HRN Protests the National Security Law’s Continuing Threat to Journalists in Hong Kong

January 30, 2024

Hong Kong, China / Hong Kong, Civil and Political Rights, Hong Kong, Human Rights Defenders / independence of judiciary

HRN has released a statement protesting continuing threats against independent journalists and media workers in Hong Kong under the National Security Law and other abusive laws which criminalize their work. The statement contributes to the discussion for the recent High Commissioner’s expert seminar on legal and economic threats to the safety of journalists, a report of which is being released at the upcoming 55th Human Rights Council session.

You can read the full text of the statement below.

Human Rights Now Protests the NSL’s Continuing Threat to Independent Journalists and Media in Hong Kong

Three and a half years after the enactment of Hong Kong’s National Security Law (NSL) in June 2020, its enforcement and other institutional changes have dramatically shifted Hong Kong towards authoritarianism. Over 250 activists and critics of the government have been arrested under the NSL, over 150 of them prosecuted,[1] and of the trials that have concluded, all defendants have been found guilty.[2]

Fear of prosecution, intimidation, and harassment by authorities has led to the total collapse of independent civil society in Hong Kong. Hundreds of civil society organizations and countless activists have either ceased operations or left Hong Kong, including political groups, NGOs, unions, human rights defenders, lawyers, journalists, and media workers.[3]

This statement focuses on the continuing threats faced by journalists and independent media advocating human rights or pro-democracy positions from the NSL, sedition law, and other authoritarian practices, with the two recent cases of journalist Minnie Chan’s disappearance and media CEO Jimmy Lai’s sedition trial particularly highlighting these threats. Human Rights Now (HRN) calls on all persons arbitrarily arrested or convicted under the NSL and other laws for their peaceful assembly, association, or speech to be released and for these laws or their abusive elements to be repealed.

The Context of Attacks of Freedom of Speech in Hong Kong

The overly broad, vague, and undefined language of the NSL and newly revived sedition law, as well as their abusive application under hand-picked judges for national security cases, have led to the unjustified criminalization of speech protected under Hong Kong’s Basic Law Art. 39, Bill of Rights Ordinance Art. 16, and ICCPR Art. 19.[4] The disdain for freedom of expression expressed by national security judges is on display in numerous cases including Ma Chun-Man (criminalizing slogan chanting), Lai Man-ling (criminalizing a children’s book published by the General Union of Speech Therapists), and other cases criminalizing leaflets, flags, online posts, art, and music.

In particular, national security judges have routinely and explicitly rejected the ICCPR’s necessity standard for legitimate restrictions on harmful expression such as for national security, i.e., that the restriction must be necessary to prevent actual violence.[5] For these and other reasons, the Human Rights Committee’s Concluding Opinions on Hong Kong heavily criticized the sedition law for criminalizing legitimate expression, calling for the repeal of its relevant provisions,[6] and the Special Rapporteur on Freedom of Expression has most recently called for the release of Jimmy Lai following his arrest for his legitimate media work for similar reasons.[7]

Threats Against Journalists and Media Freedom in Hong Kong under the NSL

The post-NSL environment has been a particular threat to independent journalists through charges of sedition (which since 2020 criminalizes pro-democracy advocacy or even peaceful discussion of Hong Kong’s political status) and collusion with foreign forces (which under the NSL criminalizes contacts with foreign and UN officials and op/eds targeting foreign audiences) as well as judicial harassment through arbitrary administrative charges.

Since 2020, at least nine independent news media outlets, including Apple Daily, Stand News, Citizen News, FactWire, Transit Jam, and Citizens’ Radio have ceased operations.[8] Some media outlets moved their operations overseas. Even for media outlets remaining operational, the Hong Kong Foreign Correspondents’ Club has reported that nearly 70 percent of Hong Kong journalists admitted self-censorship and that media outlets are often barred from reporting on official events.[9] As a result, the Press Freedom Index ranked Hong Kong 140th out of 180 regions in press freedom in May 2023.[10] The recent cases of Minnie Chan, Jimmy Lai, and others demonstrate the continuing threat posed to journalists in Hong Kong.

The Disappearance of Minnie Chan

In November 2023, Minnie Chan, a Hong Kong journalist for the South China Morning Post (SCMP), was reported as disappeared after a work trip to attend the Xiangshan Forum in China, and she has remained missing for more than two months up to time of this submission.[11] When asked for comment, SCMP, which is owned by the Chinese company Alibaba Holding, reported on 1 December 2023 that Chan is on personal leave and requested privacy.[12] However, numerous independent media and press freedom groups, such as Reporters Without Borders and the Committee to Protect Journalists, have expressed great concern about Chan’s disappearance,[13] particularly in light of the common practice of forced disappearances for activists and critics in China in general and female reporters, including Cheng Lei and Haze Fan in 2020, in particular.[14]

