Thursday, August 03, 2023

[Nikkei Asia] Hong Kong must choose between its economic and security goals

Hong Kong must choose between its economic and security goals

Judge's decision on protest anthem puts ball back in government's court

Charles Mok is a visiting scholar at Stanford University's Cyber Policy Center and former legislator in Hong Kong.

Amid a comprehensive overhaul of Hong Kong's political, educational and social institutions to emphasize patriotism toward China, the city government has been embarrassed by a series of incidents over the past year involving overseas sporting competitions.

In each case, organizers of events featuring local competitors mistakenly broadcast "Glory to Hong Kong," a popular song written during the city's 2019 social unrest, instead of the Chinese national anthem. In response to indignant complaints from the Hong Kong government, the organizers usually apologetically referenced Google search results for "Hong Kong national anthem" that spotlighted "Glory."

This led the government to demand that Google alter its search results to ensure that the Chinese national anthem, "March of the Volunteers," would show as the top result, but the U.S. technology company rejected the idea of interfering with its normal global search algorithm.

After months of outcry from pro-Beijing legislators and media outlets and some partially successful moves to boost the Chinese anthem's popularity in Google's search results, the government asked a Hong Kong court last month to issue an injunction against the broadcast, performance, publication, sale or distribution of the "Glory" song or any derivatives.

The court application included over 30 links to videos involving the song on Google's YouTube service, making clear the company would be an early target of the injunction.

The decision to go to court exemplified the delicate political balance that the authorities have been trying to strike between what are seen as national security issues and Hong Kong's global economic image and interests. Beijing has underscored its expectations that Hong Kong will safeguard national security but has also made clear that it does not want to see the city's role in the national and global economy diminished. (And while Beijing permits the city its own flag, currency, border controls and separate representation in international sports, no city anthem has been allowed.) 

The anthem case is not the first in which the government sought an injunction to try to limit access to or remove online content.

Amid the unrest in 2019, the authorities won an injunction against online content advocating violence. Those found to be in violation of the order can be charged with contempt of court. This injunction is even more broad and vague than the one sought for "Glory."

After the government filed for the injunction on "Glory," companies that would be affected -- such as Google, iTunes owner Apple and Meta, parent of Facebook and Instagram -- stayed quiet. None filed a response in court to the injunction request as they would often do in democratic jurisdictions like the U.S. or Canada. Instead, the song disappeared for days from iTunes and other prominent audio platforms.

Most observers expected the court to grant the injunction without fuss, after which it seemed likely that Google and others might hide the song from Hong Kong search results. But instead, High Court Judge Anthony Chan last week rejected the government's request.

He cited concern about a possible "chilling effect" on the freedom of expression of innocent people who "might be discouraged from legitimate activities involving the Song for fear of the severe consequences of breaching the Injunction."

But the judge made clear that this was not the reason for his rejection of the injunction request, as he embraced the government's view that national security should be prioritized. Rather, Chan said that the Hong Kong National Security Law, adopted by China's legislature in 2020, already gave the government the power to prosecute offenses related to "Glory," making an injunction unnecessary.

Yet the government has pointedly not prosecuted Google or other platforms under the National Security Law. It did lobby Google privately, but officials may have concluded that a criminal case would have drawn too much negative attention from the U.S. and other foreign nations.

Hong Kong may now choose to appeal Chan's decision but may find it difficult to find solid ground to challenge his ruling. The authorities may also seek again to persuade Google and its peers to take action, but the platforms may be even more recalcitrant in the wake of the court decision.

Alternatively, officials could seek to indict Google but this would damage the already-feeble confidence of international companies in Hong Kong and China, which both are keen for the economic support of foreign business.

For now, the American Chamber of Commerce in Hong Kong, among other such organizations, has said it "welcomes the court decision on the injunction, which shows that judicial independence is in place to underpin the global competitiveness of Hong Kong."

This shows how the unexpected turn of events may have helped the government's case for spinning a "positive Hong Kong story" and highlights its dilemma in further pursuing the case.

The government may still decide to take the path of seeking legislation, or intervention from China's National People's Congress, to specifically ban "Glory." For this reason, the suggestion that the court decision is a victory for internet freedom could be shortsighted.

At this point, the matter is more than a legal issue, and instead an illustration of the hard choices the Hong Kong authorities are having to make under the pressure of slowing economic momentum in the city and in mainland China. Indeed, economic needs may be the only thing really holding Hong Kong back from the unlimited expansion of its national security drive.

Published by Nikkei Asia, August 2, 2023


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