Annual report 2001

Contents
Introduction

Mak Yin-ting, Chair, HKJA
Andrew Puddephatt, Executive Director, ARTICLE 19 2
Conclusions and recommendations

Section 1

CHINA’S SENSITIVITIES 5
The Falun Gong factor 5
Subversion and anti-cult laws 8
Beijing lashes out at Hong Kong media 9
Editor forced to resign 10
Sudden resignation of chief secretary 12
Activist charged with flag desecration 13
Pro-Beijing threats to human rights 13
RTHK: Under renewed pressure 14
Controversy over academic freedom 15

Section 2

LAW REFORM STALLS 18
Policing and the public order controversy 18
Setback for interception laws 19
Journalists fear harsh securities law 20
New broadcasting codes cause controversy 20
Confusion in the pay-TV field 21

Section 3

SELF CENSORSHIP AND ETHICAL PROBLEMS 23
Coverage of the Falun Gong 23
Ethical dilemmas 25
A press council comes into being 26
Other privacy issues 27
Significant libel victories 28

Section 4

NET LOSSES 30
Job losses 30
Lesser offerings 31
The money problem 31
New faces 32
Money finds money 33
Online ad threat 34
Threats elsewhere 35
Traditional media survive the onslaught 35

Acknowledgements

Editors: Charles Goddard and Cliff Bale Contributors: Cliff Bale, Grace Leung Lai-kuen, Gren Manuel and Charles Goddard
c Hong Kong Journalists Association and ARTICLE 19 ISBN 1 902598 43 1

Introduction

This is the ninth annual report on the state of freedom of expression in Hong Kong to be published by the Hong Kong Journalists Association and ARTICLE 19, and the fourth since the handover of Hong Kong to China in 1997. The task has not become any easier. By recent convention we try to begin our introduction by highlighting the positive—that freedom of expression (and associated rights) is still in large measure enjoyed by Hong Kong people—before we discuss our concerns.

While the general conception was that fundamental freedoms, and in particular freedom of expression, would rapidly diminish in the Special Administrative Region (SAR) after 1997, we felt that there was more likely to be an incremental erosion and attrition of this and associ-ated rights (of assembly and association). Our approach was based upon our perception that China and Hong Kong have a mutual interest in conserving, to some degree, the openness and freedoms of this city and thus that the circumscription of the right to freedom of expression was not likely to be sudden and categorical but, rather, selective, targeting issues where China felt special political sensitivities. It turns out this is what is happening.

The year under review has been dominated by the question of how the SAR government deals with the Falun Gong, the spiritual movement banned by the authorities in China. A le-gally registered society, and one moreover which abides by the law, the Falun Gong has nevertheless been the target of a campaign of vilification as the Hong Kong authorities have fallen into line with the central government. Led by the Chief Executive, Tung Chee-hwa, the movement has been described as an “no doubt an evil cult", heretical, devious, political—in fact many of the pejorative terms used by China to characterise the group. The SAR gov-ernment, controversially, has even
begun considering anti-cult legislation.

There has, so far, been more talk than action. It would be damaging to Hong Kong’s inter-national standing to ban or even to restrict the Falun Gong (particularly under present legis-lation, which incorporates human rights safeguards). Hong Kong and China both under-stand this, and there are clear indications that—as long as Hong Kong makes the right noises—it is being allowed to deal with the issue in its own way, at least for the time being. Yet even without “concrete" action, the verbal threats, intimidation and insults hurled at the Fa-lun Gong by the SAR authorities, in our view, represent a serious threat to the open envi-ronment necessary for the rights of freedom of expression, association and assembly to function healthily and normally. In fact, such actions amount to a gross abuse of the gov-ernment’s position and undermine its obligation to safeguard individuals' exercise of their rights under the Basic Law, Hong Kong’s constitution.

This is a profoundly serious matter, and we urge the Hong Kong Government to consider carefully the damage inflicted by such actions to the fabric of human rights in the SAR, and particularly to the associated incremental erosion of the right of freedom of expression. Is-sues where China’s sensitivities are at stake were always going to be the most difficult in handling the SAR’s autonomy within the “one country, two systems" formula. Here too we ask the government to uphold and exercise vigorously the principle of a high degree of autonomy which is guaranteed in the Basic Law, which will otherwise also suffer from slow attrition.

This report covers many concerns which the Hong Kong Journalists Association and ARTICLE 19 have—some of which also relate to China’s sensitivities, others separate—and we include a set of specific recommendations to address these. We ask the Government, in light of its obligation to safeguard and strengthen freedom of expression, to give these care-ful consideration and work with us to exercise safeguards and implement changes in order to guarantee all Hong Kong’s residents the full enjoyment of this right.

Mak Yin-ting, Chairperson, Hong Kong Journalists Association
Andrew Puddephatt, Executive Director, ARTICLE 19

Conclusions and recommendations

The past year under review has once again posed challenges for civil rights, including free-dom of expression, even if the media have continued to report on controversial issues—events in Taiwan and Tibet, the activities of dissidents in mainland China, and more recently protests by the Falun Gong spiritual group, which is banned in mainland China, but legal in Hong Kong.
The Falun Gong question has been the most challenging issue over the past year. Under pressure from the central government in Beijing, some senior Hong Kong government offi-cials, particularly the chief executive, Tung Chee-hwa, have vilified the group in an unwar-ranted manner. The administration has also initiated studies into how other jurisdictions handle so-called cults. What is unclear is whether the Special Administrative Region (SAR) government will move to ban what China considers to be an “evil cult", or whether the (dis-reputable and damaging) threats against the movement are a means to keep Beijing at bay. Our view at present is the latter, but this may change. What is clear is that the shrill rhetoric may, at the end of the day, further limit what is acceptable expression, and indeed acceptable reporting or comment.

There have been further ominous signs in the year under review:

l Warnings from Chinese president Jiang Zemin about the standards and activities of the Hong Kong media;

l The departure under pressure of an outspoken China editor from the South China Morning Post;

l The use of a controversial public order law to exert pressure against demonstrators, includ-ing students; and

l Further prosecutions under laws banning desecration of the Chinese and Hong Kong flags and emblems.

Given these developments and concerns, the Hong Kong Journalists Association (HKJA) and ARTICLE 19 call on the Hong Kong authorities to ensure proper respect for the right to freedom of expression, including by:

Bring laws into line with the ICCPR...

1. Bringing the laws and practice of Hong Kong regarding freedom of expression fully into line with its international human rights obligations, including the International Covenant on Civil and Political Rights (ICCPR).
2. Refraining from enacting any so-called anti-cult legislation. Such legislation would have a far-reaching effect on freedom of expression, in particular for fringe groups, and in any case the authorities have ample means at their disposal to respond to any violent activities. The peaceful expression of views and opinions, however distasteful to those in power, should be tolerated.

...and the Johannesburg Principles

3. Respecting international and comparative standards relating to national security and freedom of expression in the development of any laws under Article 23 of the Basic Law. In particular, the concepts of subversion and secession should be deleted from the Basic Law or, if this is not possible, the authorities must ensure that any laws in this area conform to Principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.

4. Amending other security-related laws restricting freedom of expression and information to bring them into line with the International Covenant on Civil and Political Rights. These in-clude the Crimes, the Official Secrets, the Emergency Regulations and the Public Order ordi-nances.

5. Amending the National Flag and National Emblem and Regional Flag and Regional Emblem ordinances to ensure they can no longer be used to intimidate non-violent protesters simply for desecration of the Chinese or Hong Kong flag or emblem.

6. Strengthen the editorial independence of the publicly-owned broadcaster, Radio Televi-sion Hong Kong (RTHK), including by enacting legislation placing on a formal legal status the autonomy and editorial independence of RTHK, which presently is only guaranteed in administrative terms through the station’s charter.

7. Dropping plans to create a law criminalising the publication of false or misleading informa-tion about financial markets.

8. Enacting freedom of information legislation giving individuals an enforceable legal right to access information held by public authorities. Such legislation should be based on the prin-ciple of maximum disclosure, any exceptions to the law should be limited and narrowly drawn, and the law should establish an effective appeal mechanism.

9. Rejecting any idea of the creation of a statutory press council, which could exert consid-erable pressure on media publications, contrary to international standards.

Urge China to respect Hong Kong’s autonomy

10. Taking all reasonable measures to ensure that the Chinese government and its representatives respect Hong Kong’s autonomy and refrain from interfering in matters affecting freedom of expression in the Special Administrative Region.

We further call on the Chinese authorities to refrain from any action that may curb freedom of expression or inhibit legitimate reporting activities. The Chinese authorities should also repeal all regulations restricting the right of Hong Kong and other journalists to work on the mainland, and should adopt a more open and non-discriminatory attitude to these journal-ists.

The HKJA and ARTICLE 19 note that the Hong Kong media continue to suffer from a credi-bility problem, arising from “ethical" excesses, self-censorship and internal measures to side-line journalists who are especially critical. This credibility problem tends to undermine the ability of journalists to defend their right to freedom of expression and to combat concerted moves by the authorities to introduce measures restricting this right, for example by enacting draconian anti-subversion legislation.

To ease this credibility problem, the HKJA and ARTICLE 19 make the following recommen-dations to the media community:

1. Media proprietors and senior editors should make a clear statement against any form of self-censorship and take measures to combat it within their own media outlets, including by supporting members of their staff who legitimately criticise the authorities.

2. Media proprietors and senior editors should promote better ethical and professional stan-dards by encouraging adherence to the Code of Ethics adopted by four media organisations, including the HKJA.


SECTION 1
China’s sensitivities
THE FALUN GONG FACTOR

Last year Taiwan, this year the Falun Gong

Patriot games, our last report, highlighted how Taiwan had become a sensitive issue in the SAR, and how the media had come under pressure for reporting—and giving space and airtime to—the views of those who oppose the central government’s line on Taiwan (that it is an inalienable part of China). In the period covered by this report (July 2000 to the present) the concern has shifted—to the Falun Gong, the spiritual movement (it says it is not a religion) banned by the authorities in mainland China, but which remains a legally registered society in Hong Kong.

The last six months, particularly, has seen the Falun Gong become the target of an escalating campaign of vilification by the SAR administration, using language and terminology that is similarly pejorative in nature—and often indeed the same—as the central government’s own harsh characterisations of the group. Most recently, at a question-and-answer session in the Legislative Council on June 14th, the chief executive, Tung Chee-hwa, raised the invective a level by describing the Falun Gong as “no doubt an evil cult", and one moreover which was well organised and political in nature; hitherto, in his view, the movement had warranted the lesser description of “more or less bearing some of the characteristics of an evil cult".

China banned the Falun Gong (sometimes referred to by its formal name, Falun Dafa) in July 1999, claiming it to be an “evil cult" whose teachings were responsible for 1,500 or more deaths. That the movement has become the latest target of the Chinese Communist Party-led government has little to do, of course, with its practices and ideology (it appears, on the face of it, to be a peaceable organisation which practices meditation and qi gong, or breathing exercises), much less so with the heinous cultish personality the mainland authorities have painted of it. Rather, it was the Falun Gong’s size and level of organisation—manifested by its ability (partly via email and the Internet) to gather several thousand followers in a surprise demonstration outside the party headquarters in Beijing—that rang alarm bells. If the Falun Gong could protest with impunity the (alleged) official maltreatment of its practitioners, what of other unexpected but more conventionally political challenges to CCP authority and one-party rule?

For China, it is politics not religion

In its crackdown on the Falun Gong, China has made it clear it is not simply rejecting the group as an “evil cult" (though, certainly, this is one key part of the message; historically such populist movements have had an inordinately large impact on national affairs). More important is the signal that it will not tolerate any similar groupings planning to challenge the party’s political authority, no matter how peripherally. Human rights groups report the subsequent persecution of the Falun Gong as considerable: thousands, possibly tens of thousands of practitioners, according to Amnesty International, were in detention at the end of 2000, while it is believed that up to 100 may have died as a result of torture or maltreatment by the police and other detaining authorities (229 according to the Falun Gong itself). Remarkably Falun Gong followers have continued to stage protests in China, though these have become more sporadic of late.

Hong Kong appeared initially to be immune from the crackdown, even while the city became the main refuge of the movement within China. Reportedly Falun Gong activists in the SAR, acting in concert with a network of counterparts overseas, provided support for followers on the mainland, including shelter from arrest—much to the irritation of the central government. Throughout 1999 and much of 2000, however, China refrained from public criticism, much less from suggesting or ordering any kind of ban on the movement in the SAR. Such an af-front to the “one country, two systems" arrangement, to Hong Kong’s promised high de-gree of autonomy, clearly was considered disproportionate at the time.

