New Book: Law and New Media: West of Everything (Edinburgh University Press)

Law and New Media: West of Everything
Edited by Christian Delage, Peter Goodrich, Marco Wan
Edinburgh University Press

May 2019, 280 pp.

Description: In this volume, international specialists from new and established domains of law, media, film and virtual studies address the emergence of the jurist in the era of digital transmission. Examining the jurisprudence of new visual technologies – from the cinema of the early twentieth century to the social media of our own time – this volume explores the multiple intersections of these visual technologies and the law from the theoretical insight they generate to the nature of law to the impact they have on doctrinal development.

     Part One tracks the media, the technologies and apparatuses of modern law. It looks specifically at the acoustics of architecture, emblematic texts, films of trials, the prohibition of cameras in courtrooms and the rules of contempt, televised reporting of law, and the multiple fora and chat rooms of Facebook, vblogs, #hashtag law and the mobile-optimised web. Part Two examines the jurisprudential questions raised by new visual and virtual reality technologies of the 21st century. Will social media lead to social law? The force of legal remediation? Virtual courts and online judges? Paperless trials? Electronic discovery? All of these developments impact how we conceive of the practice of law.

Key Features

• Includes an international range of contributions and coverage, from the United States and Europe to the Middle East and China
• Presents a firm historical foundation for considering the connections between law and new forms of media
• Includes a range of contributions from established scholars and promising new voices in the field
• Examines a wide range of new media, from online platforms to virtual reality.

Contributors

Michele Castaneda, Brown University; Emanuele Coccia, EHSS Paris; Christian Delage, Université Paris 8 & Director of IHTP; Claire Demoulin, Université Paris 8 & IHTP; Daniela Gandorfer, Princeton University; Peter Goodrich, Cardozo Law and NYU Abu Dhabi; Thibaud Guichard, Université Paris 8; Christopher Hutton, University of Hong Kong; William MacNeil, Southern Cross University; Antoine Rocipon, Université Paris 8 & IHTP; Raja Sakrani, University of Bonn; Laurent de Sutter, University of Brussels; Marco Wan, University of Hong Kong

Need for More Sensitivity When Reporting on Domestic Violence in Hong Kong (Puja Kapai)

"Hong Kong's media must show more sensitivity when reporting on domestic violence"

Puja Kapai, Yenni Kwok, Linda To, Shirley Kong
Hong Kong Free Press
14 September 2017

A murder-suicide case shocked Hong Kong last week. Last Monday, a man allegedly killed his wife at a luxury apartment building in Yau Ma Tei before taking his own life. The police said the husband had moved out of their home on Friday after the wife discovered he had been cheating and demanded a divorce.

     Domestic violence in the city remains one of Hong Kong’s most neglected problems and unfortunately, also its most hidden. Yet, the media coverage of the murder-suicide case highlights a critical lack of understanding about the issue. As the horrific news about the young couple, who were both civil servants, gripped the city, reports speculated that the act of violence was the inevitable consequence of the wife earning a higher salary than the husband.

     The front-page story of Headline Daily on Tuesday, 5 September 2017, was titled: “Wife’s salary is more than double her husband’s. Wife in a higher position is a recipe for a tragedy.” News website HK01.com also linked the murder-suicide to the wife’s high salary. In a story published on 4 September, it quoted Szeto Hon-ming, a senior social worker, who said a wife shouldn’t “injure the pride” of the husband. He also advised wives who earned more than their husband not to use “terms that may undermine men’s self-esteem.”

     Media ethics exact a higher standard of reporting than what is sadly on display from the headlines and stories which have emerged over the course of the week. The reports have irresponsibly showcased and perpetuated a sexist narrative which blames the victim.

     Although the homicide rate in Hong Kong remains comparatively low given the size of our population, the number of domestic murder-suicides among homicides features prominently. This is no cause for comfort but rather, calls for targeted approaches for prevention by frontline personnel who need to understand that such incidents are often the breaking point in a relationship likely to have been peppered by escalating violence earlier on. The majority of the victims are women, and the perpetrators are usually their partners or former partners. Hong Kong — along with Japan — has the highest rate of female homicide victims in the world: women comprise 52.9 per cent of the total homicide victims in these two jurisdictions, followed by South Korea at 52.5 per cent... Click here to read the full article.

