Please install Flash Player to view this content.
  User ID :
  Password :
Forgot password
  Skip Navigation Links

Annual Report

Annual Report 2000 (PATRIOT GAMES - Hong Kong's media face to face with the Taiwan factor)

Annual report 2000

Hong Kong's media face to face with the Taiwan factor

Joint report of the
Hong Kong Journalists Association
and Article 19



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

Conclusions and recommendations

Section 1

A mainland official sounds warning on Taiwan reporting 5
The Taiwan factor at the government broadcaster 6
The threat of anti-subversion laws 8
The sacred flag 9
No reform for security-related laws 10
Dim day for the rule of law 10
Raid on a leading newspaper 11
Other law reform issues 12
The monitoring of human rights 12
The government's uneasy interface with the media 13

Section 2
Privacy-the flawed laws we have 15
Privacy-the flawed laws being proposed 17
The threat of new obscenity laws 18
New controls on the Internet 19
The scourge of self-censorship 19
More libel cases go to court 20

Section 3
Good news-more investment 21
Picking winners 21
Bad news-little extra diversity 22
Pushing up the stakes 23
Content is king, or is it? 23
Uncertainties and familiar problems 24


Editors: Cliff Bale, Gren Manuel and Charles Goddard. Contributors: Cliff Bale, Grace Leung Lai-kuen, Gren Manuel and Kevin Lau Chun-to
c Hong Kong Journalists Association and ARTICLE 19 ISBN 1-902598-24-5


The Hong Kong Journalists Association (HKJA) and ARTICLE 19, the Global Campaign for Free Expression, publish here our eighth annual report on the state of freedom of expression in Hong Kong, and our first of the new millennium.

On a positive note, we are pleased to report that the people of Hong Kong continue in large measure to enjoy the right to freedom of expression, and that Hong Kong society benefits from public debate and a relatively free press. But we remain concerned about various longstanding threats to such freedom, some a legacy from the period of British colonial rule, others arising from Hong Kong's re-incorporation into China.

We are especially concerned that during the past year there have been several ominous developments which threaten freedom of expression. Most worrying have been statements by Chinese officials on the question of Taiwan's sovereign status, and whether the media should be free to report views which contradict the Beijing position that Taiwan is an inalienable part of China. Though they appear not to have had an immediate effect on the coverage of Taiwan in the Hong Kong media, these interventions should be regarded as part of a process of opinion- and agenda-setting by the Chinese government, and as a shot over the bows for the media which maps out no-go areas for the future.

The Hong Kong government's defence of freedom of expression in the face of what clearly has been an interference in the autonomy guaranteed to Hong Kong under the "one country, two systems" formula, has been tepid. This is unfortunate. The administration (not uncoincidentally, it seems) is readying itself to draft legislation prohibiting, among other things, secession and subversion under Article 23 of the Basic Law. Against the background of China's efforts to bring Hong Kong into line with the mainland in these areas, the concern is that the legal basis may yet emerge by which publications could be prosecuted for expressing views that presently are part of the normal (and rightful) discourse of life here.

As in our previous reports, we include here specific recommendations to the powers that be, here in Hong Kong, in Beijing, and in the broader international community. These set out measures that should be taken to strengthen existing safeguards for freedom of expression and to ward off future possible challenges to the full enjoyment of this fundamental human right by all the people of Hong Kong.

Upholding the public interest and the broad health and vigour of society here in Hong Kong is the principal purpose of this report, and so we look to the HKSAR government to give careful consideration to our proposals and recommendations. As always, we remain ready and available to assist the authorities in bringing about their implementation, to strengthen freedom of expression and guarantee the human rights of all the people of Hong Kong.

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

Conclusions and recommendations

The past year under review has seen several disturbing developments, although they have not yet translated into any significant deterioration in freedom of expression. The most worrying developments touch on the sensitive issue of national sovereignty, in particular the question of Taiwan and whether the media should be free to report the views of those who oppose the Beijing line that Taiwan is an inalienable part of China.

There have been a series of incidents which have had a negative effect on independent media coverage relating to Taiwan. First, Radio Television Hong Kong came under fire for airing remarks (controversial in China's eyes) by Taiwan's senior representative in Hong Kong. Then, following Taiwan's presidential elections in March 2000, a senior Chinese official in Hong Kong warned the media not to report the views of Taiwan independence advocates. Finally, there were indications of Hong Kong government moves to develop laws prohibiting treason, sedition, subversion, secession and the theft of state secrets, pursuant to Article 23 of the Basic Law. There is real concern in Hong Kong that these laws could provide a legal basis for taking action against publications which report independently on Taiwan, on the basis that Beijing considers such reporting to be subversive or secessionist.

At the same time, the media has been facing intense pressure to put its own house in order, as a result of growing public concern about the state of media ethics. The challenges include:

l A proposal by a Law Reform Commission sub-committee to create a statutory press council to deal with privacy complaints;

l Moves by the government to tighten obscenity laws; and

l Attempts by the Privacy Commissioner to curb media activities in the name of more comprehensive privacy protection.

Unfortunately the credibility crisis currently faced by the media could undermine public support for any moves by journalistic organisations to combat the very real and significant danger of the government enacting draconian anti-subversion laws. In short, the public may not be willing to support the media if it fails to take concrete action to curb its excesses.

Given these developments and concerns, the HKJA and ARTICLE 19 call on the Hong Kong government to take the following action, in order to ensure proper respect for the right to freedom of expression:

1. Bring its laws and practice regarding freedom of expression fully into line with its international human rights obligations, including under the International Covenant on Civil and Political Rights (ICCPR).

2. Urge the Chinese government and its representatives to respect Hong Kong's autonomy and refrain from interfering in any matters affecting freedom of expression in the Special Administrative Region (SAR).

3. Respect 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 government should seek the deletion of the concepts of subversion and secession from the Basic Law. If this is not possible, then the government must ensure that any laws in this area meet the standards of Principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.

4. Amend other security-related laws restricting freedom of expression and information and bring them into line with the International Covenant on Civil and Political Rights. These include the Crimes Ordinance, the Official Secrets Ordinance, the Emergency Regulations Ordinance, and the Interpretation and General Clauses Ordinance, which allows the police and other law enforcement agencies to search for and seize journalistic material
5. Strengthen the editorial independence of the government-owned broadcaster, Radio Television Hong Kong (RTHK), by enacting legislation formalising the existing administrative charter, which guarantees the station's autonomy and editorial independence.

6. Enact freedom of information legislation giving individuals an enforceable right to access information held by public authorities, based on the principle of maximum disclosure, limited and narrowly drawn exceptions, and the provision of an effective appeal mechanism.

7. Resist calls for the creation of a statutory media council, which by its very nature would invite interference in ethical matters which are better dealt with through self-regulatory mechanisms.

8. Refrain from moves to render obscenity laws even more restrictive and to develop special rules regarding obscene material on the Internet. Existing legislation is more than sufficient to deal with any problems in this area.
The HKJA and ARTICLE 19 also call on the Privacy Commissioner to refrain from any action which may prevent journalists and news photographers from doing their jobs, including providing the public with information on matters of public interest. In particular, it should not bar the taking of photographs for journalistic purposes and place barriers in the way of a free flow of information.

We also call on media proprietors and senior editors to take the following action:

l Improve ethical standards of publications. In particular they should adhere to the code of ethics recently adopted by four media organisations, including the HKJA, and incorporate the code into the employment contracts of journalists.

l Resist self-censorship. Although there have been no major allegations of self-censorship over the year in review, pressure is again building. Comments by mainland Chinese officials on Taiwan reporting are an ominous sign. Such pressure should be resisted.

We further call on the Chinese government to refrain from any action that may curb freedom of expression or inhibit legitimate reporting activities. It should 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 local journalists working on the mainland.


The government and the Taiwan question

The issue of Taiwan's sovereign status, and how this is conveyed to the public in the Hong Kong SAR, has put freedom of expression and freedom of the press under considerable pressure during the year under review. Hong Kong, and particularly Hong Kong's media organisations, are increasingly being caught in the crossfire between Taiwan and Beijing, as China steps up its efforts to co-opt the SAR into the battle against the so-called renegade province, or, at the very least, make it toe the national line.