But the atmosphere of (contrived) tolerance was changing, or rather about to be changed. The Falun Gong last year received approval from the Leisure and Cultural Service Depart-ment to hire the City Hall for a global conference, to be held in January 2001. There were conditions—broadly that the venue not be used for political purposes, and that posters pro-testing the alleged deaths of followers in China not be displayed (in and of themselves an unwarranted restriction on freedom of expression)—but even so the mere fact that the Falun Gong was to meet on Hong Kong soil, and on government-controlled soil no less, would prove to be the catalyst for criticism by Hong Kong’s pro-Beijing media (which generally re-flects, or airs, the central government’s views and policies, and is usually supportive of Hong Kong government policies). The Beijing-funded Ta Kung Pao openly questioned the wisdom of allowing the meeting: “Will Hong Kong be used as a centre for hosting Falun Gong activities? Will it become a subversive base for overturning the Chinese government by overseas anti-Chinese forces?"

Against this increasingly hostile backdrop, some 40 Falun Gong followers were arrested or deported on December 21st from neighbouring Macau where China’s president, Jiang Zemin, was visiting. Mr Jiang warned ominously that neither Macau nor Hong Kong should be used for activities which were harmful to China.

The SAR steps in against the Falun Gong

The turning point, though, was to be the conference. Some 1,200 Falun Gong members attended an emotional gathering at which China was accused, among other things, of torturing to death 120 followers. Under pressure from an intensifying anti-Falun Gong campaign on the mainland, and growing criticism among the pro-Beijing media of the handling of the global conference, the SAR government in turn accused the Falun Gong of straying into politics, violating the conditions for hiring the hall. The Falun Gong denied any wrongdoing, saying they were only “pointing out the truth". Prior to the conference 13 Falun Gong members had been prevented from entering Hong Kong, though the government claimed this was because of problems with visas and travel documents, not because of who they were (it also denied there was a Falun Gong blacklist). To their credit, though, the authorities did allow several hundred practitioners to march on January 13th to China’s Liaison Office in Hong Kong.

But clearly China was incensed. A barrage of attacks ensued in the pro-Beijing media, fol-lowed closely by a direct warning from Beijing through a spokesman in the Liaison Office. “The central government," the spokesman said (as he was quoted in the semi-official China News Agency on January 30th), “will not allow any organisation or anyone attempting to turn Hong Kong into a centre for Falun Gong activities and using Hong Kong as an anti-China base, damaging ‘one country, two systems' and Hong Kong’s stability and prosper-ity." A foreign ministry spokesman reiterated this warning almost verbatim on February 5th.

Unconcerned, apparently, as to the impact such actions might have on perceptions of Hong Kong’s autonomy and freedoms, the secretary for security, Regina Ip Lau Suk-yee, weighed in too with the Hong Kong government’s own new resolve on the matter. It was to keep a close watch on the Falun Gong, Ms Ip said. Her comment came closely on the heels of an in-cident in late January in Tiananmen Square, Beijing, in which, purportedly (according to the Chinese state media), five Falun Gong members set themselves on fire in a joint suicide at-tempt (the Falun Gong has said the victims were not its followers).

“More or less...an evil cult"

Mr Tung, too, felt the (alleged) self-immolation gave special cause for the government “to have a responsibility to be alert and to follow developments closely." He went further, still, describing the Falun Gong on February 8th as “more or less bearing some characteristics of an evil cult", moving one step closer to Beijing’s own description. The SAR government, he continued, “will not allow anyone to abuse Hong Kong’s freedoms and tolerance to affect public peace and order in the HKSAR, or public peace and order in the mainland." Strong words, but the pressure from Beijing and its allies in Hong Kong for the SAR to ban the group, as in China, was especially acute, drawing a weak Mr Tung inexorably into the fray.

In early March, the landscape appeared to be shifting again. The Asian Wall Street Journal (AWSJ) quoted political analysts as saying that they believed a deal, or accommodation, had been struck between Beijing and Hong Kong on the matter. The first sign appeared to be a cessation of the verbal hostilities from China and its Hong Kong allies. President Jiang Zemin told Hong Kong reporters, too, that while he was of no doubt that the Falun Gong was an evil cult, “[T]he question in Hong Kong would be handled by Mr Tung."

A tacit understanding?

One analyst, Lau Siu-kai, an academic at Chinese University and a former advisor to the Chinese government, noted that the understanding appears to be that Mr Tung will only criticise and marginalise Hong Kong’s 500-strong Falun Gong (a well-worn mainland strategy of isolating and attacking those it opposes), though will take no concrete action as such. “Beijing is moderating its pressure on the Falun Gong in Hong Kong," Mr Lau told the AWSJ: “They want to avoid giving the impression they’re applying pressure on Mr Tung." Nor too does the chief executive wish to jeopardise international confidence in the “one country, two systems" principle, Mr Lau argued. Both sides, indeed, seemed suddenly to be concerned to preserve the appearance of Hong Kong’s autonomy vis-a-vis Beijing, which hitherto had been seriously weakened by perceptions that the SAR was simply following the flag on the Falun Gong issue.

The basic tenor of this understanding has not yet changed. The Hong Kong government has continued since March to attack the Falun Gong verbally, even on occasion stepping up its campaign of isolating and marginalising the movement here as political conditions dictate. In an effort, possibly, to head off concerns among pro-Beijing allies that the Falun Gong not be allowed to disrupt the visit of President Jiang to the Fortune Global Forum in the SAR on May 8th, the chief executive again went on the attack. The activities planned by the movement in and around the forum, he said on April 25th, “go beyond purely religious activities or physical exercise; they represent a deliberate move to undermine the relation-ship between Hong Kong and the central government; these activities interfere with the smooth conduct of the forum, go against the interests of the HKSAR and its people, and are unacceptable to the community." Despite the rhetoric, the Falun Gong was treated very much as other demonstrators, albeit this has itself raised serious questions as to Hong Kong compliance with international human rights standards.

“No doubt an evil cult"

Similarly, the chief executive appeared to raise the ante again on June 14th when, at a Legislative Council question-and-answer session, he described the Falun Gong as “no doubt an evil cult", and vowed to step up surveillance. At the same time he noted that this was not the time for legislation against cults, referring to the growing controversy over the government’s efforts (initially secretive) to study overseas anti-cult legislation with a view to considering whether there was a need to enact similar laws. Banning the Falun Gong would be a severe blow to Hong Kong’s autonomy and self-government.

There has been a great deal of tough talk but so far little real action. Yet this is not to dimin-ish the damaging consequences of the government’s verbal attacks, threats and insults against a peaceable, legally registered and law-abiding society. In acting in such a way, the government has used extra-legal means to apply pressure on the Falun Gong to retreat, make itself obscure, even disband (threats of surveillance, for example, conceivably put pressure on families in turn to dissuade practising Falun Gong relatives). It has indeed abused its ob-ligation to the community to uphold and protect basic human rights, and has seriously un-dermined (in a deliberate and manipulative fashion) the open environment necessary for the rights of freedom of expression, association and assembly to function healthily and nor-mally.
The SAR government, moreover, has used these “extra-legal" means before. Recall its hos-tile campaign against students who were working to change restrictive public order legisla-tion, and against Chinese migrants fighting a legal battle to remain in Hong Kong. In both these cases, as with the Falun Gong, it raised a cynical campaign of whipping up public opinion against a single, isolated group. It sought to influence media coverage, and thus to control public opinion through disreputable means (though it is debatable whether this has been effective).

Undermining Hong Kong’s fragile autonomy

That the government is prepared, expediently and selectively, to run roughshod over human rights in Hong Kong is a profound concern. That it acts in complicity with China in persecuting a lawful and peaceful society is a considerable shame. China’s actions towards the Falun Gong, in the first instance, are deeply antithetical to human rights. Secondly, as many critics—among them democratic legislators, religious leaders and human rights groups—have pointed out, by subserviently falling into line with the central government the SAR has gravely undermined the basis for Hong Kong’s autonomy under the “one country, two systems" formula. Indeed the protection, or not, of human rights in Hong Kong is the touchstone by which the SAR’s fragile autonomy with China is measured.

A dangerous precedent may have been set, too. If now the Falun Gong, why not later Catho-lics, NGOs or even democrats—indeed any group against which China is currently waging a political campaign?

This raises another observation—how, through the course of the past four years since the handover, China’s shifting political priorities have been reflected in Hong Kong. It was commonly thought that one of the key issues facing Hong Kong after 1997 would be the an-nual vigil here against the central government’s crackdown on June 4th 1989 on students and workers in Beijing (and the implied association between pro-democracy forces here and such budding forces in the mainland). Yet with the crushing of the mainland democracy movement in the past few years, this event (and its associations) has certainly receded in sensitivity, both to the Hong Kong government and to China. It is now an accepted part of the calendar. Similarly, last year the issue of Taiwan and its independence, as we reported in our 2000 report, was very much to the fore. So this year the Falun Gong.

Fearing Hong Kong as a “subversive base"

In all these issues of sensitivity to China the one underpinning factor is the concern that Hong Kong might become a “subversive base" against the mainland, or more broadly that forces in the SAR might become involved, even influential, in the politics of the mainland, and of the Communist Party. These are no-go areas in Beijing, hence the symbolism of the crackdown on the Falun Gong and the associated pressure brought to bear on Hong Kong.

SUBVERSION AND ANTI-CULT LAWS

It has been no accident, too, that the pro-Beijing camp in the SAR has been the most vocif-erous in calling for enactment of anti-subversion laws in Hong Kong throughout this whole Falun Gong episode. Under Article 23 of the Basic Law, the SAR government is obliged to enact laws prohibiting, among other things, subversion, secession, sedition and treason against the central government, as well as the theft of state secrets.

Indeed, prior to the Falun Gong outbreak, work had slowly been moving ahead to prepare such laws. The solicitor-general, Robert Allcock, noted in October 2000 that the justice de-partment had been sending papers on the issue to the policy-making security bureau for more than a year, and that bureau officials were now developing policy ideas. However, Mr Allcock also said there was not yet any timetable for enacting legislation. The government so far has been reluctant to tackle this controversial legislative requirement head-on, given widespread concerns about the possible impact on basic freedoms, particularly freedom of expression.

The government has also said that it will not bring forward such legislation in light of devel-opments over the Falun Gong, despite calls from Beijing’s allies here. This, at least, is posi-tive. The timetable for enacting such legislation seems as vague as ever. In what some have interpreted as a back-door move, however, it has been studying anti-cult legislation from other jurisdictions, notably France. It appears for the time being to be putting this on the back-burner, too, concerned as it appears to be about public reaction to such a politically motivated move.

BEIJING LASHES OUT AT HONG KONG MEDIA

Be professional, and socially responsible

The sensitivity of the Chinese leadership became clear a few months before the Falun Gong controversy emerged. In October 2000, President Jiang Zemin lashed out at the professionalism of the Hong Kong media, in apparently off-the-cuff remarks in Beijing. Then two months later, in December, Mr Jiang called on Hong Kong and Macau to develop a socially responsible media, crack down on anti-Beijing activities and support their chief executives.

The latter comments were made in Macau during celebrations to mark the first anniversary of the former Portuguese enclave’s return to China. Mr Jiang said: “In a modern society, the mass media have great influence on people, which requires that the media not only pay at-tention to press freedom, but also to their social responsibilities, and play a more positive role in matters concerning Macau’s prosperity, and the interests of the state and the na-tion."

The president also said Macau “should take concrete measures to defend national interests and the authority of the central government, and should never allow an extremely small number of people to stage any activities in Macau against the central government or to split the country."

Mr Jiang made it clear that his comments on Macau were also “applicable" to Hong Kong. The HKJA expressed concern over Mr Jiang’s comments, saying such remarks from the central leadership exerted pressure on the media and had a detrimental effect on press free-dom. The HKJA went on: “To constrain the media through such subjective criteria as the righteous cause of the Chinese people would be to relegate the media to a machine for na-tional propaganda. This would not only violate the freedoms of the press and expression guaranteed in the Basic Law. It would also strip the public of its right to know."

One day later, on December 21, Mr Jiang appeared to soften his line, saying that “Hong Kong enjoys full freedom of the press." But he reiterated his view that the media had to be responsible to society. He went on: “Being responsible to society does not mean having no freedom of the press. Nor should we make unbridled criticisms on matters simply because we enjoy freedom of the press. This is irresponsible to society."

No “imperial order"

Mr Jiang’s comments in Macau followed criticism he made of the Hong Kong media in Beijing on October 27th. A Hong Kong journalist asked Mr Jiang during a meeting with chief executive, Tung Chee-hwa, whether it was an “imperial order" from Beijing for Mr Tung to serve a second term, from the year 2002.