Trailing, Surveillance, and Harassment of Journalists

Other Hong Kong journalists arrested or harassed include Ronson Chan, the chairman of the Hong Kong Journalists Association (HKJA), arrested on 7 September 2022 for obstructing police and disorderly conduct,[15] and a court reporter for Hong Kong Free Press, who reported on 22 March 2023 being trailed by two men for approximately an hour during her commute to work.[16] In the aftermath of this incident’s coverage, the Hong Kong Journalists Association disclosed in a statement that it had been notified of similar experiences by other journalists in recent weeks. These cases highlight the continuing practice of journalists, especially from independent online media platforms, being subjected to trailing, surveillance, and harassment.[17]

Jimmy Lai’s Trial as a Demonstration of Attacks on Press Freedom in Hong Kong

Jimmy Lai, the founder and CEO of one of Hong Kong’s most prominent independent newspapers and media company Apple Daily, had already been a target of judicial harassment by arbitrary criminal charges for unauthorized assembly for participating in two demonstrations (for which he was convicted in 2019 and 2021)[18] and fraud related to his company’s land lease (for which he was convicted in 2022),[19] before his charges under the NSL and sedition law went to trial in January 2024. On 17 May 2022, Lai, along with his companies, was charged for conspiring to publish “seditious” articles in his newspaper, such as those, e.g., labeling the Chinese government as “totalitarian” and four counts of foreign collusion for advocacy calling for sanctions against Hong Kong by other states, with a potential sentence of life in prison.[20] Like all post-NSL national security cases, Lai was denied a jury trial otherwise typical in Hong Kong.

While this case is still in trial, in addition to the cases mentioned above which have already set a precedent for the explicit rejection of freedom of expression protection in national security cases, the district court’s recent decision on a potential time bar already indicates that Lai’s case is continuing the trend of arbitrarily criminalizing the normal work of journalists and media workers.

Implications of the time bar ruling

To briefly introduce the “time bar” claim, the relevant law requires that charges be brought within six months of the alleged criminal offense, and Lai’s lawyers argued that prosecutors brought charges more than six months after the alleged initial conspiracy agreement, among another argument. In rejecting the bar on 22 December 2023, the deciding judges made a very expansive ruling that in effect renders the normal work of media outlets (such as selling newspapers) a “continuing” seditious conspiracy when it includes distribution of articles arbitrarily deemed “seditious”.[21] This is a dangerous ruling in the context of arbitrary sedition determinations that allows the criminalization of independent media even for normal journalistic activities, which will only serve to further chill any prospects of independent media returning to Hong Kong. Note that it is the unjustified determination of peaceful articles as “seditious” that is at the root of the problem, allowing the court to further criminalize any normal media activities linked to it.

Recommendations

HRN calls on relevant Hong Kong and Chinese authorities to:

Repeal the NSL, sedition law, and similar laws or their elements criminalizing peaceful assembly, association, and speech, including normal journalistic activities.
Release of all persons arbitrarily detained, arrested, or convicted under these laws for their peaceful activities, including journalists and media workers such as Ronson Chan, Minnie Chan, and Jimmy Lai and his fellow defendants, and end the harassment of journalists and media workers.

HRN further requests states to consider sanctions and other appropriate measures to prompt Hong Kong and Chinese authorities to make the necessary legal reforms, including the above, for Hong Kong law and practice to be compliant with its international human rights obligations.

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[1] https://www.gov.uk/government/publications/six-monthly-report-on-hong-kong-january-to-june-2023/six-monthly-report-on-hong-kong-1-january-to-30-june-2023

[2] https://www.thestandard.com.hk/breaking-news/section/4/202536/Only-71-people-convicted-under-national-security-law-in-three-years,-says-Chris-Tang

[3] https://hrn.or.jp/eng/news/2021/08/23/hrc48-statement-hong-kong/

[4] https://news.un.org/en/story/2020/07/1067682

[5] See for example, HKSAR v LAI Man-ling, et al, [2022] HKDC 981, Paras. 100 ff.

[6] https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCHN-HKG%2fCO%2f4&Lang=en , pp. 4 ff.

[7] https://www.ohchr.org/en/press-releases/2024/01/hong-kong-sar-un-experts-urge-authorities-drop-all-charges-against-jimmy-lai

[8] https://hongkongfp.com/2023/05/09/transport-news-site-transit-jam-becomes-latest-hong-kong-outlet-to-close/; https://hongkongfp.com/2023/06/26/hong-kong-pro-democracy-pirate-radio-to-stop-broadcasting-after-founder-says-station-bank-account-locked/

[9] https://hongkongfp.com/2023/07/06/almost-70-of-journalists-have-self-censored-83-say-conditions-have-worsened-hong-kong-press-club-survey/

[10] https://hongkongfp.com/2023/05/02/govt-watchdog-to-probe-hkfps-complaint-over-handling-of-media-bans-at-press-event/

[11] https://cpj.org/2023/12/hong-kong-journalist-minnie-chan-missing-after-reporting-trip-to-beijing/; https://www.theguardian.com/world/2023/dec/01/minnie-chan-south-china-morning-post-journalist-missing-xiangshan-forum; https://hongkongfp.com/2023/12/01/south-china-morning-post-says-missing-reporter-is-safe-after-press-group-raises-alarm-threatens-legal-action/; https://safeguarddefenders.com/en/blog/why-does-china-keep-disappearing-female-reporters