This strategy will undoubtedly test whether Hong Kong's media can stand up to the Chinese state, and whether Hong Kong can maintain its position as an autonomous region within China. The media so far does not appear to have been seriously affected. Media organisations generally denounced China's moves in this area, and have continued over the past year to report issues of a sensitive nature, including on Taiwan and on the not-so-dissimilar issue of separatist activities in China. Arguably, though, the Hong Kong media (with some exceptions) has never been especially balanced or open-minded about such sensitive issues.

The developments of the past year are, in our view, especially ominous. Statements by senior Chinese officials about how the Taiwan issue should be reported in Hong Kong, though rebuffed by the media and (to a much lesser extent by the SAR government), are important not so much because they are expected to change the way the media tackles Taiwan now. Rather they are creating an environment in which coverage of this issue is expected gradually to become circumscribed. Increasingly, no-go areas for the future are being mapped out.

This opinion-setting will be crucial (and may even be aimed specifically at) the process now under way to prepare legislation under Article 23 of the Basic Law on, inter alia, secession and subversion. The government, whether it is second-guessing or indeed taking its orders from Beijing, will inevitably be putting forward in the promised consultation process China's concerns on this matter, and will no doubt record positive feedback from pro-Beijing political and business groups, and even, if couched in nationalist rather than freedom of expression terms, from broader sections of the public. Hong Kong is not a democracy, and such consultation processes have never been entirely transparent or inclusive.

Against this worrying background for freedom of expression, the general political environment has also deteriorated, giving lie to the government's vision of Hong Kong becoming a modern international city. Indeed, depressingly, the Hong Kong government remains as conservative, paternalistic and out-of-touch as ever. The abolition of the urban and regional councils means less electoral control of public affairs, including in the crucial area of cultural expression (culture was the preserve of the two elected councils). There is also little likelihood of meaningful political reform in the foreseeable future. Popular demands to increase democracy have been flatly rejected by the government.

A mainland official sounds warning on Taiwan reporting

Many moves against the Hong Kong media on the question of Taiwan have been made below the surface. But there was no mistaking the message of Wang Fengchao, deputy director of China's liaison office in Hong Kong (formerly the Xinhua News Agency Hong Kong Branch), who warned the media not to report views advocating independence for Taiwan.
The comments were made by Mr Wang in April 2000, in the wake of the election of Chen Shui-bian of the pro-independence Democratic Progressive Party as Taiwan's new president. They also followed an interview conducted by Hong Kong-based Cable Television with Taiwan's new vice-president, Annette Lu, in which she said the island had independent sovereignty. The interview prompted the mainland Chinese media to launch a series of stinging attacks against Ms Lu.

Mr Wang told a seminar organised by the pro-Beijing Hong Kong Federation of Journalists that:

"The media should not treat speeches and views which advocate Taiwan's independence as normal news items, nor should they report them like normal cases of reporting the voices of different parties. Hong Kong's media have the responsibility to uphold the integrity and sovereignty of the country. This has nothing to do with press freedom."

The HKJA believes Mr Wang's comments had everything to do with press freedom. In a statement, the association criticised the official's remarks as seriously damaging to press freedom. It went on: "If the media does as Mr Wang suggests, and becomes a tool for the pursuit of national policies, the independence and credibility of the media will be destroyed, as will press freedom."

On the same evening, the acting chief executive Anson Chan released a statement saying-if obliquely-that under the Basic Law, the media were "free to comment and report on all matters of current interest. They do so in accordance with the laws of Hong Kong". She also said the government had "consistently upheld the Basic Law in all its provisions, including those relating to press and other freedoms," and would continue to do so.

The following week saw supporters and opponents of Mr Wang's views coming out into the open. Mainland officials and Hong Kong deputies to the National People's Congress said Mr Wang's comments were appropriate. And five days later, on his return from a trip to North America, the chief executive, Tung Chee-hwa, seemed to concur. While he pledged to uphold press freedom, he warning too against Taiwan independence-a less than wholehearted endorsement of freedom of expression.

Worryingly, five weeks after Mr Wang's pronouncements, a senior Hong Kong government official, speaking in the Legislative Council, appeared to back down from Mrs Chan's somewhat stronger comments. The acting secretary for constitutional affairs, Clement Mak, told legislators that comments made by mainland officials on Taiwan independence were "understandable".

The HKJA and ARTICLE 19 disagree. Mr Wang's remarks were a clear breach of the "Hong Kong people ruling Hong Kong" promise made by China that was a key part of the settlement that allowed Hong Kong to return to China. Indeed, they showed a complete lack of understanding of Hong Kong's special and fragile position, even though on the surface, there has not been a discernible trend away from the current not altogether satisfactory level of reporting on Taiwan.

The Taiwan factor at the government broadcaster

After years of pressure from pro-Beijing loyalists, Cheung Man-yee-the long-serving director of government-owned broadcaster Radio Television Hong Kong (RTHK)-was moved to a trade-related post in Tokyo.

While the government professed that this was Ms Cheung's choice, the fact remains that Ms Cheung's departure came just months after a barrage of criticism against her for a programme in which Taiwan's representative in Hong Kong, Cheng An-kuo, aired his government's views on relations between mainland China and Taiwan. Mr Cheng reflected the views of Taiwan's then president, Lee Teng-hui, that relations with China should be approached on a "state-to-state" basis. Beijing regularly condemns any suggestion that the mainland and Taiwan constitute two states. The programme-part of a routine series that allows a platform for figures in the news-was broadcast in July 1999.

The controversy came into the open when an assistant director of Beijing's main office in Hong Kong, the then Xinhua News Agency, said Mr Cheng's comments were inappropriate. The official, Wang Rudeng, said the Taiwan representative

"should not promote a two Chinas policy in Hong Kong. And RTHK, as a government broadcaster, should not have allowed it."

Hong Kong deputies to the National People's Congress also criticised RTHK, accusing it of violating the spirit of the Basic Law. One prominent member, Tsang Hin-chi, said:

"(A)s a government-funded station, it ought to have self-control. (Otherwise) discussion on drafting of Article 23 laws has to start sooner... Mass media should not advocate secession."

No less than one of China's vice-premiers, Qian Qichen, also commented on the issue, saying that open support for the "two-states theory" was a violation of guidelines on relations between Hong Kong and Taiwan. He also said, without mentioning RTHK, that such matters could not be promoted in Hong Kong under the one-China principle.

The controversy died down for a while, but in October 1999 Radio Television Hong Kong was once again in the headlines, with the sudden announcement that Ms Cheung would shortly take up a trade post in Tokyo.

There had for some time been concern that Ms Cheung's removal from the post of director of broadcasting could usher in changes to RTHK's editorial independence, given that she has a reputation for being a feisty defender of media freedom. Ms Cheung admitted that she had come under political pressure, but denied that the move was related to criticism from Beijing sympathisers. She said she firmly believed that:

"the editorial team will continue to uphold press freedom and editorial independence ... As people will watch closely and are concerned, I believe that (RTHK's credibility) can be maintained."

However, critics were not so sure. A prominent talk-show host for a rival radio station, Albert Cheng, said that Ms Cheung's transfer to Tokyo "suggests a prima facie case that the move is indeed a punishment in disguise." And a vice-chairman of the Democratic Party, Albert Ho, said the move had "dealt a serious blow to our freedom of speech and RTHK's editorial independence."
In reply, the chief secretary for administration, Anson Chan, said "(A)ny suggestion that freedom of expression is dead or press freedom is dead is not only a totally unfounded and unfair criticism but an insult ... to whoever is going to succeed Miss Cheung as director of broadcasting and to the rest of Radio Hong Kong staff."

The question of Ms Cheung's successor was crucial. RTHK employees feared that the government would bring in an administrative officer either to run the station or take over the number two post. Neither of these scenarios transpired. Ms Cheung's deputy, Chu Pui-hing, was confirmed as the new director, and another senior RTHK employee, Raymond Ng, became the deputy director-albeit still in an acting capacity at the time of publication of this report. The operations of the RTHK newsroom have also not changed since Ms Cheung's departure.

However, this does not alter the fact that RTHK's status is precarious. The station operates under a "framework agreement" with the secretary for information technology and broadcasting, guaranteeing RTHK'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 broadcaster's framework agreement through legislation.