In an unprecedented tirade, Mr Jiang rounded on the Hong Kong journalists, calling their questions “too simple and sometimes naive". Jabbing his finger in the air, Mr Jiang told the reporters that the only good thing about them was that they could run faster than their counterparts in the West. He went on to issue a warning: “If your reports are not accurate enough, you will have to be held responsible. I did not say giving an imperial order. No such meaning at all."

In subsequent encounters with the Hong Kong media, Mr Jiang went out of his way to take questions. But despite this apparent attempt to mend fences, doubts remain as to his toler-ance of the way the Hong Kong media operate.
This is not the first time that Chinese officials have criticised the media, but it is the most di-rect assault on their integrity. Before the handover, the then-director of China’s Hong Kong and Macau Affairs Office, Lu Ping, said reporters would not be allowed to report on Hong Kong or Taiwan desire for independence. (See 1996 Annual Report.) In April 2000, a mainland official based in Hong Kong, Wang Fengchao, warned the media not to report views advocating independence for Taiwan. (See 2000 Annual Report.) These warnings, however, were directed at particular issues, and not at the general behaviour of the Hong Kong media.

EDITOR FORCED TO RESIGN

Another blow to the media came in late 2000, with the abrupt departure from the South China Morning Post (SCMP) of one of the most prominent China-watchers in Hong Kong. Willy Wo-lap Lam, the SCMP’s former China editor, was told early in November that he would be relieved of his role directing China coverage, and retained only as an associate edi-tor and columnist. He subsequently resigned.

Explaining his decision, Mr Lam told the government broadcaster, Radio Television Hong Kong (RTHK), that while he was clearly not happy about what he saw as a move to sideline him and strip him of his editorial powers, he was, along with other colleagues, perhaps more concerned about “increasing attempts [at the SCMP] to de-politicise China coverage and steer away from sensitive political matters."

A pretext to get rid of the troublesome?

Moreover, Mr Lam noted: “[T]his has led to suspicion that this is a trick, to use [an editorial management decision] as a pretext to get rid of employees considered troublesome." Mr Lam further told RTHK that he believed Beijing may have had a hand in pressuring the newspaper’s management into censoring his coverage of China, and that this was in fact a common phenomenon in Hong Kong: “Beijing is currently extremely sensitive towards the Hong Kong media, so it is possible they have put pressure on other news media to rein in the reporting of a number of journalists whose work they don’t like," he said.

Mr Lam’s comments are disputed by the paper’s management, who say that the various moves were aimed at improving coverage. Editor Robert Keatley was at pains to defend the move as a purely editorial management decision. The slightest suggestion of censorship was, in his view, unfounded: “At no time was Mr Lam told by anyone that any subject was off limits for his columns."

The SCMP’s chairman, Kuok Khoon Ean, the son of Robert Kuok, the paper’s wealthy con-trolling shareholder, would not be drawn on the censorship issue, either: “Editorial decisions are made by the editors," he claimed. However, deputy editor Ray Bashford did concede that non-editorial management was involved in the decision, even though it did not have the final say.

One SCMP journalist, while dismayed by the way in which Mr Lam was sidelined (and effec-tively left with little choice but to resign), was not entirely convinced that censorship was the main motive, and believes character clashes between Mr Lam and the paper’s editor, and other issues may have played a role.

A political decision

On balance, however, it is difficult to believe that political factors did not play a part. First, Mr Lam’s abrupt removal from his day-to-day role came less than five months after a public rebuke by Mr Kuok Senior. Mr Kuok had a vitriolic letter published in the SCMP claiming one of Mr Lam’s columns was “absolute exaggeration and fabrication" and “full of distortions and speculation". Mr Lam’s column focussed on the activities of a delegation of Hong Kong tycoons, including Mr Kuok, during a visit to Beijing, and the suggestion that “more and more SAR denizens are willing to acquiesce in the erosion of [Hong Kong’s] autonomy in return for at least the promise of material benefits [on the mainland]."

Second, a former SCMP editor, Jonathan Fenby, has testified that management had been try-ing for years to tone down the paper’s China coverage, even possibly to remove Mr Lam. Indeed, after several years of playing down allegations of pro-Beijing influence on the SCMP during his four-year term, Mr Fenby has now confirmed in a book what many suspected—that the newspaper’s wealthy owner did try to influence editorial policy. These included:

l An attempt to prevent the term “massacre" being applied to describe the slaughter of stu-dents and others in Beijing in 1989 (over which Mr Fenby threatened, he said, to resign);

l A list of editorial do’s and don’ts, including (again) the prohibition of the term “massacre", as well as sanctions against out-of-favour staff (which, Mr Fenby says, he declined to carry out);

l Instructions “[o]n half a dozen occasions... to sack or move staff journalists whose writing displeased the owners." Among these, apparently, was Mr Lam. (In only one case does Mr Fenby admit that a journalist, satirist Nury Vittachi, was moved—but he says he had decided to move the journalist from his column anyway, on the grounds his work was not up to standard.)
Mr Fenby’s allegations are certainly damning, but they too must be read with some caution. To begin with, allowances must be made for the fact that the allegations are made in memoirs—a form of writing in which the author often emerges in a fair light. The SCMP was on several occasions linked with self-censorship during his tenure, though he strongly denied the claims.

Instructions filtered down from the top

Moreover, as Mr Fenby himself readily admits, he rarely spoke with the older Mr Kuok directly; the latter’s messages were, it seems, often filtered through underlings. He admits, too, that some “instructions" may have come from underlings trying to second-guess their boss. (Indeed, he suggests the Kerry Group, which controls the SCMP, even hired someone to read the paper and assess what Mr Kuok would not have liked.)

Nevertheless, summing up his former proprietor’s views, Mr Fenby noted: “Kuok liked the idea of a paper that was independent, but was uncomfortable with the prickliness which this inevitably aroused." Mr Kuok himself, given his own letter to the editor concerning Mr Lam, might find this difficult to deny.

Also expressing concern at Mr Lam’s removal was Owen Jonathan, the company’s former chief executive. Mr Owen wrote in a letter published in the SCMP that he had long been “acutely aware of the sometimes controversial nature of Mr Lam’s contribution to the Post.... Mr Lam, was in my view, not only an important part of the catholic range of opinions appear-ing within the South China Morning Post but also a keen component of the paper’s credibil-ity, in Hong Kong and internationally. It is indeed a sad day for the Post that Mr Lam felt compelled to resign."

But perhaps most powerfully, 115 staff, including many mid- and high-ranking staff, wrote an open letter to the paper’s management expressing “disquiet" over Mr Lam’s resignation. They wrote: “While we recognise the right of management to institute changes in the editorial department, we deplore the way in which the reorganisation of the China section gave Mr Lam the impression he was being sidelined, especially in sensitive circumstances just a few months after the unprecedented public criticism of him by former chairman Robert Kuok Hock Nien." The SCMP, to its credit, also published this letter.

In the period since Mr Lam’s departure in November 2000, the SCMP has continued to re-port on sensitive China issues, including the detention of dissidents and academics, as well as news on Taiwan, Tibet and Xinjiang. What is missing, though, and this had been pro-vided by Mr Lam, is reporting on and analysis of internal political manoeuvring within the top Chinese leadership, and the effect this could have on policies both on the mainland and in Hong Kong.

Other media owners share close ties with Beijing

There are two deeply worrying aspects to Mr Lam’s case. First, many of the media organisations in Hong Kong share similar ownership characteristics to the SCMP, being independent newspapers in the hands of either a businessman with close ties to Beijing, or part of a larger group which has substantial financial interests over the border.

Indeed, in October 1993, Kam Yiu-yu, former chief editor of the Beijing-controlled daily, Wen Wei Po, who had been in Hong Kong performing propaganda duties for the Communist Party for over 40 years, stated clearly this was Beijing’s strategy. Beijing wants to “control the economic bases", he said, by ensuring news organisations are held in friendly hands, while keeping the media ostensibly free. The media could thus be steered without any need for a more overt crackdown. As Mr Kuok Senior is close to Beijing, Mr Lam’s case certainly shows such a strategy could be at work.

Second, there is the bigger picture which may tie up seemingly unrelated incidents such as Mr Lam’s removal and the outburst by Mr Jiang at Hong Kong reporters being “naive". Mr Lam himself notes that Beijing seems to be taking a livelier interest in the local media—indeed, that it is becoming increasingly intolerant of its more outspoken elements.

SUDDEN RESIGNATION OF CHIEF SECRETARY

The chief secretary for administration, Anson Chan, made a surprise announcement in Janu-ary 2001 that she would step down 14 months earlier than planned. Mrs Chan, whom Time magazine described as “the conscience of Hong Kong", was scheduled to retire in June 2002. She said she was leaving to spend more time with her family, although few believed this explanation. Mr Tung announced shortly afterwards that her successor would be the fi-nancial secretary, Donald Tsang.

A champion of free speech

The significance of this move lies in Mrs Chan’s stern defence of press freedom. Although she has expressed concern about ethical excesses, she has also spoken about the importance of media freedom. In a speech to the Freedom Forum in November 2000, she said: “You have to accept [a free press], warts and all. You can’t have a virtually free press. Or a more or less free press. That’s like being a little bit pregnant."

Mrs Chan’s comments have at times been at sharp variance with those of Mr Tung, leading observers to suggest that the two did not always see eye-to-eye on major issues. For exam-ple, when controversy broke out in March 1998 over the role of Radio Television Hong Kong (RTHK), Mrs Chan said the government respected and valued freedom of expression, while Mr Tung said: “While freedom of speech is important, it is also important for govern-ment policies to be positively presented."

The new chief secretary for administration, Mr Tsang, commented on media affairs shortly after he took up his new post in May 2001. He wrote in a message for the HKJA’s annual ball: “The government believes that a stronger and even more professional media, free of self-censorship and political correctness, is of paramount importance in ensuring Hong Kong’s continued success."

Is Mr Tsang up to the task?

But Mr Tsang is also concerned about media ethics. In a speech to the Newspaper Society, he lashed out at sensationalist reporting: “In the process of sensational reporting, inaccuracies are inevitable. This not only breaches the sacred duty of journalists to seek the truth but also taints the professional image of others in the business."

It is too early to judge whether Mr Tsang will be as forceful a defender of press freedom as Mrs Chan. What can be said, however, is that Mrs Chan’s departure has removed a major defence against encroachment on freedom of expression (and associated rights).

ACTIVIST CHARGED WITH FLAG DESECRATION

In February 2001, leading activist Leung Kwok-hung was convicted in the second case of flag desecration since two controversial laws aimed at protecting the sanctity of the Chinese and Hong Kong flags were enacted in July 1997. Mr Leung was placed on a 12-month good behaviour bond for HK$3,000, after the judge rejected his not-guilty verdict and his ar-gument in court that the laws were unreasonable, as they restricted freedom of expression. The activist has decided not to appeal, because he believes he will not win.

Mr Leung had been charged with three counts of desecrating the Hong Kong flag. They re-late to two incidents on July 1st 2000, during protests to mark the third anniversary of the handover, and one incident on July 9th, during a protest against elections to choose a con-troversial 800-member election committee. These demonstrations were all peaceful.

The first desecration case in the SAR involved two activists, also from the April Fifth Action Group. They were bound over for a year after being found guilty of desecrating a Chinese national and a Hong Kong regional flag during a peaceful and orderly demonstration in January 1998.

The appeal court got it right...

The appeal court overturned this verdict, ruling that the National Flag and National Emblem, and Regional Flag and Regional Emblem ordinances were an unnecessary restriction on freedom of expression, and therefore, in breach of both the Basic Law and the International Covenant on Civil and Political Rights (ICCPR). However, the court of final appeal re-imposed the guilty verdicts and ruled that the two laws imposed a permissible restriction on freedom of expression.

The police are considering whether to prosecute in another potential desecration case, in-volving a protest in May 2001 against police heavy-handedness during the Fortune Global Forum conference in Hong Kong earlier that week. A defaced Hong Kong emblem was on display during the protest.

...flag desecration is a basic right

The HKJA and ARTICLE 19 maintain that the two flag ordinances do not comply with the intention and spirit of Article 19 of the ICCPR, and that the government should review the legislation to ensure its consistency with the SAR’s international legal obligations. Flag desecration had, in the early 1990s, been an accepted form of protest in Hong Kong; to outlaw this has been to diminish the right to freedom of expression.

