OPTF

Dialogues on digital rights: Teardown of Hong Kong’s internet freedom

This article is a part of a series of essays commissioned by the OPTF, written by people from all around the world. 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.

For decades, Hong Kong has maintained one of Asia’s freest Internet environments, despite being a part of China. As a special administrative region, reverted to Chinese sovereignty since July 1, 1997, Article 30 of Hong Kong’s Basic Law(1) guarantees the freedom and privacy of communication of residents. 

But such freedom has not come without challenges. Over the years, Hong Kong’s government has made some attempts to curtail such freedom. In 2012, it launched a consultation of the Control of Obscene and Indecent Articles Ordinance (COIAO) (2), the territory’s pornography regulation, in which the authority initially proposed the implementation of a mandatory “operator-level content filtering,” that was fortunately abandoned after opposition from the public and the Internet community(3). 

Then, in 2016, after years of consultation and legislative attempts by the government to update its digital copyright protection regime, an amendment bill was shelved following weeks of filibustering by opposition lawmakers, reflecting widespread public mistrusts of the government’s intention, as it tried to criminalise online derivative works of copyrighted materials, despite the promise of exemptions for parody(4). 

Defending Internet freedom, before National Security Law

To be fair, these legislative attempts were not dissimilar to actions taken by many western governments to regulate the Internet for reasons of public security, illegal content or intellectual property protection. Yet, the fact that they failed stood as a testament of Hong Kong’s former vibrancy and pluralism of its civil society and legislature, even if the political system was far from truly democratic.

Nevertheless, a question always stands on many people’s mind — will China’s Great Firewall be extended to Hong Kong? Fortunately, Hong Kong’s telecommunications environment has been completely liberalised for more than two decades, allowing investment and licenses for international operators, compared to China’s external Internet gateways, which are still strictly controlled by state-owned enterprises. Furthermore, Hong Kong being a hub of telecommunications, underseas fibre optics and datacenter facilities, as well as an international financial centre, has made it more difficult for China to impose the same mainland-style restrictions, at least until more recently. 

With few legal or operational mandates to censor the Internet, for more than twenty years Hong Kong’s Internet was indeed among the freest in Asia. But such advantages were hardly guaranteed without a democratic system of government. Over the years, as the political situation in Hong Kong turned more oppressive, local netizens were becoming more worried of looming crackdowns on the online freedom of expression they enjoyed. 

For example, in 2014, during the Umbrella Movement, when a large part of the Central business district was occupied by protestors for months, there were rumours abound that the government would shut down the area’s cellular wireless coverage. Although such a shutdown did not materialise, countless citizens downloaded an app called FireChat, which would enable them to communicate with one another over Bluetooth, even if all mobile or Wi-Fi networks were disabled in an affected area(5). As there was no shutdown after all, most people never got to use the app. 

Fast forward to the territory-wide protests in 2019, ignited by the unpopular “extradition bill” proposed by the government. Protesters relied heavily on the use of Internet tools and messaging platforms, most notably Facebook and Telegram, to share information, as well as to organise and mobilise. More controversially, some protestors posted personal information of police officers and government officials on the Internet, followed by government supporters retaliating by doing the same, only on a much bigger scale, resulting in a proliferation of doxxing by both camps. The government resorted to accusing protesters of causing harms to the police, government officials and their families, and sharing “fake news.” 

On October 31, 2019, the government applied for and was granted an injunction from the High Court, prohibiting anyone from communicating through “any Internet-based platform” any materials that “promotes, encourages or incites the use or threat of violence, intended or likely to cause” bodily injury or property damage. Besides the injunction being too broad and too vague, the use of such legal manoeuvre to obtain a court injunction effectively enabled the government and law enforcement to easily and conveniently bypass the legislature to impose online censorship unseen in Hong Kong before. 

The Internet Society Hong Kong(6), concerned(7) about establishing the precedence for arbitrary content deletion and prosecution, the chilling effect on netizens, and the detrimental impact on the territory’s Internet freedom, applied to the court for discharge or restrict the injunction(8). Unfortunately, on November 15, the High Court ruled to continue the injunction, with minor amendments to its terms to emphasise the wilfulness of the act(9). The injunction remains active, as part of the growing arsenal of censorship tools that law enforcement can use in Hong Kong. 

NSL: the next chapter, but not the last

Next came, of course, the National Security Law (NSL). With the implementation rules of the NSL (10) taking effect on July 7, 2020, the NSL, in effect from July 1 — not passed in Hong Kong but imposed from the central government in Beijing — allowed simply an authorised “designated police officer” to order. the takedown of messages or content on any electronic platform that was deemed “likely to constitute an offence endangering national security or is likely to cause the occurrence of an offence endangering national security,” by the relevant platform, hosting or network service providers. Failing to comply, the service provider could face the seizure of their electronic device, plus fines and prison terms of up to six months. Moreover, Hong Kong’s chief executive could authorise the police to intercept communications and conduct surveillance to “prevent and detect offences endangering national security.”

The gross lack of transparency and oversight of the NSL, and the vague and arbitrary scope for what it is meant by “likely to constitute an offence” are obviously problematic, to say the least. And such concerns have since been manifested in the blocking of politically sensitive websites such as HKChronicles (a wiki-like website with details of police officers and pro-Beijing individuals), June 4th Online Museum, a number of Taiwanese websites, and most recently, Hong Kong Watch (a human rights group based in the U.K.)(11). As a matter of routine, the police would not even comment or acknowledge whether the blocking of such websites was made based on the application of the NSL. 