Although RTHK has continued to report on Taiwan issues, including offering extensive coverage of the presidential election and the new policies of president Chen Shui-bian, it has not offered any further airtime for personal opinion pieces by senior Taiwanese representatives. This is hardly surprising: Taiwanese representative Cheng An-kuo, whose broadcast sparked the row, was in effect thrown out of Hong Kong when his visa was not renewed, and the Hong Kong government has placed restrictions on any replacement, which means the post is now vacant.

The threat of anti-subversion laws

The Basic Law states, in Article 23, that the Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organisations or bodies from conducting political activities in the Region, and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies.

For the first two years of the Hong Kong Special Administrative Region, no such laws had been found necessary. If any state secrets were stolen, then the government never told Hong Kong residents about it. But with the new focus on sovereignty and national symbols, it should be of no surprise that this legislation, which represents a real threat to the media, has recently been receiving a higher priority.

Senior government officials have begun to give unattributed briefings to selected journalists on their plans. While drafting has not started yet, officials are now admitting that they are researching the issue. They also say there will be a lengthy public consultation exercise before a law is put to the Legislative Council. That is expected during the four-year legislative term which starts in October 2000, following elections in the previous month.

The secretary for security, Regina Ip, went public on the issue in April 2000, saying that the government was at an early stage of research. She also said Beijing would be consulted on the new laws, given that "the implementation of Article 23 of the Basic Law involves questions of national sovereignty, unification and territorial integrity." But Mrs Ip said the result of these discussions would not be disclosed. She also said that a green paper could be released, outlining possible ways forward, before actual legislation is drafted. She said there was not yet a firm timetable for completion of the whole process.

So why is the government taking such action at this time? An article published by the South China Morning Post on April 5th 2000 said that security officials were genuinely concerned about the lack of provisions to prohibit subversive and seditious activities, and the theft of state secrets. It said "(A)ctivities calling for independence for Taiwan and Xinjiang, as well as the danger of theft of secrets from the PLA garrison in the SAR were given as reasons for urgently bringing in the new legislation."

Other observers questioned whether controversy over comments made by Taiwan's Cheng An-kuo and the activities of the controversial Falun Gong spiritual movement (active in Hong Kong but persecuted in the rest of China), might also be factors worrying senior government officials.

Given the extreme sensitivity of the matter, and the chilling effect that such laws could have on freedom of expression, the HKJA and ARTICLE 19 call on the government to approach the question with extreme caution. In particular, the administration should consider seeking an amendment to Article 23 of the Basic Law, to delete references to subversion and secession.

At the very least, the SAR government must take into full account the modern jurisprudence on national security and freedom of expression. In particular, it should incorporate principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. This principle states that expression may be punished as a threat to national security only if a government can demonstrate that the expression is intended to incite imminent violence, that it is likely to incite such violence, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

There is one further concern about Basic Law article 23 laws. The chief executive, Tung Chee-hwa, spoke before the 1997 handover of the need not just to enact laws against acts of subversion, but also to ban advocacy of such acts. These would take the article 23 offences one vital step further by outlawing, for example, the advocacy of independence for Taiwan and Tibet.
Such a development would be of particular concern because the line between reporting advocacy of such acts and the actual act of advocacy is blurred. Government officials have accepted that this is a difficult area. The HKJA believes it could be disastrous for the media, and has urged the government to resist the temptation to introduce this new concept into local law. Further, advocacy laws would go well beyond the permissible limits on free expression allowed under article 19 of the ICCPR.

The sacred flag

Further signs of sensitivity about national sovereignty came in the decision to prosecute with the full force of the law two young activists who had defiled Chinese national and regional SAR flags in a pro-democracy demonstration on January 1st 1998. In fact, police failed to notice the symbolic protest until it was pointed out by reporters. But having discovered the act, the case has since been prosecuted right through to the Court of Final Appeal which, in a blow to freedom of expression, ruled in December 1999 against the activists, despite there being no conceivable threat to public order (as some arguments had claimed).

A lower court initially found the two defendants guilty, only to see this ruling overturned by the Court of Appeal in March 1999. The appeal court ruled that both the National Flag and National Emblem and Regional Flag and Regional Emblem ordinances, which criminalise the desecration of the two flags, were an unnecessary restriction on freedom of expression when measured against Article 19 of the International Covenant on Civil and Political Rights (ICCPR). It went on to rule that since these sections were inconsistent with the ICCPR, they were therefore also in breach of section 39 of the Basic Law (which entrenches the ICCPR), and therefore unconstitutional. (See 1999 Annual Report.)

The case came before the Court of Final Appeal in October 1999. During the proceedings, the counsel for the government, Gerard McCoy, asked the court to consider whether it needed to refer some issues to Beijing (much as in the right of abode case, see below). However, one of the judges, Mr Justice Ching, said:
"To refer this question would make us look like a bunch of clowns. There is simply no question, as far as this present case is concerned, of that nature."
On December 15th 1999, the Court of Final Appeal ruled in favour of the government. The chief justice, Andrew Li, said the two laws imposed a permissible restriction on freedom of expression. He went on to stress the symbolic role played by the flags in ensuring implementation of the "one-country, two-systems" concept and maintaining national unity (the flags being a "unique symbol" of the nation).

During the hearing in October, one of the defence counsel, Audrey Eu, had described the two flag laws on Hong Kong's lawbooks as the beginning of the end for freedom of speech. She had also asked where the limits would be. In his opinion, Mr Justice Bokhary said

"the answer, as I see it, is that it stops where these restrictions are located. For they lie just within the outer limits of constitutionality. Beneath the national and regional flags and emblems, all persons in Hong Kong are-and can be confident that they will remain-equally free under our law to express their views on all matters ... saying what they like, how they like."

Despite these encouraging words from one of the five judges hearing the case, civil rights groups expressed concern about the overall judgment. The HKJA expressed disappointment, and Hong Kong Human Rights Monitor said "(T)he judgment gives cause for grave concern as to the future of freedom in Hong Kong. A traditional form of protest, used many times during the 1990s, has now been outlawed."

The HKJA and ARTICLE 19 believe that, irrespective of the Court of Final Appeal ruling, the Hong Kong government should carry out a thorough review of the National Flag and National Emblem and Regional Flag and Regional Emblem ordinances, to ensure they comply fully with the spirit and letter of Article 19 of the ICCPR.

It should also be noted that in the final years of colonial rule, no action was taken over defilement of the British flag. It is also worth noting that at least one observer has made the link between the flag desecration ruling and the drafting of Basic Law Article 23 laws. A constitutional expert, Professor Michael Davis from Chinese University, expressed the view that the government would take the court's opinion as a guide to Article 23 legislation. He also said the ruling could be used to defend laws banning comment on Taiwan-mainland relations or Tibet.

No reform for security-related laws

Over the year under review, the government has failed to bring forward any initiatives to bring security-related laws into line with provisions in the International Covenant on Civil and Political Rights (ICCPR). These include the Official Secrets Ordinance, which fails to provide public-interest defences; the Emergency Regulations Ordinance, which fails to provide any real checks on when the authorities can declare an emergency; and the Crimes Ordinance, which lays down draconian offences of treason and sedition. There should be no surprises here: in the new atmosphere, relaxations of these laws would be seen as a sign of weakness. (See earlier annual reports for details.)

Another area of concern is the interception of communications. Section 33 of the Telecommunication Ordinance and a similar provision in the Post Office Ordinance give the government wide powers to intercept messages and mail. The government intended to scrap these provisions by enacting a law governing the interception of communications. The Legislative Council endorsed a private member's bill to this effect in June 1997, but the post-handover government failed to set a commencement date.

In late January 2000, the government said it was reviewing the whole issue in view of technological changes and legal and judicial developments in other jurisdictions. The secretary for security, Regina Ip, said officials would complete the review "as soon as we can", and planned to put forward revised proposals to the Legislative Council following the September 2000 elections. The proposals will be keenly scrutinised to see what they indicate, for example, about telephone-tapping activities in Hong Kong by mainland agencies.

Dim day for the rule of law

Many of these issues related to local legislation would not loom so large if journalists (and the public generally) felt they could rely fully on the Court of Final Appeal to protect fundamental rights enshrined in the Basic Law and in various international human rights covenants applied in Hong Kong. The government could huff and blow, but media organisations hauled into court could always get unconstitutional laws struck down.

