The Next Chapter for Hong Kong’s digital repression: Total judicial cooperation

Charles Mok is an internet entrepreneur and IT advocate. He was formerly a member of the Hong Kong Legislative Council and founded the Hong Kong chapter of the Internet Society. He is currently a Visiting Scholar at the Global Digital Policy Incubator at Stanford University. 

In a bizarre case of government censorship aided by the court in Hong Kong, five speech therapists were sentenced to 19 months in jail for “conspiracy to print, publish, distribute, display and/or reproduce seditious publications.” The evidence? A set of illustrated print children’s storybooks depicting a village of sheep resisting wolves invading their village. The judge found that the books were part of “a brainwashing exercise with a view to guiding the very young children to accept their views and values,” and the authors intended to “bring into hatred or contempt or to excite disaffection” against the local and central government.

The case did not involve online content, but it clearly showed that the red line for the freedom of expression in Hong Kong has been lowered to an extremely perilous level, with full corroboration of the court in censoring expression, and indeed, thought, in Hong Kong. Regardless of what they say and how it is said, no expression is truly safe for residents of Hong Kong. The court seems to have determined to guarantee that government prosecution will score a perfect record of convictions. Yet, some activists appear to be determined to keep on going, as one of the defendants in the children’s storybook case said in court, that her “only regret was that she had not published more picture books before her arrest.”

Such will and resolve from civil defenders may be one reason why the Hong Kong government is still planning for a further series of legislative proposals, to be nominally consulted and then most likely speedily passed in what is currently a rubber-stamp legislature, designed to rein in online expression in Hong Kong.

Case in point is the recent consultation for a new cyber-crime law, which has sparked much concern from both the Internet sector and users. For instance, under the category of illegal access to program or data, Hong Kong’s law reform commission recommended that “mere unauthorized access should be criminalized as a summary offense, which does not require malice to be an element of the offense, subject to the statutory defense of reasonable excuse.” The commission also recommended raising sentencing for many offenses from two years to fourteen years. The maximum sentence for the aggravated offense for illegal interference with computer data and a computer system may even be life imprisonment. In short, these proposed changes are about easier prosecution and harsher punishment. 

And a series of other new laws are slated to be proposed, too: a new cybersecurity law “to protect critical infrastructure,” a new anti-misinformation law, and another new law to regulate online and offline crowdfunding activities, an amendment for the local rules for the national security law imposed by the central government, and the preparatory work for yet another new local version of national security law. There are several reasons for the rush for new laws. Such laws targeting cybersecurity, misinformation and also cyber and data sovereignty have already been established in many other parts of the world. In Asia alone, similar laws have appeared in Vietnam, Singapore, Indonesia, India and, of course, China itself, are becoming the norm, putting pressure on freedom of expression for both the users as well as the social media or messaging platforms. Even western democracies are doing the same, and it has become very easy for autocratic regimes to justify their digital repression by claiming to be, first, targeting cyber-crimes and protecting cybersecurity, and, second, that they are only following the examples of western democracies.

The laws can be similar, but it is the level of democratic oversight, judicial independence and the rule of law that will make the difference. In the self-proclaimed “perfected” political system in Hong Kong, with “full cooperation” of the executive, legislative and judicial branches of government, these laws will be passed quickly by the legislature, and once enacted, the court will also likely cooperate with the administration in way of their judgment. 

Under such an atmosphere, those who still choose not to self-censor will face increasingly perilous situations. Another recent case saw the administrators of the Facebook group “Civil Servants Secrets” – who were themselves government workers –  arrested by national security police on possible charges relating to “acts with seditious intention.” What made some of these postings in the group — mostly gossip or grievances about the government as a workplace — seditious? Some messages were said to “promote feelings of ill-will and enmity between different classes of the population of Hong Kong.”

One of the hallmarks of political arrests in Hong Kong is that these cases almost invariably involve the police confiscating the suspects’ mobile phones and personal computers, sometimes both personal and work, to “search for evidence.” In the “Civil Servants Secrets” case, national security police actually raided the government office of the suspect, taking away all their personal and work phones and computers. While the public often asks whether the social media platform, such as Facebook in this case, may have provided information and data to the police, the reality is that the police may not bother with getting such data from social media platforms. Everything is already sitting on the phones and computers of those arrested for the police to harvest.  In this regard, the users’ devices remain the weakest link when it comes to law enforcement abuse. Meanwhile, a number of other Facebook “secrets” pages were “voluntarily” removed to avoid getting their administrators into trouble.

Are these laws, arrests, charges and court convictions silencing activists, civil defenders and journalists? Yes, particularly when the courts are no longer seen to be independent and respect the rule of law. Unfortunately, what happens in Hong Kong is not unique, as digital authoritarian trends are rapidly expanding in Asia and many other parts of the world. What stands out for Hong Kong is only how far it has fallen in such a short period of time, from a relatively free society with a vibrant press and civil society, to a highly repressive regime. May this be a reminder for the rest of the world of the fragility of online freedom of expression, how easily it can be lost. 

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