PRO-BEIJING THREATS TO HUMAN RIGHTS

One disturbing trend in the year under review has been criticism by a small number of pro-Beijing politicians of legal provisions which are vital to the protection of human rights, in-cluding freedom of expression. While the critics may not represent the central government in Beijing, they do represent a strongly held view in more radical pro-Beijing circles in Hong Kong that the SAR government should take a firmer line on matters which they consider to have a bearing on China’s sovereignty over Hong Kong.

For example, in February 2001, the executive director of the One-Country Two-Systems Re-search Institute, Shiu Sin-por, called on China to interpret Article 39 of the Basic Law, which enshrines the International Covenant on Civil and Political Rights (ICCPR). Mr Shiu noted what he considered to be a trend among courts to “cite" the ICCPR in conjunction with Ar-ticle 39 “as a yardstick to measure local laws that are in question." He referred to cases in-volving right of abode in Hong Kong and the rights of non-indigenous residents in the New Territories. In these cases, the courts made relatively liberal interpretations of the law, al-though the ruling on right of abode was later overturned through a mainland re-interpretation of the relevant Basic Law provisions. (See 1999 and 2000 annual reports.)

Mr Shiu complained that the judiciary was seeing the ICCPR as part of Hong Kong law. He questioned if this was right and called on the Standing Committee of China’s National Peo-ple’s Congress to issue an interpretation of Article 39 to put a stop to what he called “judicial activism".

Lawyers reject notion of “judicial activism"

Two pro-democracy legislative councillors—barristers Margaret Ng and Audrey Eu—rejected any move to interpret Article 39. Ms Eu said Article 39 was the heart and soul of the section in the Basic Law dealing with fundamental rights. She said it gave courts “the red pencil to strike down laws which contravene our constitutionally guaranteed rights." She said Mr Shiu’s “naked invitation for interference (through a mainland interpretation) makes one shudder. If ever there is a sure way to destroy ‘one country, two systems', this must be it."

The other criticism came in December 2000 from a National People’s Congress deputy and secretary-general of the Democratic Alliance for the Betterment of Hong Kong, Ma Lik, who criticised a ruling in a landmark libel case. The court of final appeal took a liberal approach in considering the question of “fair comment".

However, Mr Ma accused the court, and a British judge in particular, of paving the way “for lowering media standards of fair comment." He said if the decision became a precedent, “the rationale behind freedom of speech this society enjoys [would be] tremendously distorted, for those who intend to abuse this freedom can and will seek to exercise their right to the fullest extent by using it as an offensive weapon." Mr Ma called the British judge, Lord Nicholls of Birkenhead, a “parachute judge" who did not “have any real idea what Hong Kong society is like."

Mr Shiu, from the One-Country, Two-Systems Research Institute, sided with Mr Ma, arguing that the ruling would “make it very difficult to sustain a case for libel and further tips the balance in favour of the defendant." He called on the government and the legislature to “ensure that the freedom of the press and individual rights are both properly protected."

As we have argued in past annual reports, libel suits or the threat of such action have, at times, been used to silence the media. Given such tactics, any move to tighten the libel laws to better protect those initiating such action could have a serious impact on press freedom and the right of publications to comment on matters of public interest.

Interestingly, the Hong Kong government did not issue any comments on these issues. In-deed, on the call for Article 39 to be interpreted, a Justice Department spokesman made it clear that the issue was not worthy of comment.

RTHK: UNDER RENEWED PRESSURE

An obvious target for Beijing’s allies

The government’s broadcasting arm continues to be a target for pro-Beijing politicians, who argue that a government-funded broadcaster should promote government policies. This is an important issue because RTHK offers an alternative viewpoint to that available from the two commercial radio broadcasters (Commercial Radio and Metro) and the terrestrial television stations (Asia Television and Television Broadcasts).

Pressure on RTHK increased on two fronts. In May 2001, the pro-Beijing Wen Wei Po lashed out at the station over comments by an RTHK presenter to the effect that Tibet was a country. The presenter was discussing the 50th anniversary of an agreement whereby China took over the region in the wake of the Communist revolution.

RTHK said in a subsequent statement that there was no doubt that Tibet was a part of China. It also said that the presenter was quoting other people’s views. It added that the segment was “lacking in impartiality", and a more complete explanation of the Tibet ques-tion was given on the day after the initial broadcast. This included the stance of the Chinese government.

Taiwan’s “leader", not its “president" Th

e second incident followed a decision by Television Broadcasts (TVB) and Asia Television (ATV), to call Taiwan’s president, Chen Shui-bian, the island’s “leader", instead of “president". This terminology is closer to the way the mainland Chinese media refer to Mr Chen. National People’s Congress delegate Ma Lik called on the government to issue guidelines to RTHK on Mr Chen’s title. The government broadcaster insisted that it would not change its current practice of using the term “president", and the government said: “It is not our practise to issue guidelines to RTHK regarding its news reporting."
In an earlier incident, a pro-Beijing legislative councillor, Ng Leung-sing, asked the chief ex-ecutive a very pointed question. The councillor asked Mr Tung, in October 2000, if he thought RTHK should be obliged to help explain government decisions better. Mr Tung re-plied: “On the one hand, I hope RTHK will help the government; on the other, the govern-ment also has the responsibility to do better."

Innocent (albeit clumsy) remark, or calculated message? The jury is still out. In its own de-fence, the broadcaster sought to stress its editorial independence. An RTHK spokesman said: “We are a public broadcasting body which aims at serving the public and operates in the interest of the public.... When there are important government policies to be imple-mented, we will give sufficient airtime for government officials to explain the policies and to exchange views with the public in our programmes."

There have been a few incidents in the year under review which have prompted observers to question whether RTHK itself has become involved in self-censorship. The station’s satiri-cal television series, Headliners—which has often been criticised by the pro-Beijing media—was briefly suspended to make way for a series of profiles on top government and business leaders. It returned to air in January 2001.

The other incident concerned the replacement of a controversial radio presenter, Claudia Mo, from a weekly talk-show. Some legislators expressed concern about the move. But sen-ior RTHK executives denied that self-censorship was involved. Acting assistant director of broadcasting, Ava Wong, said the change was a normal programme reshuffle, and the pres-entation of the programme under a new anchor remains “as tough and critical as ever". Ms Mo continues to present two RTHK television programmes dealing with media develop-ments.

RTHK remains free, but in a precarious position

Overall, observers tend to agree that RTHK retains its editorial independence, even if at times it is overly cautious to ensure that it presents news in a factual and impartial manner. However, this does not alter the fact that RTHK’s position is precarious. It operates under a “framework agreement" with the government’s secretary for information technology and broadcasting, which guarantees the station’s editorial independence. As an administrative document, the agreement is open to administrative change. To secure adequate safeguards for RTHK’s editorial independence, the HKJA and ARTICLE 19 have long been calling for the government to formalise the framework agreement through legislation.

CONTROVERSY OVER ACADEMIC FREEDOM

A chill wind blew through Hong Kong’s academic community following the arrest in mainland China of at least five Chinese-American scholars. Two of them are Hong Kong residents, one of whom published sensitive articles about Communist Party history in at least one Hong Kong publication. Another is a former Hong Kong resident, who also con-tributed to newspapers in the SAR.

One of the Hong Kong residents, US citizen and business studies lecturer Li Shaomin, was arrested in neighbouring Shenzhen in February 2001. Three months later he was charged with spying for Taiwan. Dr Li is the son of a well-known intellectual expelled from the Com-munist Party for supporting democratic reforms. In an unprecedented move, 104 Hong Kong-based scholars signed a letter to Chinese president Jiang Zemin, expressing concern over the scholar’s detention. They also noted that many academics had cancelled mainland trips and had become more cautious about their research work, as a result of the detentions.

Another Hong Kong resident, Zhongshan University historian Xu Zerong, was arrested in August 2000, in connection with articles he had written exposing alleged Communist Party secrets. One of Dr Xu’s most recent articles—on China’s support for Communist insurgents in Malaysia—was published in the Hong Kong magazine Yazhou Zhoukan in July 2000.

Other detained scholars include former Hong Kong resident Wu Jianmin, whose work was reportedly published under a pen-name in Apple Daily between 1995 and 1999. He was also the China news editor for the defunct Express News for a short period in 1996. The others are US permanent residents Gao Zhan (who was accused of spying) and Tan Guangguang, who worked for a US medical group in Beijing.

There is considerable uncertainty about why Beijing has targeted these academics. Some observers have suggested it may be part of a wider crackdown aimed at finding those who smuggled out material for the book The Tiananmen Papers, which purportedly records in-ternal discussions leading to the suppression of the pro-democracy movement in Beijing in June 1989. The director of the Hong Kong-based French Centre for Research on Contempo-rary China, Jean-Pierre Cabestan, suggested that the mainland move may be an attempt by the police “to get back control of the academic community".

The chief executive tries to gag opinion polls...

This was not the first time that Hong Kong’s academic community had felt chill winds. In July 2000, a social scientist at the University of Hong Kong, Robert Chung, alleged in the South China Morning Post that the chief executive, Tung Chee-hwa, had tried—through a “special channel"-to gag his opinion polls on the chief executive’s popularity. It later emerged that the chief executive’s senior special assistant, Andrew Lo, had raised doubts about Dr Chung’s polls during a meeting with the university’s vice-chancellor, Cheng Yiu-chung. Professor Cheng had then spoken with pro-vice-chancellor Wong Siu-lun, who in turn broached the issue with Dr Chung.

Public pressure to determine the veracity of the allegations was such that the university council found itself taking the unusual step (albeit reluctantly) of setting up a three-member inquiry panel. The panel, headed by a former Court of Appeal judge, found that professors Cheng and Wong had indeed tried to put a stop to Dr Chung’s polls, and that the pair had twice conveyed messages to Dr Chung that were “calculated to inhibit his right to academic freedom". The two professors resigned shortly afterwards.

Perhaps more importantly, the inquiry panel also found that the chief executive’s special as-sistant, Mr Lo, who had denied asking Professor Cheng to put pressure on Dr Chung, was a “poor and untruthful witness". The panel said it was sure that the messages were passed to Dr Chung “as a result of the conversation between Mr Lo and the vice-chancellor" in Janu-ary 1999. The chief executive later defended Mr Lo, who (remarkably) remains in his post.

...leading to a revealing inquiry

There were calls for a wider investigation of the case. Following the university’s inquiry, some (mainly pro-democracy) parties in the Legislative Council called, unsuccessfully, for a formal committee of inquiry to determine whether the chief executive himself had been party to the process of exerting pressure on Dr Chung. In the early days of the controversy, Mr Tung denied he had exerted any pressure on the university. But he also turned down a request to testify before the committee of inquiry, leaving observers wondering just what his role in fact was.

There was some good news on the academic front in May 2001, when the Chinese Univer-sity decided to confer an honorary degree on Nobel Laureate Gao Xingjian—despite opposi-tion from some pro-Beijing politicians in Hong Kong. Mr Gao, who lives in exile in France, renounced his membership of the Chinese Communist Party following the suppression of the pro-democracy movement on the mainland in 1989. The Chinese government said the award of the literature prize to Mr Gao in October 2000 was politically motivated. Three months later, Mr Gao was snubbed by top government officials when he visited Hong Kong. He is scheduled to receive his honorary doctorate in December 2001.

SECTION 2

Law reform stalls

In a depressing (albeit not unsurprising) repetition of what we reported in our last annual re-port, the government has yet again failed to make any progress in reforming laws which fail to comply fully with article 19 of the International Covenant on Civil and Political Rights (ICCPR), which safeguards freedom of expression. This most notably is true with security-related laws. Not only did the administration fail to initiate any reform measures; in one case, it actually went to the Legislative Council to seek endorsement for a position of “no change" on a vital public order law.

Officials have also prompted concern among journalists about a new law to govern the secu-rities and futures industry. The point of concern is a provision which could see negligent journalists thrown in prison for up to ten years for publishing false stories which have an ef-fect on stockmarket transactions.
The government was at least active on the broadcasting front, though its policies on pay and digital TV were little if not confusing. Officials were also positively interventionist in drafting new TV and radio codes, until critics, including the HKJA, forced them to take a step back.


POLICING AND THE PUBLIC ORDER CONTROVERSY

Security was tight, too tight...

Concerns about policing demonstrations came to the fore in May 2001. A major conference, the Fortune Global Forum, was held in that month. One of the keynote speakers was the Chinese president Jiang Zemin, and, as with past visits by senior leaders from Beijing, security was extremely tight. The police were out in force, and demonstrators were confined to an area a considerable distance from the conference venue.

