‘Glory to Hong Kong’ ban sets a chilling precedent

In May 2024, the Hong Kong Court of Appeal ruled in favour of the government by reversing the lower court’s rejection of a civil injunction that would, in effect, heavily restrict the dissemination of a famous Hong Kong protest song, Glory to Hong Kong.

The song was recorded by local artists in August 2019, when the Anti-Extradition Bill Movement was flourishing. Since then, chanting the protest anthem in public and private sites, including schools, shopping malls, housing estates, and public rallies, has been an ordinary ritualistic collective action in an extraordinary time in Hong Kong.

Even after the protest ended due to the Covid-19 pandemic and Beijing’s imposition of the national security law (NSL) in mid-2020, Glory to Hong Kong remains popular. It is played on social media platforms and music streaming services and in emerging Hong Kong diaspora communities, which continue to organise protest events.

Glory to Hong Kong is a threat to Chinese and Hong Kong authorities not simply because the song has been influential in building solidarity and shared identity among Hong Kongers but because, from the authorities’ viewpoint, it has damaged “nationalistic dignity” and “nationalistic sentiments” in global events. On some occasions, international sporting events mistakenly played Glory to Hong Kong instead of the national anthem of the PRC when athletes from the Hong Kong delegation were awarded after games.

The Hong Kong Government, along with patriotic lawmakers, attempted to stop the song from circulating worldwide. All proposed solutions failed, except embracing free speech with the government’s tolerance. In the end, in 2023, the government decided to file a civil injunction that would ban the protest song from public access and dissemination.

As I wrote last year, using a civil injunction rather than invoking the NSL makes the public and business companies, both internet service providers and online service providers, more vulnerable to the government’s autocratic agenda of prohibiting free speech and information access detrimental to the ruling regime. Corporations are more willing to comply with the civil court, as many of them still believe the myth that the NSL would only affect the performance of the local criminal court. Using the injunction order to arrest and charge individuals was also more convenient, making the protest song available to the public with judicial contempt, which seems less controversial than the NSL offences.

Surprisingly, the Court of First Instance rejected the government’s request, citing that existing criminal laws are available, whereas using a civil injunction on these matters could cause a “chilling effect”. The government was unsatisfied with the ruling and thus went on an appeal last year.

The ruling given by the Court of Appeal a month ago reversed the decision and imposed the injunction expected by the Hong Kong government. The judgement, written by three national security judges designated by the chief executive, includes many misleading parallels and arguments that do not conform to international human rights norms and remedies.

Of paramount importance in this judgement is its emphasis on “judicial deference to executive evaluative assessment on national security” (paragraphs 52 to 62). The court argues that this principle is well established in common law, as the executive branch of the government has the responsibility, alongside expertise and resources, of assessing and addressing national security risks, while the court has not.

They further suggest a two-step approach to how such deference works: “when national security is at stake, the executive’s decision process to address the risks ordinarily takes two steps: (1) making an assessment based on the relevant national security considerations; and (2) devising measures in response”. The court should, hence, defer to the executive in both steps.

The judgement cited English case law on several occasions, justifying judicial deference to the executive, to show that there should be a consistency between Hong Kong’s common law and the UK’s. Is it a fair parallel or genuine consistency of the jurisprudence?

The NSL entitles the chief executive to intervene in court cases related to national security, a broadly defined term, by issuing a court-binding certificate to determine whether an act is related to or threatens national security, or whether evidence constitutes a state secret. In short, the court must follow the chief executive’s certificate on national security matters once the facts of the executive judgement are proved. The certificate mechanism does not give discretionary authority to the court under the NSL.

It appears that the court would be deferential to the executive government on national security matters even if the chief executive had not issued a binding certificate in this case. The court took a passive position:

“The court is also acutely conscious that the Government alone can evaluate and decide what counter-measures are needed and what steps will suffice. The court is neither equipped to make such decisions nor charged with that onerous responsibility. Hence, the court must give appropriate deference to the executive as primary decision maker.” (paragraph 62)

Such a standpoint is not uncommon in courts across the world. Still, a recent UN study found that judicial deference to the executive on national security matters could constitute abuses of power and erosion of human rights protections.