New Book: Media Law and Policy in the Internet Age (Hart)

Media Law and Policy in the Internet Age
Editors: Doreen Weisenhaus and Simon NM Young
Hart Publishing
2017, 280 pp.

Description: The Internet brings opportunity and peril for media freedom and freedom of expression. It enables new forms of publication and extends the reach of traditional publishers, but its power increases the potential damage of harmful speech and invites state regulation and censorship as well as manipulation by private and commercial interests.
     In jurisdictions around the world, courts, lawmakers and regulators grapple with these contradictions and challenges in different
ways with different goals in mind. The media law reforms they are adopting or considering contain crucial lessons for those forming their own responses or who seek to understand how technology is driving such rapid change in how information and opinion are distributed or restricted.
     In this book, many of the world’s leading authorities examine the emerging landscape of reform in nations with variable political and legal contexts. They analyse developments particularly through the prisms of defamation and media regulation, but also explore the impact of technology on privacy law and national security.
     Whether as jurists, lawmakers, legal practitioners or scholars, they are at the front lines of a story of epic change in how and why the Internet is changing the nature and raising the stakes of 21st century communication and expression. 

Anne Cheung on Press Freedom and the HKU Injunction Case (M&ALR)

"Interlocutory injunction, freedom of the press and public interest: The University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd"

Anne SY Cheung

Media & Arts Law Review

2016, Vol. 21, Issue 2, pp 183-198

Abstract: English common law has long been skeptical, or even hostile, to any forms of prior restraint on publication and expression. The root can be traced back to William Blackstone’s writing in the eighteenth century, and the belief is premised on the necessity to search for truth and to guard against the abuse of power. This closely guarded assumption has resulted in the courts often imposing a higher threshold and exercising careful scrutiny when granting any prior restraint affecting freedom of expression. Yet this poses a vexing problem when handling applications for interlocutory injunctions. On the one hand, freedom of expression arguably warrants stricter scrutiny by the court in any form of prior restraint. On the other hand, an assessment of the merits of a case is deliberately kept to a minimum when granting an interlocutory injunction because of the urgency of the matter in dispute, leaving full consideration for trial. Thus, an interlocutory injunction which has an impact on freedom of expression exemplifies the inherent tension in prior restraint applications. While the United Kingdom has raised the threshold for such cases under section 12(3) of the Human Rights Act 1998 (UK), Hong Kong is left to figure out its own legal standard. 

     This difficult task is well illustrated in the litigation of The University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd and the Person or Persons Unknown (‘HKU case’), which was an application for an interlocutory injunction to stop further leaking of confidential information based on the doctrine of breach of confidence. The case started out with the refusal of appointment of a well-known legal scholar to be the pro-vice-chancellor of the University of Hong Kong (‘HKU’) by the University Council (‘Council’) in 2015. Reasons were not given by the Council but there was widespread speculation that the refusal of appointment was politically motivated. Following a press conference given by a student member of the Council recounting what certain members had said in a closed-door meeting, secret tapes and audio recordings of the said Council meeting were subsequently given by a secret source to the first defendant. The latter then broadcast certain segments of the meeting conversation, making the audio recording accessible on its Commercial Radio station website and Facebook page. HKU quickly applied for an ex parte interim injunction based on breach of confidence to stop the broadcasting of the audio recording of the Council meeting by the first defendant, but was challenged only with further leaking of the audio recording by the second defendant(s) (the ‘Unknown Person(s)’) in overseas websites based in Taiwan and Sweden. By the time the interlocutory injunction was before Lam J, much of what was said in the relevant Council meeting was already in the public domain. 

     Facing this application for an interlocutory injunction, Lam J did not consider it necessary to apply for a higher threshold despite the fact that freedom of expression is a constitutional right under article 16 of the Hong Kong Bill of Rights. Rather, he has decided to ‘suitably adjust and apply’ the traditional common law approach in American Cyanamid v Ethicon Ltd. At the end of the day, he granted the interlocutory injunction and ordered an expedited trial. 