There were two major incidents shortly before and during the conference. The first involved seven protesters from a pro-democracy group called the Social Democratic Forum, who chained themselves to a flagpole next to the conference venue. They were cut free by poli
ce, arrested and charged with obstruction. They have pleaded not guilty.
In the other incident, three protesters were arrested during scuffles at the start of a planned march to the conference venue. Police also seized a symbolic coffin and a vehicle which the protesters planned to use during their march.

...infringing the rights of assembly and expression

The Human Rights Monitor group lashed out at police tactics during the conference. Referring to the second incident, it said police actions severely interfered “with the demonstrators' rights of freedom of assembly and freedom of expression. This is particularly disturbing due to the fact that the demonstrators were already relegated to an area in which the forum participants would not be able to see or hear them." Human Rights Monitor also accused the police of provoking confrontation by using excessive force. The police denied these charges.

In Hong Kong protesters have to obtain permission from authorities, under the Public Order Ordinance, to hold a rally or a demonstration. The manner of the law’s application in Hong Kong came under intense criticism several months earlier, following the arrest of two student groups.

In August 2000, the police arrested seven students in connection with a protest held in late June to mark the first anniversary of Beijing’s controversial re-interpretation of the Basic Law on right-of-abode issues. They were accused of taking part in or helping to organise an illegal assembly. One was also accused of obstructing police operations. They were among 16 people arrested in connection with the protest, which turned violent as police tried to disperse a crowd holding a sit-in in front of government headquarters.

In October, the prosecuting authorities decided against filing charges. No reasons were given, but some analysts believe the decision was related to growing public pressure for the students to be treated leniently. Those arrested were, however, given letters warning them that the police would consider taking action against them if they took part in future unau-thorised assemblies.

Students arrested for breaching public order law...

In September, the police arrested five of the seven students for their participation in another protest—held in April against higher tuition fees. The police accused the five of taking part in or helping to organise an unauthorised protest on the grounds that they did not notify police in advance. Again, the Justice Department decided against filing charges.

The accusations relate to provisions in the Public Order Ordinance, which stipulate that an organiser of an assembly consisting of more than 50 people and a march of more than 30 must notify the police seven days in advance of the event, and that the police must issue a certificate of no-objection before it can go ahead. The assembly or march can go ahead, however, if no certificate is received 48 hours before the event is scheduled. Failure to com-ply with these provisions may lead to prosecution.

These provisions replace amendments enacted in 1995, which established a simple notifica-tion system. China-appointed committees declared that the 1995 changes were inconsistent with the Basic Law. This declaration was endorsed by the Standing Committee of China’s National People’s Congress and led to the enactment of the existing provisions by the provisional Legislative Council in July 1997.

...claim “political suppression"

The students said the arrests constituted “political suppression". The Bar Association said it appeared the students had been singled out, and that the timing and manner of their arrests “understandably gives rise to the impression that there was an attempt to maximise political pressure on the students." It also noted that no action had been taken against the organisers of more than 400 other meetings and demonstrations which had also not complied with the Public Order Ordinance.

The Bar Association also called on the government to review the ordinance as soon as pos-sible. It cited its concern over whether the law complied with the freedom of expression and assembly provisions in the Basic Law and the International Covenant on Civil and Political Rights. It pointed to the following issues: the length of time for prior notification for meet-ings and demonstrations; the power of the police to prohibit meetings and to object to dem-onstrations without clear delineation; and the criminalisation of peaceful meetings and dem-onstrations simply because of the absence of police permission.

The government has stubbornly refused to consider a review of the law, insisting it “strikes the right balance between the maintenance of public order and safety and the protection of the right of freedom of expression." The HKJA views the ordinance as unnecessarily restric-tive on freedom of assembly. Yet seeking its amendment will now be more difficult than ever following the endorsement by the Legislative Council in late 2000 of a government motion supporting the law. The vote was 36 to 21 in favour of retaining the existing provisions in the Public Order Ordinance. Only pro-democracy groups backed change.

LAW REFORM: SETBACKS FOR INTERCEPTION LAWS

Over the year under review, the government has once again failed to bring security-related laws into line with provisions in the ICCPR. These include the Official Secrets Ordinance, which fails to provide public-interest defences; the Emergency Regulations Ordinance, which fails to provide proper checks on when the authorities can declare an emergency; and the Crimes Ordinance, which lays down draconian offences of treason and sedition.

Reform of these laws is vital because they hand the authorities sweeping powers which could be used against the media and journalists. While such powers have not been used, they could be—witness the way that both Singapore and Malaysia have over the years used their draconian internal security and sedition laws to crack down on dissidents, including those who exercise their right to freedom of expression in a non-violent manner.

Procrastination, again, on telecoms and post office legislation

Indeed, in the one area where reform is possible, officials have announced further delays. The government has been reviewing provisions in the Telecommunication and Post Office ordinances, giving the government wide powers to intercept messages and mail. Officials intended to scrap these provisions by enacting a law governing the interception of communications. It would have provided for judicial approval for phone-taps, instead of administrative approval. The Legislative Council endorsed a private member’s bill to this effect in June 1997, but it was never put into effect.

In April 2001, the secretary for security announced that officials had made only a little pro-gress in studying the issue. She added that the problem was complicated by rapid develop-ments in communications technology. She said there was a need to strike a balance between confidentiality and transparency. Mrs Ip expressed the hope that initial conclusions could be reached by the end of 2002, and that consultations, possibly through the release of a green paper, could start sometime in 2003.

JOURNALISTS FEAR HARSH SECURITIES LAW

Journalists have expressed concern over government plans to criminalise the publication of false or misleading information which could induce people to buy shares or futures con-tracts. The offence is contained in the Securities and Futures Bill, which is aimed at creating an internationally recognised securities industry.

The HKJA is concerned about the harshness of the provision, and the fact that innocent journalists could be caught if they are reckless or negligent in their work. The consequences could be devastating for reporters: a maximum ten-year jail term or a HK$10 million fine. The offence is based on a similar one in Australia (though we understand this has never been used to convict journalists). We note also that no such law exists in the US.

The government argues that it would be difficult to convict a journalist, so long as false or misleading information is attributed to someone, and so long as the reporter has taken rea-sonable steps to check whether the information was correct. However, the HKJA is not con-vinced that the publication of false or misleading information should be made a criminal of-fence at all.

In its present form the bill, moreover, is short-sighted. Hong Kong’s attractiveness as an in-ternational business centre is founded in part on the free flow of information and a free me-dia. If enacted the legislation may, in the HKJA’s view, have a chilling effect on local finan-cial reporting. Instead of enhancing Hong Kong’s status as an international financial centre, it may harm it.

The Legislative Council is now studying the bill.


NEW BROADCASTING CODES CAUSE CONTROVERSY

Presenters called to account

In June 2001, new radio and television codes of practise came into effect. The Broadcasting Authority first released the codes for public consultation in September 2000. More comprehensive than previous codes, new sections dealt with areas such as privacy, court and consumer reporting, and right of reply. But there were also provisions dealing with more controversial issues—talk shows and a proposal to set up registers of the business interests of “programme presenters".

The September version stipulated that talk shows-"personal view programmes"-had to be identified clearly at the start of the broadcast so that listeners were made aware of their personal-view nature, and thereafter every half hour. Programme presenters, including talk-show hosts, meanwhile, were required to submit a list of their business interests to the tele-vision or radio licensee for whom they work. This register, the code said, should be available for inspection by the Broadcasting Authority. In addition, if the fairness or impartiality of any programme material was likely to be brought into question because of a conflict of inter-est, then a programme presenter would either refrain from taking part in the discussion of relevant issues, or make an on-air declaration of his/her business interest(s), or the “relevant commercial agreement".

The HKJA opposed such a system, arguing that individual broadcasters should be left to decide how best to handle potential conflicts of interest. This is to a certain extent the ap-proach taken by the Broadcasting Authority when it released revised codes of practice in January 2001. With minor changes, this draft became the final version, which is now in ef-fect.

The new codes call on licensees to “devise and institutionalise" a declaration mechanism for “presenters of news programmes and factual programmes dealing with matters of public pol-icy or controversial issues of public importance in Hong Kong." Licensees must then exer-cise their editorial judgement and decide whether a presenter will refrain from taking part in discussions or declare his/her interest.

The guidelines also state that a licensee shall consider any complaint from the public over conflict of interest and make the findings available to the complainant, the Broadcasting Au-thority and the public—in the latter case, free of charge, for example by posting the findings on its website. The guidelines also stipulate that talk shows must be identified as such only at the beginning of the programme, and not throughout.

Self-regulation is better

While these revisions go some way towards meeting the HKJA’s call for the problem of conflict of interest to be tackled within a media organisation, that is, through self-regulation, they are still too broad in nature. Any news presenter will have to make a declaration, irrespective of whether he or she expresses personal opinions or simply reads from a prepared text. Further, and perhaps more worryingly, a licensee is still subject to sanctions for failing to undertake the revised provisions.

CONFUSION IN THE PAY-TV FIELD

In July 2000, the government awarded pay-television licences to five new operators. By the time this report was published, only three were left. This suggests considerable confusion in government policy and a reluctance by certain players to involve themselves in a limited market. Indeed, there is even doubt as to whether the major player will remain in the game to present new pay-TV services.

The major player is Galaxy Satellite Broadcasting, a wholly-owned subsidiary of TVB, the territory’s dominant free-to-air broadcaster. The award of a licence to Galaxy proved con-troversial, with Hong Kong’s sole existing pay-TV operator, Cable TV, arguing that this par-ticular licence would create unfair competition. “Until this decision," Cable TV retorted, “no one in the history of Hong Kong has ever been given the special privilege of controlling two domestic TV licences at the same time."

Cross-media ownership is banned, apart from when an exception is
made

The Broadcasting Ordinance effectively bans cross-media ownership—except in circumstances where the Executive Council chooses to grant an exemption, as in the Galaxy award. Government officials argued in this case that special conditions were imposed on Galaxy to ensure a level playing field. These include stipulations that TVB would not be permitted to own a majority stake in Galaxy, and that the two firms would not be able to cross-subsidise each other, or give each other preference in the supply of programme and production facilities. In addition, unlike the other new pay-TV operators, Galaxy would not be allowed to start offering programmes until 18 months from the issue of its licence.

Ironically from a competition standpoint, two of the five licensees dropped out in the year under review. Without giving any reasons, News Corporation subsidiary Star TV dropped its pay-TV plans in December 2000, while Hong Kong Network TV pulled out in March 2001, citing high charges by network providers.

However, analysts also questioned Galaxy’s commitment, after it failed to meet a deadline for payment of an HK$88 million performance bond. Galaxy asked the Broadcasting Author-ity for an additional six months to submit the bond, but withdrew the request after it paid the bond from money supplied by TVB. However, the Broadcasting Authority said it would fine Galaxy, as it considered the firm’s late payment to be a breach of a major licence condition. Analysts said the next hurdle for Galaxy would be to find investors, so that TVB could cut its stake in the company to 49%, as required under the Executive Council’s special condi-tions. This process received a severe setback in June 2001, with the withdrawal of Malay-sian-based investor Astro Broadcasting. This leaves TVB the sole shareholder in Galaxy.

Separately, confusion also hung over how long it would take for TV operators to offer digital broadcasting to their viewers. The government released a consultation paper on the issue in December 2000, suggesting that it could offer three to six such licences. The government also floated the idea of adopting a European digital TV standard—a proposal challenged by the two existing terrestrial broadcasters, ATV and TVB, which called on the government to wait for mainland China to choose a system, which should then become the standard in Hong Kong. Such a move would undoubtedly delay the introduction of digital TV.

SECTION 3
Self-censorship and ethical problems

Hong Kong’s media uncritically accepts China’s priorities T

wo key news events of the past year have highlighted how China’s political priorities have pervaded the Hong Kong media. Generous and enthusiastic coverage was given to China’s “Go West" campaign, a national development priority to attract investment to the backward western provinces of China. Considerable airtime and newsprint were devoted to largely uncritical discussion of Hong Kong’s opportunities in the region, while critics of the policy—even those expressing minor reservations—were marginalised.

Meanwhile, relatively little sympathy was given to followers of Falun Gong, the meditation group vilified and persecuted in the rest of China. However, the general tone of coverage was, at least, not pro-government. Although followers of the group were often portrayed as eccentric, the government’s attacks on the group came in for criticism in many media out-lets.

Several other developments have highlighted the sensitivity of news reporting at the fringes—in those areas, such as Taiwan and Tibet, that are particularly sensitive to China. That said, reporting continued on the conflict between Taiwan and mainland China, dissident ac-tivities in China, and the detention and arrest of critics of the Beijing government.

