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Wednesday, May 05, 2021, 00:55
Media shouldn't think they are above the law
By Tony Kwok
Wednesday, May 05, 2021, 00:55 By Tony Kwok

In the recent court case where a program producer of Radio Television Hong Kong was convicted of making a false statement to deceive the Transport Department in obtaining vehicle registration details, the Hong Kong Journalists Association, together with a number of anti-China media and academia commentators, immediately decried the verdict hysterically with criticisms like “This is the darkest day in Hong Kong!”, “Hong Kong press freedom is dead!” etc.

Press freedom, like all other freedoms, is not unrestricted. Otherwise, journalists would be operating above the law and immune to legal sanctions when they break the law in the course of their work. The conviction of the RTHK producer is a clear case of deception, supported by indisputable evidence. I would be surprised if the defendant dares to launch an appeal because the chance of its success is zero! 

Hong Kong media should have learned from their previous challenge against the Independent Commission Against Corruption over Section 30 of the Prevention of Bribery Ordinance. They labeled it a “press gag law” because it forbids everyone, including the media, from disclosing any details of an ICAC case still under covert investigation, including the identities of the suspects or details of the complaints. In 1995, one Hong Kong media organization launched an appeal to the UK’s Privy Council, then the court of final appeal for the British colony, challenging this legislation as a breach of the Bill of Rights, which includes press freedom. The Privy Council affirmed the section as being consistent with the Bill of Rights, and that it was necessary to protect the integrity of the ICAC investigation; to prevent the suspects from absconding or tampering with evidence; and at the same time to protect the reputation of the suspects. The last objective is particularly important, as there was always a possibility that the ICAC investigations were based on false and malicious complaints. It would be most unfair to the suspects, who could be influential businessmen or senior government officials. If their identities were prematurely exposed, it may have an adverse impact on the financial market. This is one of the first local laws to protect the innocent against fake reports.

Press freedom, like all other freedoms, is not unrestricted. Otherwise, journalists would be operating above the law and immune to legal sanctions when they break the law in the course of their work

If we were to launch an official inquiry into the cause of the movement against the proposed fugitive rendition bill amendment and the social unrest in 2019, there is no doubt it would find the troves of fake news then flying around in local media and social media that had played a pivotal role in inciting public participation in the subsequent social unrest and street violence.

One typical fake news alleged that the police had brutally killed six people inside the Prince Edward MTR Station during its operation on Aug 31, 2019, and secretly buried their bodies in the Sha Ling burial ground for the unknown.

Despite denials from the police, the ambulance service and the Hospital Authority, and with the MTR disclosing the CCTV footage inside the station, the fake news persisted. On one hand, it reflects the naive and gullible nature of some members of the public. On the other, it exposes the irresponsible behavior of the media, who undoubtedly knew this was a fabrication designed to hurt our police force. Yet it kept stirring the issue and urging the public to attend a monthly memorial service performed in honor of the alleged unaccounted-for police victims at the MTR station for many months, which invariably resulted in street violence.

Then there was the totally baseless story of a woman allegedly shot in her eye by police, but kept hiding from the public, instead of allowing her injury to be examined and her allegation verified by the authorities. What’s even more baffling was that many medical staff held public demonstrations in hospitals while shielding one of their eyes with their hands as a gesture of solidarity and to condemn “police brutality”. On looking back now, I believe most of them would regret their naivety and lack of professional judgment! There were also numerous fake reports of rapes and sexual assaults by police officers inside police stations or detention centers, but none of the victims would cooperate to have their allegations verified. It was undoubtedly fake news but that did not stop the media from regurgitating it to their respective readers or viewers.

One recent example was cited by High Court Judge Esther Toh Lye-ping in denying bail to Andy Chui Chi-kin, one of the 47 defendants facing national security charges. It’s a YouTube video submitted as evidence by the prosecution. It was posted by Chui shortly after the enactment of the National Security Law for Hong Kong, in which he claimed that Chinese military vehicles had been deployed on the streets of Hong Kong. The judge commented that Chui made “unfounded assertions using emotive and antagonizing language, even after the enactment of the NSL, obviously with a view to causing fear and inciting hatred.”