In June 2023, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism published a report titled “Global Study on the Impact of Counter-terrorism on Civil Society and Civic Space”. It documented how civil society actors suffered from human rights abuses driven by national counter-terrorism measures, which include national security and counter-terrorism laws. The study found that national security legislation often focused on protecting executive power and restricting democratic or judicial oversight of enhanced executive power.

Also, in many cases, judiciaries “tend to be highly deferential to the exercise of counter-terrorism and security powers, and judges may fear retribution if they overrule security prerogatives exercised by the state” (pp.42-43).

This could be why the judgement almost fully recognises the government’s description of the protest song as a “weapon” that could provoke violence. Such a position is in contrast with international human rights experts, who repeatedly argue that any speech or expression not inciting imminent violence or threat of violence must not be restricted.

In Hong Kong’s case, judges trying to resolve national security matters are all handpicked by the chief executive rather than the judiciary. This system has deeply jeopardised the independence of the judiciary in Hong Kong, especially when we have no information about how the chief executive, who is not democratically elected by the population but selected by a pool of “patriots” endorsed by Beijing, designates different judges. This is another reason why drawing parallels from English case law in the judgement is misleading – Hong Kong’s legal system has institutional structures incompatible with those operating in liberal democracies.

Under the judgement, anyone who broadcasts, performs, prints, publishes, sells, offers, distributes, disseminates, displays or reproduces Glory to Hong Kong in public with the intent of inciting others to commit secession of seditious intention, misrepresenting it as the national anthem, or of insulting national security, could be regarded as judicial contempt by breaking the injunction. That said, the same injunction also explicitly allows lawful acts in connection with the song, such as academic activity and news activity, as long as they do not involve any acts with the criminal intents above.

Nevertheless, the chilling effect is so strong that foreign companies have begun to block the song online. YouTube imposed geo-blocking on 32 videos of Glory to Hong Kong, leaving residents in Hong Kong unable to access clips in the territory. Later, EmuBands, a Scottish company that distributed the song, announced that the song would be taken down from all platforms due to the injunction.

On one hand, the injunction does not have extraterritorial jurisdiction. The judgement clarifies that the injunction only applies to “everyone in Hong Kong” (paragraph 78). On the other hand, a blanket block or removal of the song by YouTube and EmuBands cannot help enforce the injunction since the latter warrants the lawful use of the song, such as academic or journalistic activities. Indeed, the injunction appears to avoid providing an exhaustive list of lawful activities.

Corporate behaviours do not adequately appreciate the court ruling but sponsor the Hong Kong government’s agenda of restricting free speech and information access in the digital space. Their decisions unavoidably encourage human rights violations and tell the Hong Kong Government that they succeeded in intelligently instrumentalising the court injunction for political ends.

The Pandora’s box is opened: the Government can apply for a court injunction to prohibit anti-government materials in public if they endanger national security, while the court could continue to exercise deference to the government’s judgement on affairs they label as “national security matters”. Tech companies abroad could act more than 100 per cent in compliance with the Hong Kong court order regardless of how this may damage internet freedom. It is unlikely that anyone in the city would be eager and eligible to file a final appeal against the court decision.

However, this injunction case and its impacts can still offer two critical lessons. Firstly, scholarly research often sees laws and courts, which are veiled as independent, impartial and professional, as highly weaponised by authoritarian regimes to suppress dissent and silence the public. It is time to rank Hong Kong as a new player in authoritarianism.

Secondly, it is essential to widen the scope of perpetrators of human rights violations from state actors to private actors, who play a pivotal role in sponsoring repression domestically and abroad. Today, business corporations, ranging from industries, financial institutions and tech giants, are asked to improve their policies and practices to adhere to the UN Guiding Principles on Business and Human Rights. They must avoid aiding government abuses of power that lead to human rights exploitation. Both political authorities and corporations operating in Hong Kong are responsible for defending human rights, the rule of law, and an open digital space rather than exploiting them for their own benefit.

(Published in the Hongkonger, 5 June 2024)