Coverage of the Falun Gong

One critical area in the year under review was reporting on the activities of the Falun Gong in Hong Kong, in light of growing pressure against the spiritual group from several senior Hong Kong government figures, as well as pro-Beijing politicians. Indeed, some public fig-ures put pressure on the media to take a clear stand on the Falun Gong, especially after President Jiang Zemin spoke in Macau about the media’s social responsibility. For example, prominent National People’s Congress Standing Committee delegate Tsang Hin-chi called on the media to judge how the group had ruined Hong Kong’s stability and prosperity.

The Falun Gong: mostly a normal news event

In most circumstances, the Falun Gong issue was reported as a normal news event. The approach of the Chinese-language media—with the exception of pro-Beijing publications—was complex. Publications did not show great sympathy towards the group, reflecting perhaps scepticism on the part of the local population. However, at the same time, they did not give automatic backing to Beijing’s stance. They tended to present news on the movement in a sensationalist way, highlighting the conflict between the Falun Gong and the Hong Kong government.

By contrast, the English-language media tended to give more detailed and prominent cover-age. Such newspapers often played up the human rights issue—the fear that any move to ban the organisation would threaten other rights, including religious freedom and freedom of expression.

The media tended to take a more forthright approach on the possible enactment of anti-cult legislation. Many newspapers, with the exception of the pro-Beijing media, came out against such legislation and argued that enactment of an anti-cult law would harm Hong Kong’s freedoms and its international image. This approach reflected perhaps a difference in opinion towards the Falun Gong and possible anti-cult legislation, with its wider implications for freedom of religion, association and expression.

The relative downplaying of the Falun Gong issue by many local media outlets may be one reason for a clear dichotomy of views on the issue. One leading international publication has described the status of the Falun Gong in Hong Kong as the toughest test yet of the “one country, two systems" concept. Yet in polling local people, a study released in April 2001 by the Hong Kong Transition Project (a group of academics focussing on popular attitudes) found that just 6% said they paid “a great deal" and 25% “some" attention to the Falun Gong issue.

Shying away from the official terminology

Another element in this controversy was the use of terminology. The Chinese government branded the Falun Gong an “evil cult", a propaganda term that some senior government officials, including the chief executive, Tung Chee-hwa, used at the height of the controversy. However, media organisations, with the exception of pro-Beijing publications, tended to shy away from the term, unless they attributed it to an individual or organisation.

Another aspect of the battle over terminology emerged in June 2001, with controversy over whether to call Chen Shui-bian the “president" of Taiwan, or its “leader", which approxi-mates the terminology used in mainland China. In that month, the two terrestrial TV broad-casters, Television Broadcasts (TVB) and Asia Television (ATV), were accused of switching from “president" to “leader". The stations changed tack in reports on Mr Chen’s visit to the United States and Latin America in May 2001.

The assistant controller at TVB News, Cheung Chi-kong, denied self-censorship, adding: “TVB advocates the ‘One China' principle, and the way we address [Mr Chen] is just to em-body this principle." ATV’s deputy head of news, Tong Tak-chuen, said his station also advocated “One China". He said: “It is a fact that Mr Chen is a leader of Taiwan." Two other stations, private broadcaster Cable TV and government-funded Radio Television Hong Kong, both said they would continue to use the term “president".

Although apparently minor, this issue is a symbol of what appears to be a slow marginalisa-tion of Taiwan news. The 2000 annual report focussed on the importance of this issue for the local media in the wake of a warning from a senior mainland official stationed in Hong Kong that journalists should not report the views of those supporting Taiwan's independence. Indeed, many journalists believe—without any clear proof—that the warnings have had some effect in prompting in particular TV stations to play down news about Taiwan. One newspaper reported, for example, that TVB would not use the Taiwanese flag for its on-air logos. By contrast, news from other countries was normally presented with the national flag as a logo.

“Go West", our Hong Kong compatriots

Another “patriotic" issue that arose in 2001 was China’s policy of encouraging investment in its western regions, including the sensitive minority areas of Xinjiang and Tibet. Both TVB and ATV sent teams to cover the so-called “Go West" campaign. Observers noted that the programmes produced, one including short segments in news broadcasts, failed to give much insight into the very real and complex economic problems in the western regions. Others offered the view that media reporting on the issue was excessively optimistic, painting a rosy picture of prospects in the western regions—a perspective not shared by more critical analysts.

The coverage indicated that many media outlets were, in some cases, willing to make their news agendas closer to national priorities, operating in a grey area between news and propaganda. As a symbol of this, a series on “Go West" by the pro-Beijing Ta Kung Pao newspaper was, if the annual Newspaper Society awards are to be believed, the best news-paper article of the year.

Despite the enthusiasm of both the China and Hong Kong authorities that the Hong Kong media follow the flag on the “Go West" campaign, there was no room for Hong Kong’s sec-ond most popular newspaper, Apple Daily, a publication repeatedly attacked and marginal-ised by China. Their reporter was refused permission to travel with the official entourage, in-cluding other reporters, on the trip to western China, and were reduced to following the offi-cial bus in a hired car. Apple Daily journalists have for several years been barred from re-porting in China, under regulations aimed at controlling how Hong Kong journalists operate on the mainland.

With the “Go West" campaign elevated to national priority, the enthusiasm with which local media organisations became, in some cases, cheerleaders instead of reporters was a further indication of the mindset at work in some media organisations. A desire to appear “on-side" is not limited just to publications in the pro-Beijing camp. When the Hong Kong government unveiled a new—and, to some critics, meaningless—logo for the city, Apple Daily printed it in full colour on every page of its news section for several weeks.

One of the most common questions asked of the Hong Kong media is about their propensity for self-censorship. Increasingly, such questions are becoming meaningless. It is true that in the mid-1990s, this report highlighted a number of clear-cut cases in which completed news items or broadcasts were never presented to the public, or in which TV stations bought ex-clusive Hong Kong rights to TV programmes that were critical of China, and then refused to air them.

The self-censorship situation is now more complex

The situation is now far more complex. Certain subjects are emerging as “no-go" areas for some media outlets, and journalists—sometimes quick to pick up what their editors want—will simply never suggest articles on these topics. Such unwritten rules can become almost institutionalised in a news organisation’s culture. Newspapers with large “no-go" areas often find that staff who are interested in such topics drift to other publications.

In addition, the government itself may be playing a role in this process, by courting editors and doing deals. A newspaper on rational or commercial grounds may decide to support “patriotic" initiatives from Beijing and take on attitudes that to outsiders appear slavish. The largely enthusiastic coverage of Beijing's bid for the 2008 Olympic Games and the “Go West" campaign are just two examples.

A taste of government tactics was given in a July 2000 article in the Asian Wall Street Jour-nal (AWSJ), which reported that the chief executive’s personal assistant, Andrew Lo, had prompted some property developers to boycott Apple Daily’s advertising pages—a cam-paign that achieved limited, short-term success. The AWSJ also reported that Mr Lo had at-tempted to block merchant banker Tony Fung's re-appointment to the board of Chinese Uni-versity. (Mr Fung had helped Apple Daily owner Jimmy Lai obtain a stockmarket listing). Mr Tung’s spokesman denied the allegations, but the AWSJ stuck to its story.

Ethical dilemmas

In the year under review, the media have started to grapple with a popular backlash against sensationalism, in particular in the popular press. Excesses have continued, but some news-papers have started to take a more ethical approach, for example, through the adoption of codes of practise and the introduction of correction columns. However, the most significant move in the year under review has been the creation of a non-statutory press council, to re-ceive complaints from the public.

Is the media really putting its house in order?

While excesses may not be as prevalent as they were in the recent past, there have been enough cases to prompt people to question whether the media are indeed putting their house in order. These include pictures of a journalist frolicking with a prostitute posted on a prominent news website, CyberDaily, and the excessive coverage of the Hello Kitty murder, in which the female victim had been tortured and later killed, and her head stuffed inside a “Hello Kitty" doll.

Sensational coverage did not always come in for universal condemnation. Reports on the suicide of a worker living in a public housing estate were followed up with stories about his impoverished family, which could spend only HK$10 on each meal. Reporters treated the family’s two children to hamburgers in an attempt to obtain “news-worthy" photographs. Critics said the media were exploiting the boys in order to boost circulation and viewership. But others argued that the reports were worthwhile, because they highlighted the problem of poverty and prompted some members of the public to make donations to the family.

Market forces also appear to be at work in persuading at least some newspapers to be more discrete in handling ethical cases. According to a senior editor at one of the top newspapers, Apple Daily, the more educated middle class has grown tired of ethical excesses. Further, there has been growing pressure on publications to put their house in order, due to the media monitoring activities of civic organisations such as the church-based Society for Truth and Light.

Media credibility is wavering

Surveys recorded mixed results on the media. A religious coalition called “I Love Hong Kong 2000" reported in February 2001 that 66% of respondents in its survey, conducted by City University, thought media ethics had deteriorated over the previous 10 years. However, a University of Hong Kong survey revealed a slight improvement, albeit over a much shorter timeframe. The latter poll, released in April 2001, showed that credibility in Hong Kong’s news media had risen to 6.08 on a scale of zero to 10. This compares with a low of 5.48 in August 1999, when a Law Reform Commission (LRC) sub-committee came out with a report condemning media excesses, and a post-1997 high of 6.58, in September 1998.

The University of Hong Kong academic responsible for the survey, Robert Chung, noted in April 2001 that Hong Kong’s media organisations had failed to maximise their degree of press freedom, so that they could enhance their professionalism, news-handling and self-regulation, and thereby improve their credibility and sense of responsibility.

A PRESS COUNCIL COMES INTO BEING

...but starts without the key players

Concern about media ethics was the catalyst that led to the creation in July 2000 of the Hong Kong Press Council, the SAR’s first-ever such council. Its effectiveness, however, was immediately called into question. The press council began life without the territory’s top-selling newspapers on board, nor was it able to claim broad and inclusive membership from local media organisations—the HKJA itself decided against joining, arguing that media organisations should police themselves.

The non-statutory body consists of 15 public representatives, 11 newspapers, including four pro-Beijing publications, and two media organisations—the News Executives Association and the pro-Beijing Federation of Hong Kong Journalists. The press council, established by the Newspaper Society of Hong Kong, representing publishers, is chaired by Lingnan University president and former Consumer Council chairman, Edward Chen.
Conspicuously absent are publications from Hong Kong’s two leading media groups—the Oriental Press Group, which publishes the Oriental Daily News and the Sun, and the Next Media group, publisher of the Apple Daily.

Between them, the two groups are said to con-trol about 75% of the newspaper market by readership. Also not represented are two smaller publications—the Hong Kong Economic Journal and Sing Pao Daily News.
Apparently concerned about the threat of libel suits being lodged against its judgements, the council has decided only to accept complaints against member newspapers, until legisla-tion is endorsed granting the watchdog exemption from such actions. Any move to seek ex-emption is unlikely to take place until early 2002, at the earliest, as the council says it is still seeking legal advice on the matter.

The establishment of the council is aimed at forestalling possible government moves to cre-ate a statutory press council to deal with privacy complaints. The LRC’s privacy sub-committee had, in August 1999, proposed the creation of a statutory council with the power to fine newspapers up to HK$1 million; by contrast, the Newspaper Society council is limited to demanding a public apology from a publication, or to reprimanding or censuring it—either or both of which are likely to be effective only on council members.

The council says it received 31 complaints between September 2000, when it first invited complaints, and March 2001. Some of the complaints were lodged against several publica-tions, pushing the total to 37. The council felt unable to accept complaints against non-members and magazines, which left it with just nine to consider. Only five complaints related to privacy—the original rationale for setting up the press council. However, the council does consider complaints on other issues, such as indecency and unfair reporting.

Whether the new body will pre-empt the need for a statutory council is too early to say. The LRC’s privacy sub-committee is due to re-consider its proposal for a statutory body later in the year, with a final LRC report expected in late 2001 or early 2002. However, the chairman of the sub-committee, Raymond Wacks, has gone on record as saying that he opposes such a move.

Before then, the sub-committee will consider another media-related report—on civil liability for invasion of privacy. It proposes giving people the right to sue for damages, including hurt feelings, if their privacy is invaded. According to Professor Wacks, a final report on this issue could be released in October or November 2001. He said that if a civil remedy for breaches of privacy were brought into law, then there might be no need to create a statutory press council, especially as a non-statutory body had already come into being.

Will the Press Council affect press freedom?