However, this faith has now been shaken. The flag case, above, was one factor. But the deepest concern came about as a result of what is generally known as the "re-interpretation" of Basic Law provisions relating to an immigration case. Shortly before the second anniversary of Hong Kong's reunification with China, on June 26th 1999, the standing committee of the country's parliament, the National People's Congress (NPC), issued an unprecedented interpretation of two key provisions in the Basic Law on the right of abode in Hong Kong. The move effectively overturned a January 1999 ruling by Hong Kong's highest court on the emotive issue of which mainland people can and cannot settle in Hong Kong.

This controversy was reported extensively in our 1999 report, where we noted that "(T)he expected interpretation, and the manner in which it was sought, threaten to transform Hong Kong's legal system and, in turn, greatly diminish the safeguards inherent in the system for basic human rights, including that of freedom of expression." In effect, Hong Kong's highest court was simply over-ruled by the Chinese state-a crushing blow to the rule of law.

Concerns about the implications of the re-interpretation came to the fore once again in December 1999, when the Court of Final Appeal pronounced on the flag desecration issue, and issued a second ruling on the right of abode. This second ruling fell into line with the NPC re-interpretation, thereby overturning the first right of abode judgment. The chief justice, Andrew Li, said the controversial re-interpretation was "a valid and binding interpretation ... which the courts in the HKSAR are under a duty to follow." It went on to reaffirm the government's policy on the question of settlement in Hong Kong.

One important aspect of the ruling was the unambiguous way in which the Court of Final Appeal conceded the right of the NPC standing committee to interpret all provisions of the Basic Law. One of the five judges who heard the case, Sir Anthony Mason, said in his judgment that
"(T)he Standing Committee's power to interpret laws is necessarily exercised from time to time otherwise than in the adjudication of cases. So the expression 'in adjudicating cases' makes it clear that the power of adjudication enjoyed by the courts of the region is limited in that way and differs from the general and free-standing power of interpretation enjoyed by the Standing Committee..."

The second Court of Final Appeal ruling came in for severe criticism. None more so than from the chairman of the Bar Association, Ronny Tong, who said the failure by the government to make a public promise not to seek further interpretations of the Basic Law had damaged public confidence in the rule of law. He said, "In the Bar's view, this was and still is a Damocles sword to our Court of Final Appeal....Confidence in our legal system and the independence of our Judiciary are bound to suffer."

The secretary for justice, Elsie Leung, branded such views as "wrong-headed". And the secretary for security, Regina Ip, who handles right of abode issues, said "[T]his [re-interpretation] really is a very exceptional course of action in response to very exceptional circumstances because we were faced with an immigration problem that we cannot resolve on our own. Although we cannot give an undertaking never to seek an interpretation of the Standing Committee again, this clearly is a course of action which we will resort to very sparingly."

Raid on a leading newspaper

Even in areas in which there is no link to national sensitivities, the government has been unwilling to act. A raid on the mass-circulation newspaper, Apple Daily, has thrown up vital issues relating to police searches of media organisations-but still, no sign of any government action.
Independent Commission Against Corruption (ICAC) officers raided the premises of Apple Daily in late November 1999, in connection with a bribes for information case. (A reporter for Apple Daily and two police communications officers were arrested in connection with the case. They later pleaded guilty to the corruption charges. The reporter was sent to prison for ten months, and the communications officers for nine and seven months respectively. The trial judge noted in May 2000: "We do expect Apple Daily to be responsible in future ... even in (the) fierce competitiveness of newspaper selling.")

The newspaper launched immediate action to prevent the ICAC from using the material it had seized. Its lawyers challenged the seizure in court, arguing that the search warrants were defective. While the court action was underway, the ICAC was barred from viewing the seized material.

The newspaper lost the case in the Court of First Instance and the Court of Appeal, and then took it to the Court of Final Appeal, which in January 2000 declined permission to take the case any further. Mr Justice Litton argued that the two lower courts had not erred in law by ruling that the warrants were valid. The court also lifted the order keeping the seized material sealed.
Journalists were concerned about the case on several fronts. There were allegations that: Apple Daily managers had not done enough to prevent the seizure; ICAC investigators were able to view the seized material, even though the newspaper was about to seek an injunction preventing this; and the judge who issued the search warrants did not pay enough attention to the sensitivity of a raid on a newspaper.

However, the main fault undoubtedly lies with the law, the Interpretation and General Clauses Ordinance, which lays down procedures for searching and seizing journalistic material. The relevant provisions were enacted in 1995, in response to the HKJA's expressions of concern that the procedures for seizing journalistic material were too broad.

In a submission to the government after the raid, the HKJA expressed concern that innocent third-party sources could be placed at risk by the very broad nature of search warrants. It therefore called for the exclusion from the Interpretation and General Clauses Ordinance of any material held in confidence for journalistic purposes. It also called on the government to limit the circumstances under which journalistic material may be seized, and urged judges to consider the interests of innocent third-party sources in issuing search warrants.

Other law reform issues

The government is most reluctant to give up the powers it possesses to control broadcasting-even though it has never needed to exercise them. In January 1999, the government published a new broadcasting bill, to replace the existing Television Ordinance. The new bill focuses on the regulation of programme suppliers, dividing them into four categories, depending on whether they provide domestic or non-domestic services. The bill has a bearing on freedom of expression insofar as it reproduces a provision in the Television Ordinance which allows the chief secretary for administration to apply for a court order prohibiting programmes which are likely to incite hatred against any group of persons, result in a general breakdown in law and order, or gravely damage public health or morals.

This procedure replaced pre-1993 provisions giving the government direct powers to vet and prohibit programmes. As such, it was a considerable improvement on the former provisions. But still the HKJA felt that the wording could be tightened. In a submission to the Legislative Council, the HKJA called for the criteria leading to a possible court order to be defined more clearly. In particular, the HKJA said prior censorship should take place only where a programme constitutes "incitement to violence or to such hatred against any group of persons that violence is the likely result," or where it is likely to "directly and seriously harm public health or the morals of children under 18 years of age."

The HKJA also called on the government to introduce greater transparency into the processes whereby a television licence is granted, extended, renewed, suspended or revoked. We called for public hearings to be held in all cases except where commercial secrets are involved or where a licensee goes into compulsory liquidation.

The government rejected the HKJA's proposals on the censorship provision, arguing that the criteria in the bill were already in line with provisions in the International Covenant on Civil and Political Rights and Hong Kong's Bill of Rights Ordinance. However, the final version of the bill-passed into law in June 2000-did include a new provision stipulating that a court could issue an interim censorship order only if it was needed urgently. Provision was also made for public hearings prior to a licence suspension.

The monitoring of human rights

As the HKJA and other non-government organisations have for years been criticising the government for ignoring media freedoms, the administration has been equally consistent in ignoring such arguments. Depressingly, even strong support for the HKJA's arguments from the United Nations Human Rights Committee (HRC) has not been enough to make the government take note.

In November 1999, the HRC held public hearings into Hong Kong's compliance with the International Covenant on Civil and Political Rights (ICCPR). This was the first hearing since the July 1997 handover, and followed the submission of a Hong Kong government report, through China, in January 1999.

Prior to the public hearings in Geneva, the HKJA submitted its own report. This document highlighted the deterioration in the judicial and political environment, the threat of Basic Law Article 23 laws, the need to bring all media-related legislation into full compliance with the ICCPR, threats to Radio Television Hong Kong's editorial independence, doubts over the administration's commitment to open government, and the threat of media regulation.

Hong Kong human rights groups, including the HKJA, lobbied the HRC during the hearings. Government officials were also present to take formal questions from committee members.

In its concluding observations, the Human Rights Committee highlighted several failings in Hong Kong. Among other things, it expressed concern about the implications of the re-interpretation of the Basic Law in June 1999, the broad manner in which existing treason and sedition offences are defined in the Crimes Ordinance, the way in which post-handover changes to the Public Order and Societies ordinances could restrict assembly and association, and the need to bring government powers to intercept messages and mail into line with privacy rights.

A Hong Kong government spokesman said officials would study all the points made by the committee. However, in follow-up meetings with senior officials, representatives of non-governmental organisations, including the HKJA, came away with the impression that little would be done.

