Hong Kong Fails to Bar Protest Song in Surprise Court Ruling

Sarah Zheng and Kari Lindberg
·5 min read
4

(Bloomberg) -- The Hong Kong government lost a bid to wipe a controversial protest song from its internet, a rare victory for free speech and internet firms such as Google in a city accused in past years of undermining the rule of law.

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The High Court on Friday declined the government’s application for an injunction to make it illegal for anyone with criminal intent to perform or broadcast Glory to Hong Kong, including the lyrics and melody, on grounds of national security.

The decision hands a surprise defeat to an administration that’s chalked up a string of legal victories against publishers and journalists accused of endangering Chinese national security, which has had a chilling effect on a once free-wheeling global commercial hub.

The government has 28 days to appeal the verdict, as is typical in Hong Kong cases. It will “study the ruling and follow up,” Chief Executive John Lee told reporters at an ad-hoc briefing Friday.

The ruling could help reassure a business community worried about erosion of freedoms in a city critics say is adopting Beijing-style controls, including by silencing dissent. That decision came hours after a report that Washington will bar Hong Kong’s leader from a major economic summit, underscoring pressure from Western governments against what they call a crackdown on civil liberties.

“We welcome the judgment,” said Ronson Chan, chairman of the Hong Kong Journalists Association. A ban would have had a “chilling effect.”

Read more: HK Says US Should Invite Lee to Summit After Report He’s Barred

Hong Kong is trying to re-establish itself on the world stage after violent pro-democracy protests and years of punishing Covid restrictions walloped the local economy and triggered an exodus of talent. Part of that outflow of economic and human capital stems from perceptions the city is hewing closer to Beijing-style rules, which is in turn inflaming tensions between the world’s most-powerful nations.

The US plans to bar Chief Executive John Lee from attending the Asia Pacific Economic Cooperation summit in San Francisco in November, the Washington Post reported Friday, citing sources familiar with the matter. Lee is under US sanctions for his role in an alleged crackdown on Hong Kong’s civil liberties.

Wiping Glory to Hong Kong from the city’s internet would have directly challenged the freedoms that differentiate the former British colony from mainland China. It would’ve also raised the legal risks for Silicon Valley tech giants — from Alphabet Inc. to Apple Inc. and Meta Platforms Inc. — that quit the mainland Chinese market years ago due to onerous censorship demands.

“Perfectly innocent people would distance themselves from what may be lawful acts involving the song for fear of trespassing the injunction which has severe consequences,” Judge Anthony Chan said in Friday’s written ruling. “The court must place great emphasis on safeguarding the fundamental rights of third parties who may be adversely affected.”

Google-parent Alphabet has been pressured by local authorities to change its algorithms because searches on its platform for Hong Kong’s national anthem return the protest song, which is also prominent on the company’s YouTube platform. Google, which has about 500 employees in Hong Kong, has refused to comply.

The case revived broader censorship concerns in the city, raising the prospect that tech firms would have to choose between acquiescing to Beijing or exiting the local market altogether. If companies decided it was too costly to continue operating in the city, it would have fundamentally reshaped Hong Kong’s internet overnight and devastated the open and free business environment it has long prided itself upon.

At the heart of the issue was the longstanding debate over whether social media firms are responsible for content posted by users. Platforms in the US are protected under Section 230, a decades-old liability shield credited with helping the internet flourish.

In Hong Kong, that immunity for tech giants has become an open question. A Beijing-imposed national security law in 2020 handed the government sweeping new powers to police the internet, including issuing take-down requests for material deemed in breach of the law.

In the wake of that China-drafted legislation, Western tech platforms temporarily suspended processing data requests from the city’s government and even Beijing-based ByteDance Ltd. decided to pull the plug on offering its TikTok app locally.

When Hong Kong moved to strengthen its anti-doxxing laws a year later, a tech industry group representing the likes of Google and Facebook warned they would withdraw from the market if local employees were held responsible for online content on their platforms.

Mark Daly, a human rights lawyer in Hong Kong, said after the decision that concerns still remain over the government’s efforts to place restrictions on the free flow of speech and information, given its attempts to seek out the injunction in the first place. “The rule of law, including respect for human rights, requires the proper balance and predictability and this effort seems to be creating more confusion for questionable reasons,” he said.

The Hong Kong government is trying to find ways within the legal system to suppress individual freedoms, something the national security law has given them flexibility to do, said Dongshu Liu, an assistant professor specializing in Chinese politics at City University of Hong Kong.

“If Hong Kong continues the way it has for the past three years, it will be very challenging for the city to maintain its international financial center status,” he said. “I don’t see a clear path for Hong Kong to overcome this challenge.”

--With assistance from Ville Heiskanen and Olivia Tam.

(Updates with the government’s comment in the fourth paragraph)

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