On the press freedom front, it is too early to gauge whether the new Hong Kong Press Council—constructed as a non-statutory body—might affect this right. Quite probably, its impact will be minimal, though some have argued that the mere existence of an oversight body could have a chilling effect on certain types of news reporting. However, what is worrying is the desire of the council to seek an exemption from defamation actions. Such a move would place the council above ordinary citizens—ironic when publications claim to be acting as a watchdog on behalf of the public. But more worryingly, it could create a degree of dependence on the government and the legislature, since approval would be needed from these institutions for any exemption.

The HKJA is of the strong view that the best way to deal with media excesses is for individ-ual publications to put their house in order, through the use of corrections and apology col-umns, the printing of letters from aggrieved individuals, and the appointment of news om-budsmen to consider complaints from readers. Indeed, it would be ironic if the creation of a press council by newspaper publishers meant that managers in those newspapers failed to implement the necessary reforms to make their publications more accountable to readers.

As for the deliberations of the LRC’s privacy sub-committee, the HKJA and ARTICLE 19 would urge it to reject any press council with statutory powers, given that it would involve direct government and legislative intervention in the media industry at a time when judicial and legislative safeguards are insufficient to provide any meaningful check on possible abuse. A statutory press council might be dangerously open to abuse by authorities looking to suppress unpalatable expression. This may not seem especially pressing now, but scepticism seems prudent in the light of political developments in Hong Kong.

OTHER PRIVACY ISSUES

A new offence of stalking?

The ongoing development of privacy legislation took another step forward in October 2000, with the announcement of a proposed law on stalking. The LRC’s privacy sub-committee proposed to create a new offence of harassment designed to deter potential stalkers and give the police powers to intervene in stalking cases which might result in violence or death.
Significantly, a defence is proposed which takes into account the reasonableness of the pursuit, in particular whether the action—defined as a pattern or course of conduct designed to cause the victim distress or alarm—is part of the legitimate course of a person’s work. Such work would include that of politicians, journalists, debt collectors and others.

Outlining where the boundary might be drawn between reasonable
pursuit and harassment for a journalist, Mr Wacks noted that news gathering in the public interest, including expos-ing corruption, would be counted as a good defence, whereas a stalking-like pursuit simply to satisfy reader curiosity might be seen as unreasonable. Mr Wacks was at pains to stress that the proposals would not undermine media freedom, and that it was unlikely that journal-ists could be prosecuted in the normal course of news gathering, or even paparazzi activities. It had also been recommended, he said, that courts take into account the right to freedom of expression when considering such cases.

Despite these words of reassurance, the HKJA is of the view that defences need to be strengthened, to ensure that reporters can carry out their legitimate journalistic activities, in particular in the field of investigative reporting. Other problems include the vagueness of the definition of stalking and the fact that experience in other jurisdictions tends to suggest that criminalisation may not be necessary if civil remedies are available.
The administration says it will consider the matter further in light of comments received from relevant government departments, non-governmental organisations and legislative council-lors. A spokeswoman said no timeframe had been set for possible legislation.

Another threat—the use of privacy legislation to prevent journalists and photographers from doing their work—appears to have abated. This follows a Court of Appeal ruling in March 2000 that the taking of a picture of an anonymous individual (by a photographer for East-week magazine) was not contrary to data protection principles enshrined in the Personal Data (Privacy) Ordinance. A spokeswoman for the Privacy Commission, which instituted ac-tion in the Eastweek case, said no similar cases had come forward, following the court ruling.

SIGNIFICANT LIBEL VICTORIES

Fair comment should be given a wide berth

In November 2000, two commercial radio talk-show hosts won a re-trial in a landmark defamation case. Albert Cheng King-hon and Peter Lam Yuk-wah, both of whom had been found by a Court of First Instance jury in May 1998, and later by the Court of Appeal, to have defamed a solicitor, Paul Tse Wai-chun, saw the ruling overturned in the Court of Final Appeal (CFA) two and a half years later. The five CFA judges ruled that the trial judge had misdirected the jury in a way which could endanger freedom of speech. The chief justice, Andrew Li, said the courts “should not adopt a narrow approach to the defence of fair comment." Mr Tse indicated at the time that he may not pursue a re-trial, given the high costs that are likely to be involved.

This judgement is important because it gives the media much greater leeway in commenting on matters of public interest. At times, publications have felt reluctant to comment on pow-erful politicians and businessmen out of fear that they may face massive defamation suits. Lawyers argue that following the judgement, people will be entitled to make remarks about others even if they are motivated by spite, as long as their views are honestly held.

As we pointed out in section one, two pro-Beijing politicians, Ma Lik and Shiu Sin-por, criti-cised this ruling. The HKJA disagrees with this line of thinking, arguing that there are strong grounds for strengthening existing defences. As University of Hong Kong journalism pro-fessor Chan Yuen-ying has put it, libel laws need to be reformed “in an effort to foster ro-bust public debates".
There was another important libel case in the year under review. The Oriental Press Group, Eastern Express publisher and the group’s chairman, Ma Ching-kwan, failed in their effort to bring a defamation suit against Next Magazine over a September 1994 article detailing the reasons for the closure earlier that year of the Eastern Express newspaper, which was part of the Oriental Press Group.

The plaintiffs argued that the article had defamed them by saying they had interfered with the defunct newspaper’s editorial independence. Following a lengthy 26-day hearing, the jury found that the article was fair. The major evidence was given by the newspaper’s first editor, Steve Vines, who testified to “frustrating" and “unpleasant" dealings with the Orien-tal Press Group.
The Next Media group won another partial victory against the Oriental Press Group in the Court of Appeal. It lost the initial trial in a lower court in July 2000, when a jury ruled in fa-vour of the Oriental Press Group over an insider dealing allegation published in Next Maga-zine against group director Ma Ching-fat. That ruling was overturned in June 2001, with the judges ordering a retrial. Lawyers for Next Magazine had cited the landmark judgement in the case involving Mr Cheng and Mr Lam in their arguments before the Court of Appeal.


SECTION 4
Net losses

The Internet has been a disappointment for the media

Two years ago the Internet seemed a force to breathe new life into old media, not only in Hong Kong but also in the rest of Asia and the world. The reality today is very different. Not only have online media failed to generate profits—this is old news—but, more worryingly, they have failed significantly to have an impact on the diversity of viewpoints in the Hong Kong media.
Hong Kong’s media have been either lucky or skilful at fending off newcomers. Either way, Hong Kong has been almost the only media market in which existing media have emerged as clear winners—admittedly badly bruised in some cases—in the online market.

However, there has been some benefit for media consumers: news, particularly financial news, has become easier to access throughout the day, particularly for office workers. If or when news takes off on mobile devices such as large-screen mobile phones or handheld computers equipped with data links, the existing online offerings would be adapted easily and find new and possibly profitable outlets.

Having in some cases slashed their staff, many newspapers are effectively producing their online offering for almost nothing. When a viable business model for Internet content ar-rives they may be better placed than any operator in Hong Kong to become the winners in the content game.

JOB LOSSES

In the last year, the dotcom bubble burst has resulted in many casualties, some of them journalists. Local publications, such as the South China Morning Post (SCMP) and Ming Pao Daily News, ramped up their online news operations with hopes of spinning them off and listing them on the second-tier Growth Enterprise Market (GEM) in early 2000, and reaping windfall capital from investors to tide over the ventures through to profitability. However, none acted quickly enough to realise a GEM flotation (although the Ming Pao Daily News raised HK$100 million by selling a stake in their online operation to technology conglomerate CCT Telecom), and when markets turned sour, cuts were swift.

LESSER OFFERINGS

The biggest bite is from Apple Daily

The most dramatic downsizing was that of Apple Daily, which in the summer of 2000 planned to hire a team of 200 to produce online rolling news with sound and even video. This one operation would have employed more reporters than all the foreign newspapers and wire agencies in Hong Kong. However, in July after the crash, it announced 98 jobs would be cut. The impact was subsequently blunted by the internal transfer of some staff. Turn to Apple Daily’s site now, and the content available is basically that of the printed newspaper with little augmentation. (Nevertheless, statistics from iamasia.com, an online-measurement company, suggest that the company has the most successful content site in Hong Kong—the “web property" with the sixth broadest reach to home users.)

Indeed, most newspaper and magazine sites are online representations of their offline prod-ucts. Two exceptions are the Ming Pao Daily News, which provides rolling news coverage throughout the day, and the Hong Kong Economic Times, whose broadband-TV operation ET-TV offers economic news updates throughout the day. ET-TV relies on broadband to de-liver conventional, TV-style news bulletins of broadcast quality on demand over the Inter-net. However, according to official figures, only about 15% of the city’s Internet users ac-cess via broadband.

Local offerings disappoint because none maximise the power of the Internet to add richer or additional content, such as interactive graphics. Even ET-TV, ambitious in scale, looks and feels similar to a conventional Hong Kong TV news bulletin.

The only attempt to tap the richness of the new medium has been made not by a media com-pany but by Pacific Century CyberWorks (PCCW), a new technology conglomerate founded by Richard Li, son of Hong Kong’s most prominent tycoon Li Ka-shing. PCCW attempted to create a fusion between TV and Internet named Network of the World, but after a typical dotcom burn rate, the venture is now on hold, and PCCW shares have plummeted.

What additional information is available on newspaper websites is invariably that which was regarded as not good enough for the print edition—extra paragraphs of detail or photographs not deemed as good as those finally selected for printing. In addition, newspapers are still unwilling to break stories in their online editions, with midday updates being routine news of government speeches and car crashes. In this sense, the Internet is only an auxiliary delivery medium and has not become an integral part of the news landscape.

Moreover, little attempt is being made to use the websites to garner extra feedback from readers. Some sites run bulletin boards; some allow for “Letters to the editor" to be filed via email. In contrast to the efforts of major newspapers in the United States, no attempt is made to create an online community with two-way interaction. One reason could be restrictive libel laws which make this a risky business in Hong Kong.

THE MONEY PROBLEM

Profitability has been the difficulty

At the root of many issues is the requirement that online operations be profitable. This is not an approach common to other businesses migrating online. For instance, HSBC, the city’s dominant bank, regards its online operations not as a profit centre, but as a cost aimed at extending its brand and improving customer service. Radio Television Hong Kong has also used its online operations to enhance service, as well as for archived programmes and news bulletins. The government-owned broadcaster may, however, decide to seek a commercial partner to help fund the expansion of its online activities.

The problem with this profit-orientated approach is that in Hong Kong online ad revenues, the most obvious source of revenue, remain pitifully low. The Internet Advertising Bureau (IAB) Hong Kong’s most recent figures show total online ad spending (including the value of sponsorship deals) for the first nine months of 2000 at HK$167 million. It may seem sig-nificant, but this figure is shared between newspaper websites, portals, stock information sites, and a whole host of other services. IAB figures also show that news and information sites received only a 16% share—a meagre HK$27 million over the nine months.

Furthermore, in the United States, for the same period, online ad revenues were US$6 billion. This means US ad revenue per Internet user was around US$40 for the period—versus US$3 in Hong Kong. Even allowing for slight differences in the measurement of users, it is clear that revenue from Internet-related ventures in Hong Kong is pitifully low and the chances of creating true online media equally low.

This exacerbates the lack of scale of the Hong Kong media. Even if ad revenues per viewer equalled that of the United States, the lower absolute audience size still means online ven-tures in Hong Kong are less economic.
With low revenue from advertising, another option is subscriptions, which have proven vi-able in limited circumstances. The SCMP charges HK$1,180 a year for access to its horse-racing database. Apple Daily considered subscriptions in autumn 2000 before taking the less risky option of simply slashing its online offerings.

Some financial news sites have also considered subscription offerings (see later section). But even in the United States, this model has proved difficult. In fact, the only website which has exploited the subscription model successfully is the Wall Street Journal, which charges US$59 a year for the day’s news plus a 30-day searchable archive. At the beginning of this year, the Journal claimed 500,000 subscribers, but admitted that for every 10 online subscribers it probably lost one print reader. Even this venture has found the going tough. Layoffs earlier this year included a handful of online reporters in Asia.

Subscription, sponsor-ship, syndication?

Sponsorship has proved useful in some cases, as have joint-venture sites in areas such as healthcare and pensions, although willing sponsors and partners are much more rare today than before the Nasdaq crash. High-end publications such as the Hong Kong Economic Times, Ming Pao Daily News and SCMP have been more successful with these kinds of site because of their better brand value.

One other tactic is syndication. Orisun, the online operation of Oriental Press Group Hold-ings, told analysts from SG Securities that they expect to break even this year by reselling content. Their customers include portals Sina.com and Yahoo! as well as mobile phone com-pany Orange, which offers news from the Oriental Daily News on its WAP mobile phones. Also selling news to Orange is the Hong Kong iMail.