The government's uneasy interface with the media

This past year, the government has taken its campaign of "spin doctoring" and misinformation to new lengths. Hong Kong aspires to be a modern pluralistic society. Many advanced democracies, including the United Kingdom and the United States, have elevated these practices to a fine art-from these the administration clearly takes its cue. Although the government has every right (indeed it has a duty) to put its position across to the public, some of the tactics it employs are undoubtedly underhand. Indeed, it is questionable whether such tactics are really in the public interest. In our view they are often aimed at discouraging both critical journalism and media diversity by utilising selected or mainstream media to "drown out" adverse comment and different points of view. Ironically, as in the case of the Blair government in the UK, the end result could be a loss of credibility for the government itself.

Mr Stephen Lam, the chief executive's chief spokesman, has continued over the past year to take a highly active approach in getting the government's message across. When the government perceives itself to be in need of swaying public opinion, it can at times be almost impossible to find a morning talk show that does not have a senior government official pushing the official line. Although this was most true during the crisis caused by the right of abode case and the subsequent re-interpretation of the Basic Law, the government also went into top gear on other subjects. These included a highly effective campaign to persuade the Legislative Council and the public of the benefit of its generous deal with the Walt Disney Corporation to build a new theme park in Hong Kong.

New tactics have also been explored and found effective. They include:
l An ability to focus clearly on getting public opinion to a certain state on a certain date. If the government's arguments later proved not to hold water, the crucial period would have passed. This is the sort of tactic often used during election campaigns in developed democracies;

l Promotion of allies and muffling of critics. Perhaps the most obvious example of this is the use of prominent lawyers to support the government by counterbalance the views of lawyers' professional bodies, which at times can be hostile to government policies seen as eroding the rule of law. As an example, articles by prominent barrister Alan Hoo were circulated by the government to newspapers by government information staff. While there is no suggestion that Mr Hoo's views were anything but his own, it was perhaps misleading of both the Ming Pao Daily News and the South China Morning Post to print his article without informing readers that it had been circulated by the government.

l The growing use of unattributed media briefings, whereby government officials are able to hide behind a mask of anonymity over such crucially important issues as the cost of electricity supplies to Hong Kong households.
Separately, we are also concerned about the government's increasing resort to secrecy. Important documents needed to better understand government policies are often withheld. Issues subject to government secrecy include a report that considered alternative uses for the site to be occupied by the Disney theme park on Lantau Island. Having made up its mind to hand the prime site to the US entertainment giant, the government then refused to allow this report to be released.

In addition, the government reneged on a promise to release details of the largest company investigation of the 1990s. Costing no less than HK$20m, individuals named in the report into alleged wrongdoings at the World Trade Centre Group included Australian tycoon Alan Bond and powerful Macau casino magnate Stanley Ho. In 1994, officials said the report would be issued in full after all legal actions were over. In February 2000, after the last legal action had ended in failure, it changed its mind-without ever giving a proper explanation.

This is just one of many incidents over the year. And it is not only journalists who have problems. Environmental campaigners and politicians have been increasingly outspoken on this issue. For instance, pro-democracy politicians were angry that they were initially barred from seeing the government consultancy report containing the costs and benefits of Hong Kong's bid to host the 2006 Asian Games.

The government regularly produces statistics claiming that its Code on Access to Information, an administrative code with no force of law, has resulted in the vast majority of records requests being met in full. It ignores the fact that most requests are routine (see 1999 Annual Report for our criticisms in detail). The HKJA and ARTICLE 19 believe only freedom of information legislation can ensure that the government is not able to evade accountability by suppressing the embarrassing and the inconvenient.


The backlash from years of bad behaviour

In the year under review, the local media, particularly the popular press, has faced a public backlash over the malpractices of years past. Both the government and the public urged the industry to be accountable for its alleged misdeeds, in particular over sensationalist news coverage, and the publication of sexually-explicit articles and photographs.

The media's performance came in for particularly intense criticism during the public-consultation exercise on privacy issues and the (related) proposal to set up a statutory press council, and following the publication in April 2000 of government proposals to bring about stricter regulation of the publication of indecent and obscene articles. Other issues strained the media's credibility, among them the arrest and conviction of an Apple Daily reporter on corruption charges, and the decision by Asia Television (ATV) to use two well-known artistes to present the station's peak-hour news programme.

Privacy-the flawed laws we have

Last year, this report warned of the rising danger to media freedom from issues related to privacy. We wrote in 1999:

"Privacy is an area in which new threats may be emerging for media freedom. The HKJA has long supported the need to protect an individual's privacy, and our ethics committee has often criticised media organisations for indiscriminately disclosing details of a personal nature without due regard to privacy. However, over the past year, new moves apparently aimed at protecting privacy have led to growing fears that media freedom may be compromised through well-meaning attempts to bolster privacy protection."
Sadly, this has proved correct. The core problem with privacy protection in Hong Kong is that the pre-handover Hong Kong government enacted legislation-the Personal Data (Privacy) Ordinance-to protect privacy, mainly in the area of computer data, because of commercial pressure. The European Union was threatening sanctions against trading partners that failed to enact such a law, cutting them off from the flow of data that is the lifeblood of world commerce.

The result: Hong Kong now has a strong privacy law and a well-funded and activist privacy commissioner to enforce it, as in many developed countries. However, the law-drafted specifically with data in mind-is now being stretched to the media without sufficient understanding that divulging an individual's name to a junk-mail company and printing an individual's name in a newspaper are not always comparable activities.

In addition, the web of other enforceable rights in many other countries is not available here-for instance, there is no statutory right of access to government-held information and only limited right of access to information from the judicial system. The result is a lopsided regime, and one in which-unsurprisingly-many responsible media workers feel fenced-in.

It is important to note that despite claims that media organisations are major violators of personal privacy, only a small number of formal complaints to the privacy commissioner are media-related. As of May 2000, just 42 or 3% of the 1,367 complaints lodged since the law came into force in December 1996 involved the media.

Despite their low number, two of the media-related complaints to the privacy commissioner have created worrying precedents this year:

- A case of fashion: Opening the way for new controls over news photography is a case, resolved finally this March, of a woman who lodged a complaint after the mass-circulation magazine Eastweek took and published a photo of her in the street in an issue in September 1997. The accompanying caption ridiculed her taste in fashion, calling her "Japanese mushroom head". The complainant, who was not named in the article, told the privacy commissioner that the picture had been taken without her consent and that it had caused her embarrassment. The commissioner found in her favour, arguing that the taking of her photograph constituted the collection of personal data, and that this was done in an unfair manner, contrary to provisions in the ordinance.

In September 1999, Court of First Instance judge Mr Justice Keith found in favour of the privacy commissioner in an appeal by Eastweek. But at the same time, he questioned whether the taking of photographs should in fact constitute the collection of personal data. Mr Justice Keith said that he remained

"extremely sceptical about the correctness of the Commissioner's view, but since neither party wished to argue that the photograph did not amount to data, and because I have not had the benefit of any argument in support of my provisional view, I do not think that I should consider the matter further."
In March 2000, the case went to the Court of Appeal, which found by a majority of two to one in favour of Eastweek. It argued that the appeal should be upheld because personal data was not collected about an identified person, and therefore the provisions of the ordinance should not apply to this particular case. The Privacy Commissioner has decided not to appeal.
At the same time, the court deliberated on the crucial question of whether taking photographs constituted the collection of personal data, ruling that in some circumstances it could. Mr Justice Ribeiro pointed, for example, to the taking of someone's photograph "with a view to its inclusion as part of a dossier being compiled about him as an identified subject."

This is an uncertain judgement for the media, and could open the door to new and unpredictable controls on news photography. The legislative process creating the law was focused on data-and indeed further laws specific to media issues were always said to be in the pipeline. In effect, photographers are now-in certain (ill-defined)-circumstances collectors of personal data subject to the same legal constraints as banks and credit agencies.

