoing, since at least the 2020 National Security Law. However, the current case began in earnest in late 2022. In December 2022, Hong Kong’s Security Secretary Chris Tang said the government would seek to ‘correct’ Google’s search algorithm concerning results for ‘Glory to Hong Kong’. Hong Kong’s Chief Executive John Lee reiterated the message that the government would seek to pressure Google to alter its algorithm to bury the activist anthem. Google, for its part, in 2022 refused to change its search results to accommodate the demands of the Hong Kong government. However, the company appeared to leave the door open to cooperation if the Hong Kong government showed the content was illegal. In June 2023, Hong Kong authorities sought the first court order to ban the song, which was initially refused by the Court. The government appealed in August last year following pressure from pro-Beijing lawmakers.
For more information
Michael Caster, Asia Digital Programme Manager, [email protected]