HKU Law and Journalism Centre Co-Host Media Law & Policy Workshop

From October 17 to 20, 2016, 30 lawyers and journalists from 10 Asian jurisdictions converged in Hong Kong for a 4-day Media Law & Policy Workshop - beset by 2 typhoons. The Centre for Comparative and Public Law (CCPL) co-hosted the event with the Journalism and Media Studies Centre (JMSC) at the University of Hong Kong, where both Centres are housed. 

      Participants from across Asia participated in sessions facilitated by media law experts from around the globe on subjects such as the international framework for freedom of expression, contempt of court and court reporting, data protection and data privacy, access to information and protection of sources, national security and sedition and strategic litigation.  Speakers included regionally based practitioners, in-house counsel, Biglaw lawyers, journalists and academics. 

     HR Dipendra, a Malaysian-based lawyer and media defense expert led an engaging session on the frontier of media law for many in attendance: online speech and digital crimes. Overall, Dipendra said many countries have scrambled to deal with freedom of speech on the Internet, taking the traditional methods of dealing with press and suggesting its blanket adoption for Internet publications. But that hasn’t worked as well as they would hope. “I don’t think most countries have worked out how to deal with publications online,” he said. Examples of countries taking traditional print policy and giving it blanket online power include the Philippines, Malaysia, Singapore and Thailand. He went on to note that while Internet penetration has risen dramatically for all countries represented at the Workshop, it has not done so hand in hand with press freedom. 

     Peter Noorlander led two sessions during the Workshop, on National Security and Sedition and on Access to Information. In the latter session, he pointed out that Freedom of Information "is not just about Access to Information, but all the laws relating to disposal of information (as well)". When challenged by audience members whose own jurisdictions faced significant challenges in obtaining material from Governments, he pointed out the success that India has recently had in their training of Information Officers nationwide. With proper and sufficient Government support, officers in India now have a systematised method of responding to requests. The discussion which followed his presentation on sedition laws and defences to sedition laws demonstrated the level of regional concern on the potential abuse of national security laws as a pretense to control the free dissemination of ideas and opinions. Noorlander reminded the audience that some of the more high-profile cases in this regard have been solved not through litigation but simply by "going big, going public, making a noise" – to draw international attention to the matter as a means of persuading governments to impose less severe penalties. He noted that victories have also been won in this space by technicalities or procedural irregularities. And while admittedly those victories were pyrrhic – it is important for advocates to understand that there are several strategies to choose from when defending clients in these spaced. 

     Other highlights of the Workshop included a lively lunch talk by the Hon. Mr. Justice Michael Hartmann, a spirited moot court exercise led by Nani Jensen Reventlow, Associate Tenant at Doughty Street Chambers and Fellow of the Berkman Klein Centre for Internet & Society at Harvard University, and a stimulating dinner talk by Gillian Phillips, Director of Editorial Legal Services at the Guardian News & Media, where she recounted her role advising the outlet about the U.S. National Security Agency leaks by Edward Snowden. 

     In the Workshop de-briefing held on the final day of the event, participants reflected on the similarities facing all jurisdictions represented in the room in terms of challenges to the freedom of expression, collection of information and reporting more generally. Participants also noted that the legal strategies and experiences shared by participants both consoled and inspired them. 

     As one trainer tidily summed it up, “The law presents the challenges. It is up to you all to challenge the law.”

     The Workshop was made possible through the generous sponsorship of the Open Society Foundations and the Hong Kong British Consulate General. Our thanks to all the participants for descending upon Hong Kong despite the onset of Typhoon Sarika and for their patience and understanding when Typhoon Haima arrived just as the Workshop concluded.

Simon Young on Scandalising the Judiciary in Hong Kong

CFA Building (Elisa Rolle)

In Hong Kong making ill-advised statements against courts or judges may land you in jail for scandalising the judiciary. It is contempt of court if a person, by words or conduct, intentionally or recklessly creates a real risk of undermining public confidence in the administration of justice (Wong Yeung Ng v The Secretary for Justice [1999] 2 HKLRD 293, [51] (CA), leave to CFA refused in [1999] 3 HKC 143).  Criticism is fine, especially in a place that treasures freedom of expression, but it should offer “reasonable argument or expostulation” (R v Gray [1900] 2 QB 36, 40) and be “within the limits of reasonable courtesy and good faith” (R v Commissioner of Police of the Metropolis, ex p Blackburn (No 2) [1968] 2 QB 150, 155), however outspoken or vigorously expressed (The Secretary for Justice v The Oriental Press Group Ltd [1998] 2 HKLRD 123, [77]). What is prohibited is “scurrilous abuse” (“a personal attack on a judge in abusive language which vilifies the judge rather than simply points out his errors”) (Oriental Press Group, ibid, [49]) or imputing improper motives or bias without any justification (Ambard v Attorney General for Trinidad and Tobago [1935] AC 322, 335). It is not the same as defamation or libel, which aim to protect the reputation of an individual; the concern is with people’s confidence in the administration of justice, an essential condition of the rule of law (The State v Mamabolo (2001) 3 SA 409, [24] (CC); Dhooharika v The DPP (Mauritius) [2014] UKPC 11, [42]). 

     Hong Kong has had at least three cases of scandalising the judiciary. The first is the infamous case of a local newspaper that carried on a “campaign against the Judiciary” as revenge for decisions made against it in several cases (Oriental Press Group, supra, [1]). The campaign consisted of a series of articles that alleged in abusive language a conspiracy between the courts and government to persecute the newspaper and culminated in a three-day round-the-clock paparazzi-style stalking of a Court of Appeal judge. These were low days for the rule of law as many of the newspaper’s readers sent in letters of support for the campaign (Oriental Press Group, ibid, [14], [20-21]). Ironically the newspaper was undermining the very institution that in the end delivered justice in its favour in two Court of Final Appeal decisions (Oriental Press Group Ltd v Apple Daily Ltd (1997-1998) 1 HKCFAR 208; Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-1998) 1 HKCFAR 279). 

     The other two cases concerned a defendant, who was known to the court as a vexatious litigant. He tried to stop a judge from presiding in his case by “indulging in an abusive attack on the integrity” of the judge, who patiently sat through the “verbal assault” (Secretary for Justice v Choy Bing Wing, unreported, HCMP4694/2003, 25 Oct 2005, CFI). The same defendant also wrote a series of letters using profanity and other abuse to attack the integrity of the court registrar (Secretary for Justice v Choy Bing Wing [2011] 2 HKC 342 (CFI)). 

     It is worth asking whether we should retain this common law offence. England and Wales abolished it in June 2013 (Crime and Courts Act 2013, s. 33; Law Commission Report No 335 (Dec 2012)). Lord Lester QC and Lord Pannick QC were strong proponents of abolition. The latter argued that confidence is what it is and prosecuting people for scandalising will not improve public confidence if it is already low ([2014] Public Law 4, 8-9). He wrote that “respect for the judiciary…is undermined rather than strengthened by the existence and use of a criminal offence which provides special protection against free speech relating to the judiciary” (ibid, 10). In Hong Kong the repute of the judiciary is solid and insults directed at it bounce back immediately upon the character of those who lobbed the abuse. But where the abuse becomes disruptive the offence helps to restore the “circumstances of calm and dignity” needed for courts to get on with their work (Arlidge, Eady & Smith on Contempt, 2nd ed (Sweet & Maxwell 1999) 16-18; Pannick, supra, 9).  Written by Simon NM Young.  An edited version of this article was published in the South China Morning Post on 28 April 2015.