- The Legco assistant: In March 1999, the privacy commissioner found in favour of an assistant to a member of the Legislative Council who complained that her privacy had been violated by an article in the Hongkong Standard, which listed the names and pay of the top five legislative assistants. Such information was contained in a public register to which a note had been attached, apparently without legal basis, saying that personal data could not be used without the consent of the individual concerned. The Hongkong Standard decided not to appeal against the commissioner's decision.
The HKJA is concerned because the information contained in the public register should be generally available to the public. Such information could, for example, reveal misuse of public funds. This is pertinent and in the public interest. Hong Kong legislators have in the past been found to have spent taxpapers' money extravagantly, on such items as cameras, bibles and electronic dictionaries.

Such a ruling threatens a whole range of public interest-related media activities, including investigations of poll frauds and of conflicts of interest between government officials and their private companies. The HKJA thus disagrees strongly with the privacy commissioner's ruling, believing the commissioner has completely misunderstood the purpose of the register, which is to encourage public scrutiny-precisely of the sort triggered by the Hongkong Standard.

The HKJA has pressed this point on the commissioner, but as the association has no legal standing on this matter, it is unable to lodge an appeal or take its concerns any further. However, in a meeting with the commissioner in December 1999, he indicated he at least appreciated the HKJA's strong concern.

Privacy-the flawed laws being proposed

In August 1999, a sub-committee of the government-appointed Law Reform Commission issued two consultation papers on privacy. Both were potentially damaging to press freedom.

One of the papers focussed on privacy and the media. It concluded that the media's infringement of privacy was now so bad that a statutory Press Council for the Protection of Privacy-its members appointed indirectly by the chief executive-should be set up. In brief, the sub-committee's report argues that while media self-regulation may be the best option, it is not feasible "because the press industry in Hong Kong is by its nature unable to regulate itself effectively or to establish any body to do the same." In effect, it argues that the two main media organisations in Hong Kong-the Oriental Press Group and Apple Daily-are unlikely to participate in any self-regulatory body. Given the two media giants control an estimated 80% of the print market, this will render such a body ineffective.

The report goes on, therefore, to advocate the creation of a Press Council for the Protection of Privacy to deal with complaints from members of the public on privacy-related matters. The proposed press council would cover only registered newspapers and magazines, and not broadcasters, which come under the jurisdiction of the Broadcasting Authority.

The sub-committee proposes a cumbersome system for appointing the council's 12 to 20 members, half of whom would come from the media profession and the other half from the public. The chief executive would appoint a person of high standing to appoint the three members of an appointments commission who in turn would select the members of the press council. This is an indirect way for the chief executive to appoint the members of the council. In addition, the privacy commissioner, who is a public servant, would become a public member of the council. This adds an element of direct appointment.

The council would be funded by a levy imposed on all newspapers and magazines registered under the Registration of Newspapers Ordinance. However, the sub-committee also concedes that if this is not feasible, then the government might have to bankroll the body. The council would have the power to consider breaches of a privacy code, to be drawn up by the council, and to fine publications up to HK$500,000 for a first offence, and up to HK$1m for subsequent offences.

The second paper was on civil liability for invasion of privacy-giving people the right to sue for damages, including hurt feelings, if their privacy was invaded. This law, something of a legal experiment that many common-law jurisdictions have shied away from, proposed a list of public-interest defences aimed at allowing the media to continue investigative activities. But the report failed to address whether the proposed privacy controls were necessary and proportional. It failed to list a single practical case in Hong Kong in which real problems, which the HKJA acknowledges exist, would have been resolved.
In his annual policy speech in October 1999, Chief Executive Tung Chee-hwa weighed into the debate, noting that "(t)he SAR Government will continue to protect press freedom in strict accordance with the Basic Law. But we also believe 'press freedom' should not become a pretext for disregarding media ethics." He added: "This is an issue of prime public concern which deserves the Government's due attention."

The sub-committee's proposal to set up a statutory press council met with overwhelming rejection by journalists. In a survey conducted by Lingnan University, more than 70% of the 1,026 journalists polled voted down the recommendation. The majority (52%) also expressed a preference for the media to adopt an internal regulatory mechanism to resolve ethical problems.
But there was some confusion about whether such mechanisms could work. A significant 42.5% of respondents were neutral on this question. About 27% thought the measures would work, while almost 20% believed they would not. In response to a question as to whether a statutory non-government monitoring organisation should be set up, almost 56% agreed to a greater or lesser extent.

Media organisations also came out unanimously against the sub-committee's proposal, arguing that the press should look after its own affairs, and that it was dangerous for the government to play any role in the affairs of the industry. However, representative organisations differed over how to tackle the question of media intrusion.

The Newspaper Society, which is composed of owners and which has traditionally shied away from ethical issues, has decided to set up a non-statutory press council primarily to tackle privacy issues. It is expected to be formed in July 2000, but is unlikely to include representatives of the Oriental Press Group and Apple Daily. In a controversial move, it is also seeking an exemption from defamation charges.

Four other media organisations-the HKJA, the News Executives Association, the Hong Kong Federation of Journalists and the Press Photographers Association-have compiled and released a joint code of ethics, which has won backing from 18 out of 27 mainstream print and electronic media groups. However, there has been considerable resistance to a call by the HKJA to have the code incorporated into employment contracts, in a bid to protect journalists from unethical demands by employers.

The privacy sub-committee has decided to revisit the question of how to tackle media intrusion in the autumn of 2000, with a final Law Reform Commission report expected next year. There is as yet no indication as to whether the sub-committee will revise its call for a statutory press council. But it will almost certainly take into account moves by media organisations to tackle ethical problems.

The HKJA and ARTICLE 19 would urge the sub-committee 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. It should also allow the media to tackle ethical problems on its own through a self-regulatory mechanism. At the same time, the media industry itself must move rapidly to take a more ethical approach towards journalistic activities, if it wishes to avoid the path of government-imposed regulation.

The threat of new obscenity laws

In April 2000, the government released a consultation document aimed at controlling the publication of obscene and indecent material in the media, including the Internet. The issue had been under discussion for some time, with community groups urging the government to take action against the publication in mass-circulation newspapers and magazines of guides to prostitutes and of photographs of scantily-clad women.

The Control of Obscene and Indecent Articles Ordinance already regulates the publication of such items. Obscene articles are banned, while indecent publications must be wrapped in plastic bags, so that minors are unable to look through them at news-stands. They are on sale only to adults.
The government is now proposing to extend these controls, by introducing an identification system for persistently offending publications. According to the proposals, such publications would have to carry warnings as well as a diagonal red line across every page, and would be available for sale to adults only. Maximum fines for publishing obscene and indecent articles would be doubled.

The acting secretary for information technology and broadcasting, Eva Cheng, said the measures were not aimed at restricting the free flow of information. Rather, she said the government was seeking to strike a balance between the interests of young people and the freedom of adults to gain access to information.

The HKJA came out strongly against the government's proposals, arguing that the existing law was more than sufficient to tackle the problem of genuine obscenity and indecency. We argued that many of the government's proposals were in contravention of natural justice and risked being manipulated to punish media organisations which may have annoyed the government for political reasons.

The government received 3,550 submissions on the obscenity issue at the end of its two-month consultation exercise. Officials have indicated that they might drop the proposal to stamp a diagonal red line across every page in an offending publication. But they are likely to pursue other proposals, and legislation will probably be introduced soon after the September 2000 legislative elections.

New controls on the Internet

The government's consultation document on obscenity has also revived proposals dropped by the pre-handover government to censor the Internet. In short, Internet service providers will have an obligation to block obscene sites, once they become aware of their existence. Failure to do so could result in prosecution. They will also have to provide filtering tools for customers.

This proposal, if it becomes law, would force service providers to set up an elaborate system of blocked sites. This could set a precedent for similar action in other areas, for example sites discussing the activities of independence advocates in Taiwan or Tibet. This is not only a dangerous move. It could also prove harmful to Hong Kong's economy, to say nothing
of the city's reputation as a base for e-commerce operations.

The scourge of self-censorship



Self-censorship remained an area of concern in the year under review, despite continuing coverage of sensitive issues such as dissident and separatist activities in mainland China and the activities of pro-independence politicians in Taiwan. Indeed, the media's critical response to the political pressure exerted by a senior mainland official, Wang Fengchao, on the question of Taiwan reporting, demonstrated that journalists and publications were ready to safeguard press freedom.