In addition, the government also amended the Personal Data (Privacy) Ordinance in September, 2021, to empower the regulator to investigate and prosecute acts of doxxing, but without strengthening the overall protection for data and privacy of all citizens, leading to concerns of selective enforcement and political weaponisation of privacy protection(12). Furthermore, there were also a number of cases where administrators of various Telegram channels or groups were belatedly arrested, charged and sentenced to hefty jail time for “inciting riots” during the 2019 protests(13). All these have added to the silencing of critics in Hong Kong, as a mood of self-censorship has settled in. 

The future is grim

So, what next? With the secretive national security police apparatus estimated to number  4,000 local officers, not even including any agents or officers from the mainland, clearly they must find ways to keep themselves busy. Expect more expansive application of the NSL, offline and online, local and abroad — as the law asserts jurisdiction over anyone, anyhow, anywhere, even if such persons have never been to Hong Kong. For instance, it is now legally possible for the Hong Kong authority to demand social media companies to remove content it deemed undesirable even if such companies’ servers or offices are not even located in Hong Kong(14). 

Moreover, the interpretation for what constitutes national security will also look to be wildly expanded as the regime sees fit. Already, Stand News, a leading pro-democracy online news outlet, was closed down, after its editors were arrested for “inciting hatred toward the Hong Kong government.” Recently, two storeowners were also arrested by national security police on charges of sedition because of their anti-vaccination posts on social media(15). 

But Beijing and Hong Kong authorities will not stop with just the NSL. The government and local pro-Beijing politicians who now completely dominate the rubber-stamp legislature are calling for the establishment of a “fake news law,”(16) which is likely to happen in 2022, even though the territory’s corps of pro-democracy media have all but been totally eliminated. In addition to further stifling any shred of independent journalism and press freedom remaining in Hong Kong, such law may finally completely silence the users on social media platforms, such as Facebook and Twitter, as well as messaging platforms, like WhatsApp and Telegram, while putting those platform companies in the untenable position of having to carry out government censorship. 

To conclude, in the immediate to intermediate term, short of implementing a full-scale Great Firewall of Hong Kong, China seems to be borrowing a page from the Russian playbook. After all, Russia, similar to Hong Kong, has previously allowed the presence of foreign platforms, and not all its Internet traffic were filtered or censored. But Russia recently enacted a law to ban “false information,” such as calling its Ukraine invasion a “war,” with a punishment of up to 15 years in prison. This is similar to Beijing’s strategy in Hong Kong. In the long run, sadly, Hong Kong is undoubtedly treading toward the model of outright China-styled censorship and surveillance. 

Citations

  1.  https://www.basiclaw.gov.hk/en/basiclaw/chapter3.html : “The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.”
  2. Consultation document: https://www.gov.hk/en/residents/government/publication/consultation/docs/2012/2nd_RCOIAO.pdf 
  3. Internet Society Hong Kong responses to the second round consultation of the COIAO: https://www.coiao.gov.hk/submission/00769.pdf
  4. Hong Kong government’s shelving of controversial copyright bill: what went wrong? https://www.scmp.com/news/hong-kong/politics/article/1917070/hong-kong-governments-shelving-controversial-copyright-bill
  5. FireChat – the messaging app that’s powering the Hong Kong protests https://www.theguardian.com/world/2014/sep/29/firechat-messaging-app-powering-hong-kong-protests
  6. The author was the founding chair of Internet Society Hong Kong, in 2006.
  7. Internet Society Deeply Concerned about Interim Injunction Ordered by Hong Kong High Court https://www.internetsociety.org/news/statements/2019/interim-injunction-ordered-by-hong-kong-high-court/
  8. Internet Society Hong Kong’s Legal Challenge Against Govt’s Injunction of Blocking Free Speech Online https://www.isoc.hk/news/jr-against-online-censorship/
  9. Interim Injunction Order of the High Court (HCA 2007/2019) – Promotion, Encouragement and Incitement of the Use or Threat of Violence via Internet-based Platform or Medium https://www.police.gov.hk/ppp_en/03_police_message/iio_202.html
  10. Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region gazetted https://www.info.gov.hk/gia/general/202007/06/P2020070600784.htm
  11. Internet censorship in Hong Kong https://en.m.wikipedia.org/wiki/Internet_censorship_in_Hong_Kong
  12. “The Downfall of Hong Kong’s Privacy Law” by the author https://thediplomat.com/2021/09/the-downfall-of-hong-kongs-privacy-law/
  13. Hefty jail term for Hong Kong Telegram channel admin convicted of inciting riot, arson and violence during 2019 protests
    Alleged Telegram channel administrator charged with inciting arson against police facilities, denied bail https://www.scmp.com/news/hong-kong/law-and-crime/article/3099336/hong-kong-protests-alleged-telegram-channel 
    Student arrested for being admin of social media group supporting Hong Kong protests https://www.taiwannews.com.tw/en/news/3723417
  14. Hong Kong’s national security law: 10 things you need to know https://www.amnesty.org/en/latest/news/2020/07/hong-kong-national-security-law-10-things-you-need-to-know/
  15. Covid-19: Hong Kong national security police arrest 2 for sedition over anti-vaxx posts https://hongkongfp.com/2022/02/25/covid-19-hong-kong-national-security-police-arrest-2-for-sedition-over-anti-vaxx-posts/
  16. Hong Kong’s call for ‘fake news’ law raises media crackdown fears https://asia.nikkei.com/Politics/Hong-Kong-s-call-for-fake-news-law-raises-media-crackdown-fears 
    【假新聞法】研究上半年完成或將立法 記協質疑定義模糊難執法兼限制資訊流通 https://www.rfa.org/cantonese/news/htm/hk-fakenews-02152022065023.html