Commissioner of Police Chris Tang Ping-keung should rightly be concerned and angry with the propagation of such incendiary fake news, especially when its obvious intention was to incite hatred against the police force. It had resulted in many of his officers and their family members being doxxed and their privacy being invaded. He quite rightly announced recently that the police will investigate such malicious fake news and would take action if it is proved that they were designed “to incite hatred or divide society, with the eventual result of harming national security”. He told then-TVB host Michael Chugani on Straight Talk on April 20 that a law against fake news would help protect national security. “I think it’s good to have such a law … to assist the national security and assist us to make Hong Kong safer.”

Chief Executive Carrie Lam Cheng Yuet-ngor has also vowed to legislate against disinformation, accusing some media outlets of “vilifying and distorting” her administration’s statements. Even today, there is numerous fake news flying around to discourage people from getting vaccinated against COVID-19.

So how to draft a new law banning fake news? Actually, there are many precedents in different countries, such as France and Germany, that we can learn from. But the best reference is probably Singapore, as it has a common law system similar to Hong Kong’s.

Singapore introduced The Protection from Online Falsehoods and Manipulation Act (POFMA) which came into effect on Oct 2, 2019. The POFMA is intended to tackle growing concerns over the scourge of fake news and misinformation, communicated particularly through various online and social media platforms. Offenders can be subject to a fine of up to S$1 million (US$750,000) and 10 years’ imprisonment.

The opposition against a fake news law is largely based on two arguments. Firstly is the difficulty inherent in defining what constitutes fake news; and secondly, the difficulty in targeting the law against the wide coverage of the media.

The solution to the first point can be found in the Singapore legislation. Fake news is defined in POFMA as “false statements of fact or misleading information, which a reasonable person seeing, hearing or otherwise perceiving them would consider as representations of fact.” It also emphasized that the law is not intended to cover opinions, criticisms, satire or parody.

On the second point, Section 7 of the POFMA makes it clear that fake news in itself will not constitute an offense. The fake news has to be “likely to be prejudicial to Singapore’s security, public health, public safety, public tranquility or public finances; or influence the outcome of elections, or incite feelings of enmity, hatred or ill-will between different groups of persons; diminish public confidence in the government”. Therefore, the prosecution has to have sufficient grounds to prove these two elements of the offense before prosecution can proceed.  

The Singapore legislation seems comprehensive and can easily be adopted in Hong Kong, but it must expand its remit to cover the local conventional media as well. In order  to be fair, Hong Kong’s draft legislation would ensure that all allegations of fake news should be independently assessed, and the final determination should rest with the courts.

Finally, fighting fake news will not work without putting the media industry under reasonable regulations against abuse. Its absence has allowed irresponsible media organizations like Apple Daily to publish fabrications practically on a regular basis without being held to account. The cumulative effect of 23 years of such unprofessional practice has generated untold conflict within the community and hatred against the establishment. Many countries now have independent press councils to monitor media organizations to ensure that they abide by the established Code of Practice. Another function of press councils is to thoroughly examine all complaints from the general public against the press. The United Kingdom set up the Independent Press Standards Organisation in 2014. Ireland established the Press Council of Ireland in 2007 and the Office of the Press Ombudsman in 2008 to deal with public complaints. It is about time Hong Kong should have an independent statutory press council. It should have four major functions. Firstly, taking over from the Hong Kong Journalists Association the registration of journalists in Hong Kong. Secondly, it should also take up a similar role as the Broadcasting Authority in the drafting of a Code of Practice for journalists and media organizations. Thirdly, the registration of local newspapers. Fourthly, receiving public complaints against the press and imposition of disciplinary action against journalists, newspapers as well as social media accounts. Hong Kong media should no longer be allowed to hide behind the pretexts of “editorial independence” and “freedom of speech” to spread fake news with impunity.  

As the police commissioner has commented, any person today who still thinks that there is no foreign interference in Hong Kong affairs must be insulting the intelligence of all Hong Kong residents! Just look at the US Strategic Competition Act of 2021, under which the US would spend US$10 million to support the so-called “Hong Kong democracy”. We can be sure that a large portion of this sum would go into the pockets of their media agents in Hong Kong. A cleansing operation on the evil media and local journalists acting as foreign agents is therefore what Hong Kong needs most at present to secure permanent peace and harmony in our society.

The author is an adjunct professor of HKU Space, a council member of the Chinese Association of Hong Kong and Macao Studies, and the former deputy commissioner and head of operations of ICAC.

The views do not necessarily reflect those of China Daily.

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