At times, ironically, the media has been accused of over-reacting to issues. Critics pointed to the reaction to the government's transfer of the former director of broadcasting and head of Radio Television Hong Kong (RTHK), Cheung Man-yee, to a trade post in Tokyo. Her image as the defender of RTHK's editorial independence was almost certain to politicise the reasons for her move in the local media. Whether the issue was over-exaggerated or not, it revealed that the local media regarded any major changes at RTHK to be a symbolic threat to press freedom.

Other sectors of the media faced charges of self-censorship. For example, in July 1999, the Mass Transit Railway Corporation (MTRC) was criticised by a book distributor for suspending the promotion of a controversial book written by the then Taiwan president, Lee Teng-hui. The MTRC later explained that the controversy was due to a miscommunication between itself and the advertising agency. However, the explanation drew extensive public discussion as it coincided with the public criticism by senior officials in Beijing of Mr Lee's "two-states" theory.

In another case, a major paging company with mainland links, China Motion, came under fire for its policy of not carrying messages bearing the name of the spiritual group, the Falungong, which is banned in mainland China, but permitted in Hong Kong. Hong Kong's telecommunications regulator, OFTA, intervened, and the paging company eventually agreed to transmit sensitive messages within Hong Kong, though not necessarily beyond the SAR's border.

There were also allegations, too, of media bias in the presentation of important stories. For example, critics accused some newspapers of covering the March 2000 presidential elections in Taiwan in a one-sided manner. These publications were accused of supporting candidates who were less provocative in Beijing's eyes. Other critics alleged that publications were focussing on dramatic events, such as conflicts and protests, to the detriment of critical analysis of the election dynamics. The latter, they claim, would have led to a greater understanding of why the eventual winner was Chen Shui-bian of the pro-independence Democratic Progressive Party.

More libel cases go to court

Our 1999 annual report made reference to the growing use of libel suits against the media. This trend has continued in the year under review and has started to prompt calls for libel laws to be reviewed. The most significant case over the past year involved a three-year dispute between the Oriental Press Group and Radio Television Hong Kong (RTHK). In November 1999, the Court of Final Appeal overturned an appeal court ruling ordering RTHK and presenter Claudia Mo to pay damages of HK$80,000 to the Oriental Press Group and Eastern Express Publisher in connection with comments made by Ms Mo about the increasing use of libel suits by the Oriental Press Group against other media organisations.

The chief justice, Andrew Li, said the original judgment, made in a lower court, should be restored in the interests of the defence of fair comment on a matter of public interest. Another judge hearing the case, Sir Anthony Mason, noted:

"In a society in which there is a constitutional guarantee of freedom of expression, no narrow approach should be taken to the scope of fair comment on a matter of public interest as a defence to an action of defamation."

However, the media lost another case in which the effectiveness of the "fair comment" defence was at stake. The Court of Appeal upheld the judgement of a lower court that Commercial Radio talk-show hosts Albert Cheng King-hon and Peter Lam Yuk-wah defamed a lawyer in a programme broadcast in August 1996. The counsel for the talk-show hosts argued that the lower court judge had misdirected the jury on the element of malice, thereby defeating the defence of fair comment. The Court of Appeal rejected the counsel's argument.

In February 2000, three other talk-show hosts were found not to be liable in a case in which a caller to a Commercial Radio phone-in programme made comments about the Oriental Press Group. A jury did, however, find the radio station liable for the comments. It decided that the defence had failed to prove the remarks were either true or substantially fair comment.

Such cases prompted some observers and academics to suggest that changes were needed to the law on defamation. A City University law lecturer, Anthony Law Man-wai, said Hong Kong's defamation laws were not very clear. He also suggested that honest comments that were not totally fair should not necessarily be considered defamatory.

Another academic, journalism professor Chan Yuen-ying, called for libel laws to be reformed "in an effort to foster robust public debates." She noted that the burden of proof now falls on defendants to prove in court the truth of every word they say. She said this "stifles opinion and the free flow of ideas."


New media, new problems

A major development during the year under review has been the strong growth in the dotcom sector and the creation of a multitude of new Internet "publications". This has fuelled demand for journalistic content as it has also created new jobs for journalists at a time when the traditional industry was still recovering from the Asian economic crisis. In some cases, this has left the "old media" desperately short of talent and forced to hire relatively less experienced staff.

The dotcom craze, which hit Hong Kong with a vengeance in late 1999, should in theory lead to greater media diversity: at present, just two media organisations-the Oriental Press Group and Apple Daily-command almost 80% of the traditional print market. Whether media diversity will be improved by the Internet trend remains to be seen. A word of caution. Some of the more influential entrants to the dotcom market are existing newspaper and broadcasting organisations, including the market leaders.
Separately, while there have not been any significant closures during the past year, there have been a number of lay-offs in the traditional sector as the regional economic crisis continued to make itself felt in Hong Kong, particularly during the first half of the year under review. Asia Television (ATV) shed 600 jobs, while Tin Tin Daily and Hong Kong Daily sacked a total of about 100 employees.

There were also changes in the English-language newspaper market. In May 2000, Sing Tao Holdings, following its take-over by Lazard Asia, launched a new tabloid newspaper, Hong Kong iMail, to replace the Hongkong Standard, which had been buffetted by a circulation fraud. Prior to the launch of the new tabloid, the dominant English-language newspaper, the South China Morning Post, underwent a major design revamp.

Good news-more investment

First, the good news. This year has seen an explosion in spending by both new and old media-leading to a recruitment bonanza. Apple Daily's Internet operations may soon be employing close to 200 staff-in many cities this would be enough to run a major daily newspaper and its Internet arm. Newcomers too are hirers: Quamnet, e-Finet and a string of other online financial news services typically employ at least 10 journalists. A string of online operations covering technology have also been set up, again recruiting staff.

In addition, many of the US-based financial or technology news services are using Hong Kong as a base for Asian coverage-a very positive development. Some, such as the Motley Fool online finance site, are employing experienced journalists full-time to work as their Asian or China correspondents, or as columnists.

Picking winners...

Without doubt, many new e-jobs are lowly. Some online journalists are nothing more than collectors of press releases, who attend the first five minutes of a press conference then leave to relay three sentences back to their online newsroom-perhaps covering five or even ten such "stories" a day. In extreme cases, these journalists simply hold mobile phones aloft, transmitting speeches or presentations back to their head office for instant webcast.

Not all new jobs are so basic. Many of the big-spending sites have hired their own photographers and artists to try and tell the news in a more interactive style. Many experienced writers and editors are also working online, including some within portals and other non-traditional media businesses. In some cases, the short deadlines and limited editorial checks of online publishing mean employers want staff who have more experience, not less.

Yet despite the recruitment efforts of new players, the big winners look like being the established media players. They are able to use their existing workforce as reporters for their online editions. Already many news organisations make use of their online editions to publish material they are unable-for reasons of space-to publish in their paper edition. In addition, radio stations in particular are able to generate a new revenue stream selling their news to online ventures which want to add news to their site.

All-day online update services offered by most of the major daily newspapers certainly offer a service for readers. Although often skimpy and confusingly organised, they offer readers an alternative to waiting for the evening TV news.
Increasingly, reporters in the print media in particular will attend a news event and file a short piece (under intense time pressure) for an Internet update-sound files for a web site and a longer article for a traditional newspaper.
This type of multi-skilling requires more training and higher pay-areas long neglected by media proprietors. The trend is also changing the nature of journalists' salaries. At least two major media groups are now offering journalists share options, one to all its journalist staff, the other only to senior journalists. In the latter case, there is a certain irony. Share options are used in Internet start-ups to sweeten staff to low salaries and long hours-conditions many junior journalists endure already: yet it is their editors who are getting the share options.

Bad news-little extra diversity

But all this is a far cry from three years ago when many believed that new media ventures would be launched on the Internet only. No viable business model has yet emerged which would support such a venture. The rush online has pushed up salaries for skilled staff, pushing up costs. The rush also means advertisers have a wide choice of venues for their banner ads, pushing down revenues.

Certainly, there have been online news organisations that have made their mark. Quamnet, e-Finet and a few other players have succeeded in offering financially viable stockmarket news services-but they have greater opportunities for revenue through e-commerce than news services. Their articles may influence the stockmarket and may be picked up by mainstream news organisations. Yet their core business is provision of equity prices, not news. Quamnet's Chin Man admitted as much in a speech in May when he labelled his journalists "marketing tools".