     Although Lam J’s decision in applying American Cyanamid in a flexible manner is sufficiently plausible from a strict legal perspective, I argue that his decision and reasoning are far from persuasive in the given context. His narrow interpretation on what constitutes public interest, which is an essential element to be considered in the tests of breach of confidence and balance of convenience in American Cyanamid, has titled the balance unduly in favour of the plaintiff. In addition, the judgment has not only revealed the unsatisfactory state of unstructured balancing of private interest and fundamental right in interlocutory applications, it has also highlighted the challenge that internet disclosure and leaking has posed to the practical effectiveness of an (interlocutory) injunction order. 

     The discussion starts with a summary of the refusal of the appointment saga, followed by an analysis of the decision with a focus on the balance between the public interest in upholding confidentiality and the public interest in disclosure as played out in the analysis on the legal doctrine of breach of confidence and the application of the principle of balance of convenience.  Click here to download the article.

Farzana Aslam Interviewed on Apple's Removal of New York Times App in China (NY Times)

"Apple Removes New York Times Apps From its Store in China"
Katie Benner and Sui-Lee Wee
The New York Times
4 January 2017

Apple, complying with what it said was a request from Chinese authorities, removed news apps created by The New York Times from its app store in China late last month.

     The move limits access to one of the few remaining channels for readers in mainland China to read The Times without resorting to special software. The government began blocking The Times’s websites in 2012, after a series of articles on the wealth amassed by the family of Wen Jiabao, who was then prime minister, but it had struggled in recent months to prevent readers from using the Chinese-language app.

     Apple removed both the English-language and Chinese-language apps from the app store in China on Dec. 23. Apps from other international publications, including The Financial Times and The Wall Street Journal, were still available in the app store.

     “For some time now the New York Times app has not been permitted to display content to most users in China and we have been informed that the app is in violation of local regulations,” Fred Sainz, an Apple spokesman, said of the Times apps. “As a result, the app must be taken down off the China App Store. When this situation changes, the App Store will once again offer the New York Times app for download in China.”

...

     Farzana Aslam, associate director of the Center for Comparative and Public Law at the University of Hong Kong, noted that in matters involving customer privacy, Apple requires governments to submit subpoenas, search warrants or other legal documents. 

     “Maybe in the end they have to do it, but I think there’s something to be said about standing up for what you believe in and purporting to put principle before profit in a country like China, to show that actually there is this tension there,” Ms. Aslam said. “It’s not as simple as, ‘Because we operate in your jurisdiction, we’ll do anything you ask of us.’”... Click here to read the full article.

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.

New Issues: SSRN Legal Studies Research Paper Series (HKU)

Vol. 6, No. 4: 26 Aug 2016

Table of Contents

1. A Public Law Conception of Integrity in the Criminal Process
Simon N. M. Young, The University of Hong Kong - Faculty of Law

2. A Red Flag for Hong Kong Credit Ratings
Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law

3. Re-Examining Criminal Process Through the Lens of Integrity
Paul Roberts, University of Nottingham, University of New South Wales (UNSW) - Faculty of Law, China University of Political Science and Law
Jill Hunter, University of New South Wales (UNSW)
Simon N. M. Young, The University of Hong Kong - Faculty of Law
David Dixon, University of New South Wales (UNSW) - Faculty of Law

4. Voice and Exit as Accountability Mechanisms: Can Foot-Voting Be Made Safe for the Chinese Communist Party?
Roderick M. Hills, Jr., New York University School of Law
Shitong Qiao, University of Hong Kong Faculty of Law

Vol. 6, No. 3: 26 July 2016

Table of Contents

1. Bringing Politics Back In: Access to Justice and Labor Dispute Resolution in China
Fu Hualing, The University of Hong Kong - Faculty of Law

2. Interlocutory Injunction, Freedom of the Press and Public Interest: The University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd and ORS.
Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law

Vol. 6, No. 2: 16 June 2016

Table of Contents

1. Live Migration in Emerging Cloud Paradigms
Massimo Ficco, Second University of Naples
Christian Esposito, University of Salerno
Henry Chang, The University of Hong Kong - Law and Technology Centre
Kim-Kwang Raymond Choo, The University of Texas at San Antonio

