Freedom of the Press

1
Freedom of the Press

• Prof Johannes Chan
• Dean, Faculty of Law
• The University of Hong Kong

2
Sources of Protection for Freedom of Expression
and the Press

• Common Law
• Statutory protection (Bill of Rights, Art 16)
• Constitutional protection (Letters Patent, VII
  before 1997, Basic Law, Art 27)
• International law (ICCPR, Art 19)

3
Common Law Protection

• Residual principle in the common law
• International treaty showing the direction of
  development of common law (Cheung Ng Sheong
  Steven v Eastweek Publisher (1995) 5 HKPLR 428)
• Narrow approach of interpretation of existing
  limits on common law restriction on freedom of
  expression (Cheng Albert v Tse Wai Chun 2000 4
  HKC 1)
• Protection of sources of information (John Sham v
  Eastweek Publisher Ltd 1995 1 HKC 264)

4
Statutory/Constitutional Protection

• The Bill of Rights Regime (Bill of Rights
  Ordinance, the ICCPR as applied to Hong Kong, and
  the Letters Patent)
• Basic Law, Art 39

5
The General Framework The Rights

• Everyone shall have the right to freedom of
  expression this right shall include freedom to
  seek, receive and impart information and ideas of
  all kinds, regardless of frontiers, either
  orally, in writing or in print, in the form of
  art, or through any other media of his choice.

6
The Rights

• Right to receive information
• no right of access to official information
• Rights of both speakers and listeners
• Horizontal effect? (Steven Cheung case also see
  Hong Kong Polytechnic University v Next Magazine
  (1996) 7 HKPLR 286 Tse Wai Chun v Law Society,
  CACV 3174/2001 (11 Sept 2002))

7
The Scope

• Art 16 applies not only to information or ideas
  that are favourably received or regarded as
  inoffensive or as a matter of indifference, but
  also to those that offend, shock or disturb the
  State or any section of the population. Such are
  the demands of that pluralism, tolerance and
  broadmindedness without which there is no
  democratic society.

8
The General Framework The Restrictions

• The exercise of this rights carries with it
  special duties and responsibilities. It may
  therefore be subject to certain restrictions, but
  these shall only be such as are provided by law
  and are necessary
• (a) for respect of the rights or reputation of
  others or
• (b) for the protection of national security or
  of public order (ordre public), or of public
  health or morals.

9
Permissible Restrictions

• Provided by law
• Legitimate objectives
• Necessity

10
Provided by Law

• Accessibility (the China Airline case Chim Shing
  Chung v Commissioner of Correctional Services
  (1996) 6 HKPLR 313)
• Foreseeability (eg resumption of land for public
  purpose in the now repealed Crown Law Resumption
  Ordinance)
• Safeguard against abuse (telephone interception)

11
Legitimate Objectives

• Rights and reputation of others (defamation,
  privacy)
• National security
• Public order (ordre public) (Flag case, Wong
  Yeung Ng case)
• Public health or morals (obscenity)

12
Necessity

• Means to be adopted should be proportionate to
  the objectives to be pursued
• Minimal interference
• The more drastic the measure, the stronger the
  justifications and the greater the safeguard
  required
• Margin of appreciation
• Pluralism, tolerance broadmindedness

13
The General Framework Affirmed

• Ming Pao Newspapers Ltd v AG (1996) 6 HKPLR 103
  (ICAC investigation)
• A constitution is to be given a generous and
  purposive construction
• Any restrictions on the right to freedom of
  expression which constitutes one of the essential
  foundations of a democratic society must be
  narrowly interpreted
• Any restrictions on the right to freedom of
  expression must be proportionate to the aims
  sought to be achieved

14
National Security Art 23

• A well-planned campaign at the beginning but
  poorly sustained and sadly downgraded to threats,
  polarisation and labelling
• 7 mortal sins (treason, secession, subversion,
  sedition, seditious publication, theft of state
  secrets, proscription of local political
  organizations affiliated to Mainland political
  organizations)
• Wide police powers

15
Issues

• Why is existing law inadequate?
• Why not a White Bill?
• How rights and freedoms are compromised under the
  proposed law?
• Would the power of the court be weakened?
• Why increases the power of the police?

16
Sedition

• Inciting others to cause violence or public
  disorder which seriously endangers the stability
  of the state or the HKSAR
• Cf inciting others to commit an offence against
  the person or property or unlawful assembly

17
Theft of State Secrets

• Unlawful disclosure of information relating to
  relations between the Central Government of the
  PRC and the HKSAR
• Unauthorized and damaging disclosure by
  unauthorized access
• No defence of information already in the public
  domain?

18
Improvements

• Jury trial
• Consent of Secretary of Justice to prosecute
• Requirement of corroborating evidence
• Time limit for prosecution
• Public interest defence

19
The End of the Beginning?

• A well established regime which ties to
  international standard
• Court is reasonably vigilant in upholding free
  press
• Censorship and threats/potential threats
• Devil in the details?