In June, Next Media announced it would attempt to become the first general web site to move to charging. Web surfers outside Hong Kong who want to read Apple Daily, Easy-Finder , Sudden Weekly and Eat & Travel Weekly will have to pay HK$144 for six months from July 1st.

NEW FACES

Although the established media failed to cash in on the dotcom bubble, other new-style me-dia companies floated successfully with substantial financial gains. Impressive hauls in-cluded the HK$1.1 billion raised by Tom.com and HK$1 billion by Hongkong.com, both por-tals. 36.com, the brainchild of talk-show host Albert Cheng King-hon, and HKCyber.com, headed by radio voice and columnist Raymond Wong Yuk-man, raised HK$101 million and HK$170 million, respectively.

It’s no news that they, too, have found it difficult scraping in online profits, but online revenue does trickle in. Portals got 47% of total ad revenue in the last survey by the IAB in Hong Kong.

Nevertheless, like old-media companies they disappoint by failing to add to the media diver-sity available to the Hong Kong public. Portals' offerings are simply local news bought in bulk from pre-existing news outlets—which at least helps to subsidise the online operations of old-media.

When it became clear that the technology market depression was not just a temporary cor-rection, Tom.com and Hongkong.com tried a reverse strategy. Both decided to break into the traditional media market to try and build viable businesses based on cashflow.

This means both Hongkong.com and Tom.com, which had resources and staff with old-media experience, decided against starting new-media outlets that could have added to the diversity of media offerings. Instead, they bought up existing old-media operations.

Tom.com spent HK$60 million buying half of Yazhou Zhoukan, a respected news weekly, from the Ming Pao Daily News in March. It also paid HK$310 million in May for a 49% stake in a group formed by the merger of two Taiwanese magazine publishers. As such, Tom.com may yet emerge as a new-style publishing conglomerate. But with Tom.com ultimately con-trolled by Li Ka-shing, who already controls Hong Kong’s largest mobile phone network, largest supermarket and much else, this could yet raise serious cross-ownership issues.

Only 36.com has used cash from its listing to launch a fresh, paper publication that adds to media diversity. Teacup is a weekly magazine directly aimed at Next Magazine and Eastweek readers, with a slightly more upmarket feel. However, the popular magazine market is one of the toughest in Hong Kong: it needs luck to survive.

Prominent news website CyberDaily has stayed away from offline media so far. However, af-ter starting with a bang and sending a team of reporters to cover the Taiwan presidential election in May 2000, it has become less ambitious by the month. Its main claim to fame has been the pornographic video footage of one of its reporters conducting a so-called investi-gation into prostitution posted on its site in December 2000—gratuitous content with no news value.

Conspicuously missing is any fresh online media offering a different viewpoint. India has tehalka.com, an online news site whose investigation into arms sales came close to toppling the government. Malaysia has malaysiakini.com, described by Asiaweek in May as “the country’s only credible and independent voice". Hong Kong has little in this line.
Minor exceptions are “Not the South China Morning Post", a site that occasionally baits Hong Kong’s largest English-language newspaper, and democracy.org.hk, an English-language pro-democracy site. Both are operated as labours of love by their webmasters.

No similar sites have sprung up in Chinese, although there is one arguable exception: the web operations of the Hong Kong government itself. Although many officials decline to admit it, one reason behind the government’s drive to create a high-profile, content-rich site is that it allows for direct communication with local residents—without the message being “filtered" by a media that many officials see as largely hostile.

The lack of alternative voices may also be because the local media, despite self-censorship issues, remain much freer than that of, say, Malaysia. Readers feel well-served by well-known media companies and have not been driven to seek out alternative news sources. Hopefully, Hong Kong will never be reduced to using online media as a weapon against censorship in offline media.

MONEY FINDS MONEY

One area where the Internet has fostered some diversity, more competition and better reader service is in financial reporting. According to a Stock Exchange survey, some 1.1 million of the 6.8 million residents of Hong Kong own or trade shares. The quality of financial report-ing is therefore often a key factor behind choosing a newspaper.

Despite the dotcom bubble burst, sites providing free, fast, updated financial news have, so far, remained constant. In some cases, they have even refined their offerings. Not just simple price-finding services, Quamnet.com and e-finet.com, two of the leading sites, each employ between 10 and 15 reporters—as many as the business desks of most of the general daily newspapers.

Coverage from these sites is usually quicker and broader than reputable international wire services. While none have declared profitability, their chances appear better than those of general news or entertainment sites for various reasons.

First is the profile of their readership. Such web pages attract office workers keeping abreast of the market while sitting at their desk at work—who make good targets for advertisers.

Second are revenue streams from more than just ad banners. Financial news sites expect re-ferral income from brokerages and other financial services providers, as well as revenue from selling their news content to brokers, banks and other firms offering financial services online.

Finally, many investors already face costs for operating brokerage accounts. Financial sites attract these investors to subscriptions by arguing that their investment articles and advice can help yield better investment returns.
e-finet initially flirted with the idea of producing a free financial newspaper for commuters, mixing copy from its web journalists with paid advertisements. In June it announced it would charge HK$99 a quarter for surfers wanting more than basic services. Quamnet should soon launch a subscription option offering added-value services, such as stock advice, for HK$150 a month—an ambitious tag as this works out to about the same price as a daily print newspaper. AsiaWise, an English-language financial news and analysis site, also moved to charging in June. However, despite a general move towards charging, sites still face heavy pressure on costs. Both Quamnet and e-finet have attempted to reduce costs by outsourcing news to existing media outlets.

ONLINE AD THREAT

One of the biggest blows to hopes of building online revenue has been the ruling that online media cannot compete with offline media for stock market ads. In fact, not only has this revenue stream proved elusive for online media—this key revenue source is disappearing for offline media as well.
One of the quirks of the Hong Kong stock market is that listed companies—now totalling over 750—are required to post advertisements in one English- and one Chinese-language newspaper each time they do anything that could affect their share price, ranging from a simple change in directorships to acquisition by another firm.

The result has been forced advertising by listed companies, a steady cash cow that has par-ticularly helped the Hong Kong iMail (previously the Hongkong Standard), the lesser-selling of the two English-language daily newspapers, which often carries 10 or more pages of such advertisements as its ad rates are lower than those of the SCMP. One newspaper es-timates this requirement has pumped HK$400 million into local newspapers every year.

Online financial sites have long eyed this revenue, arguing that such companies should be free to advertise with online media, as well as offline. Their apparent victory came in March, when Quamnet and CyberDaily became authorised to accept such advertisements. Their victory was snatched away from them, however, when the stock exchange announced that traditional newspapers must still be used for such announcements. Hopes for a reversal of this ruling were dashed when it became clear that the whole practice of using advertisements to inform shareholders of important announcements was being abandoned in favour of dissemination via the official stock exchange website.

The biggest loser is likely to be the Hong Kong iMail, which reckons that such advertise-ments may be its third- or fourth-biggest revenue source, although no figures have been re-leased. Kim Eng Securities estimates that the change will mean that South China Morning Post (Holdings) Ltd, the group that owns the biggest English-language daily, will see profits reduced by 6% in its 2002 financial year.

THREATS ELSEWHERE

The loss of company announcement revenue foreshadows another consequence of the dot-com revolution: new ways of doing business online could threaten offline media. In the United States, as early as 1999, it was apparent that a key revenue stream from job adver-tisements was under threat. Online job ads are searchable, and applicants can respond with a click of the mouse. Some newspapers set up online job sites to capture online ads in their local markets, but the rates charged by such sites were much lower than those that could have been gained from print classifieds.
In Hong Kong, the most vulnerable traditional media companies were the SCMP, which relies heavily on classified ad revenue from its Saturday jobs section—often topping 100 pages—and the Sing Tao Daily News, which relies heavily on property ads.

The threat has come from a direction not experienced in the United States—from the adver-tisers themselves. Careertimes.com has been formed as a joint venture between the Hong Kong Economic Times and four of the biggest recruiters in Hong Kong: HSBC Holdings, Hang Seng Bank, Cheung Kong (Holdings) and Hutchison Whampoa Ltd. Hutchison, as operator of the largest supermarket chain and a major property developer, is a particularly key player. All the partners have put their recruitment ads into careertimes.com to give it im-mediate critical mass. At present, it is available as a jobs-only paper for HK$3, or free with the Hong Kong Economic Times. It also has a website.

Figures from NetValue, an online-measurement firm, confirm the lag online of traditional me-dia. For the first three months of 2001, none of the top three-ranked sites in any month were related to newspapers. However, both careertimes.com and the jobs site operated by the Ming Pao Daily News received good feedback, showing that those who used the sites found them useful. The online jobs site of the SCMP, which collects 60% of all offline local job ads, according to market analysts, did not make it into the ranking at all.

As for property ads, real estate agency Midland Realty has sold a 20% stake in its online arm to property developer Cheung Kong (Holdings), one of the territory’s largest property developers, which spends extensively to promote its new flats. Again, the risk is that major developers will use the Internet to directly communicate with customers—bypassing the need for newspaper advertisements.

It is too early to tell whether these and other ventures will succeed. But it is the beginning of a new and severe threat to old media—advertisers reaching consumers without the services of a media company—a threat which menaces the whole business concept of the modern newspaper, wherein cover price is but a small part of revenue because the bulk of editorial costs are covered by advertising. If this threat becomes an actual condition, newspapers could get caught in a spiral of falling circulation and rising cover prices, spelling serious pressure on the traditional concept of a newspaper unless new income streams are devel-oped.

TRADITIONAL MEDIA SURVIVE THE ONSLAUGHT

The print media have emerged from the dotcom onslaught—and subsequent collapse—relatively unscathed. The Oriental Daily News, the Apple Daily and the Sun, in that order, continue to dominate the market, through a total market share of about 75% , according to an AC Nielsen survey of readership up to June 2000.

There has been, however, some fallout among the smaller newspapers. The Sing Tao group and the Sing Pao Daily News have new owners. The Tin Tin Daily News closed after 40 years in business. It spawned three other newspapers, but they too failed to survive.

The sale of Sing Tao Holdings was announced in January 2001. The group publishes the Sing Tao Daily News and the Hong Kong iMail. The purchaser is tobacco tycoon Charles Ho Tsu-kwok, who purchased the 51.4% stake bought by the Lazard Asia Fund in April 1999 when the then-owner, Sally Aw, was unable to repay a loan to Mr Ho’s grandfather. Mr Ho said he would focus on the group’s media business and had no plans to lay off staff. Both the Sing Tao Daily News and the iMail have remained largely unchanged in design and edi-torial direction, since Mr Ho’s purchase of the group.

Another sale occurred in November 2000, with the purchase by Optima Media Holdings of the 61-year-old Sing Pao Daily News. Optima consists of Hong Kong-based companies China Strategic Holdings (formerly China Internet Global Alliance) and Star East Holdings. Both China Strategic, owned by Hong Kong businessman Charles Chan Kwok-keung, and Star East operate media-related businesses. China Strategic owns 10% of Ming Pao Enter-prises and 54% of Wide Angle Press.

There was a further twist to the story in May 2001. China Strategic and Star East announced that they would sell their assets to Capital Strategic Holdings, and then buy back the Sing Pao media assets, leaving Capital Strategic with just property and securities investments.

Media observers report that Mr Chan has close business ties with property tycoon Li Ka-shing. As such, they note Sing Pao Daily News' more sympathetic coverage in March 2001 when it was revealed that Mr Li’s son, Richard, had not completed a degree course at Stan-ford University—belying publicity material released by Mr Li junior’s company, PCCW. While many newspapers were critical of this discrepancy, Sing Pao Daily News came to Mr Li junior’s defence and accused some publications of adopting a sensationalist approach to attract readers.

The one major casualty of the year in the traditional media sector was the Tin Tin Daily News, which closed in September 2000, with the loss of an estimated 40 jobs. Several reasons were cited for the closure: fierce competition, the flagging economy, and a legal dispute involving new and existing shareholders. But confusion reigned with the launch of three re-placement publications—Everybody’s Daily News, the Hong Kong Globe and A Newspaper. Within six months, however, they had all closed. A court injunction forced the closure of Everybody’s Daily News just 11 days after it opened. The other two newspapers cited fi-nancial difficulties for their failure.

One final development of note took place during the year under review: the symbolic end of a five-year price war. In October 2000, most Chinese-language newspapers moved to in-crease their street sale price by one dollar to HK$6. Proprietors blamed rising newsprint costs and demands from newspaper retailers. The price war broke out in 1995 following the launch of the Apple Daily. It was punctuated by frequent bouts of price cutting, which now appear to have come to an end.