2. The Chinese Approach to Transfer Pricing: Problems Faced and Paths to Improvement
Jingyi Wang, The University of Hong Kong

3. Disproportionality in Asset Recovery: Recent Cases in the United Kingdom and Hong Kong
Simon N. M. Young, The University of Hong Kong - Faculty of Law

Marcelo Thompson on the Normative Responsibility of Internet Intermediaries (Vanderbilt JETL)

"Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries"

Marcelo Thompson
Vanderbilt Journal of Entertainment & Technology Law
Summer 2016, Vol. 18, Issue 4, pp 783-849

Abstract: This Article puts forward a normative approach to the responsibility of Internet intermediaries for third-party content they host. It argues that, in thinking about intermediary liability, the focus should be on intermediaries’ responsibility towards the reasoning processes in reaching decisions, rather than on the outcomes of intermediaries’ decisions. What is necessary is a framework that, while attaching responsibilities to such decisions, creates a cushioning system for their making, mitigating the hardship of honest mistakes. Within this framework, intermediaries must be seen not as mere keepers of gates, but as designers of artifacts whose use plans settle normative questions and play a vital role in the construction of our normative reality. Accordingly, an interpretive commitment must be required toward the integrity of such a reality. Every time intermediaries make a decision, as they always will and should—in all of this hidden jurisprudence—the integrity of our normative order and the values it reflects are at stake. This commitment to integrity must be seen as part of a broader concern with justice (both corrective and normative) in the internal life of the information environment. For the same reason, however, we should expect responsible efforts, not perfection, from intermediaries. Like journalists who are entitled to make mistakes, if only they seek responsibly to avoid the same (which is the idea of responsible communication in defamation), so it should be with Internet intermediaries. Understanding the above enables us to move away from outcomes-based approaches towards a more granular and fair system of intermediary liability.  Click here to download the article.

HKU LLM (Human Rights) Student, Phila Siu, Wins Journalism Award

"Post reporter Phila Siu gets Hong Kong award coverage of abused helper's family"

Jasmine Siu
South China Morning Post
12 December 2015

A South China Morning Post reporter has received the Chinese University Journalism Award for his coverage of Erwiana Sulistyaningsih's family and how her plight has affected Indonesia's policy of exporting domestic workers.

     News reporter Phila Siu [LLM(Human Rights) candidate] last night received a certificate of merit in the biannual award's feature or commentary group for newspapers and magazines.

     His award-winning entry features a collection of interviews with Indonesian government advisers and local labour groups, with the centrepiece being a profile feature on Erwiana's father, Rohmad Saputro.

     Erwiana became a global media sensation in January last year, when a fellow Indonesian who chanced upon her at Hong Kong's airport noticed her bruised appearance and reported it to police. Her then employer, Law Wan-tung, 44, was subsequently arrested, while Erwiana spent nearly a month in an Indonesian hospital.... Click here to read the full article.

Clement Chen on Freedom of Information in China

"Freedom of Information in China?  The Paradox of Access to Information in a Closed Regime"
Clement Chen

in John Mair & Tom Felle (eds), FOI Ten Years On: Freedom Fighting or Lazy Journalism (Abramis Academic Publishing 2015)

Abstract: As a result of the Regulations on Open Government Information (ROGI), Chinese journalists as well as other citizens enjoy, for the first time in history, a statutory right to access government information. While the ROGI has led to increased disclosure of non-sensitive information, it has yet to secure disclosure of information with democratic implications, i.e. enhancing government accountability and promoting civic engagement, as shown by data concerning request handling and judicial review. Under the law, journalists do not have a more privileged right of access to information than any other citizen; in practice, their rights are actually far less, as frequently a ‘needs test’ is applied by government agencies (news gathering has not been recognised as a valid need) in addition to other exemptions, in an effort to stymie information release, especially where such requests relate to accountability of public money; potential maladministration; or corruption. Journalists and other non-personal requests have an extremely limited right of appeal, as courts have been slow to overturn non-disclosure decisions, or even accept cases. Because of this combination of a weak legislative framework and a largely impotent judicial protection, watchdogs such as activists, NGOs and journalists find it increasingly difficult to use the ROGI to monitor and check on the workings of government, and its officials.