For more general news and comment sites, the jury is still out. A venture known as has been launched by popular radio host Albert Cheng and two management consultants, while an online newspaper, Cyberdaily, is attempting to tackle the established players with an online-only newspaper. Cyberdaily's activities have included such costly ventures as sending staff to cover the Taiwan presidential election and assigning no less than six journalists to attend the closed-door pre-briefing for the annual government budget.

In entertainment news, a site named has been set up by a group of experienced media figures. In addition, a site known as RadioRepublic is attempting to give Hong Kong the long-overdue public-access broadcasting denied to traditional outlets. This commercial venture offers a forum for political, religious and social groups to spread their views, a first for Hong Kong.

However, with the exception of RadioRepublic, this is all a long way from the hopes that new-flavoured media outlets would spring up. The new players see the web as a new distribution tool that allows a start-up to take on traditional media on their own ground at reduced cost, not as an opportunity to create new types of content or explore radical new areas of coverage.

Pushing up the stakes

New players must also contend with massive spending by old players. Publishers and proprietors have been mesmerised by the Internet, in some cases under pressure by stockmarket analysts who have threatened to mark down any firm without an Internet strategy. Even those without a stockmarket listing have seen the chance of a lucrative initial public offering-although the sharp decline in technology stock values has lessened this hope.

The result is that many organisations have been investing heavily at a time when their traditional media business has yet to return to full profitability after the Asian financial crisis. A sampling of the moves this year include:

l Apple Daily publisher Jimmy Lai visited Silicon Valley to find web talent, and is building an online news team of 200. The online news operation will run 24 hours a day, 365 days a year and will dwarf the Hong Kong operations of traditional wire services such as Reuters;

l A spin-off from the online operation of Ming Pao Daily News gave the former a valuation greater than that of its paper parent, which produces the editorial content for the site. The newspaper spun off its online publication business,, in February 2000, attracting an investor that gave the newly-born business a market valuation of HK$1bn-larger than the market capitalisation of parent Ming Pao Enterprise as measured by its share price a few months before the deal. intends to employ 170 staff, mostly content producers, to transform the 10 newsrooms of the Ming Pao Group into multimedia operations.

Content is king, or is it?

Perhaps the most audacious move of the past year was by Metro Radio. This group had its Internet operations bundled by merchant bankers into a new corporate vehicle, which was renamed With the vague promise of support from other parts of the empire of its main owner, tycoon Li Ka-shing, this sparked the biggest Internet frenzy the Hong Kong stockmarket has ever seen, with police having to control thousands of would-be buyers of the firm's shares. The number of would-be investors far exceeded the site's registered user base. The venture's share price has since slipped, reflecting general trends in the market.

The frenzy highlighted the upside for existing media ventures. Two years ago, the slogan in the US was "content is king"-and with their teams of reporters, editors, photographers, designers, established brandnames and columnists, old-media organisations appear still to be the kings of content in Hong Kong. Outsiders wanting to break into the Hong Kong market face high costs for translation, competition for staff and a lack of name recognition.

The ease with which content can be moved from one media to another means the electronic media can jump in too. As a result of the Internet frenzy, Metro Radio is now offering news updates online every ten minutes, while listeners to its airwave broadcasts get news every half-hour. TVB has spun off its online business,, and sold part of it to a Malaysian investor. It intends to group all its satellite and pay services together with its online business to create a multimedia corporation. TVB decided to offer a 24-hour news service and hired Loh Chan, former publisher of Apple Daily and news controller of Cable TV, to prepare for the expansion. ATV, still the laggard of the two free-to-air stations, is also stepping up its web work.

Commercial Radio, the dominant commercial radio broadcaster, announced it would supply content to Pacific Century Cyberworks, Hong Kong's biggest Internet conglomerate. With Cyberworks run by Richard Li, son of Li Ka-shing, the deal means both major commercial broadcasters are within the Li family orbit.

The public-service broadcaster, Radio Television Hong Kong (RTHK), was once the leader in the Internet field, offering webcasts of programmes six years ago thanks to assistance from Chinese University. It too has new opportunities-although it has yet to plunge into selling its content wholesale to other web ventures. Without spare government revenue for investment, and unwilling itself to enter into commercial deals, the station's Internet development risks stagnation.

The huge spending of old-media companies on their net ventures, however, ignores many of the problems that have already been identified in the US. The "content is king" slogan is no longer heard so often there now. Indeed, the cost of generating content is much higher than most had anticipated-and the revenue from advertising much lower. Competition for ad revenue and reader attention is also much tougher. The result is that many content-based businesses have found life more difficult than they had expected. This could well turn out to be the case in Hong Kong. Indeed, in June 2000, the Internet arm of the South China Morning Post,, announced it was laying off 18 employees. The Internet edition of Next magazine has also sacked a limited number of staff.

Uncertainties and familiar problems

The fundamental question for this report is whether the Internet surge will promote freedom of expression in Hong Kong. This is of course difficult to answer, given how new the trend is. There are undoubtedly positive signs-brand new outlets and new concepts, such as RadioRepublic.

Hong Kong has for many years been a city with a large number of news organisations, even if these have been increasingly convergent in their reporting and presentation. Now the numbers are even higher, courtesy of Internet publications. These can be set up easily, without many of the costs associated with traditional print, and without having to go through government registration procedures, which are obligatory for traditional outlets.

So far, however, the signs are that many of the new media operations are converging to the same set of values as their offline rivals. And they all seem to agree on one key issue-that the new technologies are a good thing. With large newspaper advertising sections devoted to new gadgets and to massive dotcom advertisements, it is hardly surprising there is a strong air of optimism about all technology-related news, not to mention flattering profiles of new dotcom billionaires like Richard Li, praising everything from their business skills to their haircuts.

There are worrying signs on another front-the potential for succumbing to influence and the creation of conflicts of interest for the sake of profit. Some unusual deals have been struck in the Internet frenzy. For example, when the Ming Pao group sold half its online operation, the purchaser was a telephone-equipment manufacturer in which the Xinhua News Agency-China's official news agency-has a stake of almost 10%. The same online arm of Ming Pao has also entered into a deal to offer a health portal in association with the Hong Kong Sanatorium, an expensive private hospital.

Self-censorship is another problem which has emerged in the Internet sector. In April 2000, of the most frequently visited web-sites in the territory-was discovered to be exercising self-censorship in its chat-room and discussion groups. Some net users found that the website operator deliberately deleted sensitive messages relating to the independence of Taiwan or Tibet.

The chairman of the website, executive councillor Raymond Ch'ien, argued that the website should avoid sensitive issues given's strong association with mainland interests (it is a subsidiary of Nevertheless, his explanation failed to prevent protests by site visitors. The website acknowledged their reaction and eventually lifted the ban on sensitive topics.

Depressingly, is one of the territory's major sites-a fast-growing Internet conglomerate with extensive content provision of its own that could one day rival existing media outlets. Is such an organisation-so quick to engage in self-censorship for commercial reasons-the future? As with much to do with the Internet, the jury is still out.



2000-07-01   updated more
Previous: Annual Report 2001 (FOLLOWING THE FLAG - China's sensitivities threaten freedom of expression in HK)
Next: Annual Report 1999 (THE GROUND RULES CHANGE - FOE in HK 2years after the handover to China)



Powered by   

Judgement (19-08-2015)


HKJA's Facebook Page

  2013 Annual Rpeort

2018 Annual Report: Candle in the wind

2017 Annual_Report: Two Systems Under Siege

2016 Annual Report: One Country Two Nightmares 

[ Press Release ] [ All years ]

  2009 Human Rights Press Awards
  The20th Human Rights Press Awards [Details]
  China News reporters Harassment Form
  Online Questionaire for China news reporters on harassment at work"
..... [
Online] / [Paper Form]
  17th Consumer Right Press Awards
  "17th Consumer Right Press Awards "  


HKJA's Publication: "The Journalist"

A publication provides updated news about HKJA and media industry.. [ Details ]


  Subscription to "People will not forget"
  "People will not forget" - A HKJA's Publication for the June 4 Incident
Online Version .. [ Detail ]
Subscription .. [ Detail ]
  Kevin Lau Incident Concern Group


Other Publications
  Reporter Manual in China