FCC panelists differ on how Hong Kong’s Article 23 will impact the city’s journalists

Following up on his vow to pass Article 23 of the Basic Law, Chief Executive John Lee and the HKSAR government announced a four-week public consultation period for the bill in late January. Article 23, originally shelved in 2003 after mass protests against it, enables the city to enact laws prohibiting seven offenses – including treason, espionage, and theft of state secrets.

The government claims that Article 23 will “plug the gaps” that aren’t covered by the National Security Law that Beijing imposed on the city in June 2020. Various sectors have urged the government to clarify terms like “national security” and “state secrets”, as well as to lengthen the public consultation period, which ends on February 28.

On February 19, the FCC held a Club Lunch moderated by President Lee Williamson in which a panel of government, journalism, and legal experts shared their thoughts on the bill.

“I think the proposals are actually less broad or ‘sweeping’ than a lot of the similar proposals introduced by other common law jurisdictions,” said Regina Ip Lau Suk-yee, Convenor of the Executive Council.

Ip was the Secretary for Security in 2003 when Article 23 was originally proposed. She stepped down after mass protests caused the HKSAR government to shelve the bill, but eventually returned to the government in 2008 when she was elected as a member of the Legislative Council.

Sitting alongside Ip was Ronson Chan, Chairperson of the Hong Kong Journalists Association (HKJA). When asked about Article 23’s impact on journalism, Chan referenced a recent HKJA survey in which 75% of respondents indicated that the law would negatively affect their work.

“It is very easy for journalists to feel [in danger] in their work and I think that it may affect the atmosphere for the freedom of press. So that’s why we are highly concerned about the legislation,” Chan said.

Chan also emphasised the need for the government to clarify what are state secrets, otherwise journalists may inadvertently violate Article 23 while waiting for the government’s official response for a story.

“It still has to be a secret,” said Professor Simon Young, the Ian Davies Professor of Ethics at The University of Hong Kong’s Faculty of Law, who also sat on the panel. “I would think it is something you would reasonably expect to be confidential.”

Young further elaborated that the acquisition, possession, and disclosure of a state secret all need to meet the same mens rea – knowing or having reasonable grounds to believe it is a state secret and intending to endanger national security by sharing it.

“It’s not just any kind of knowledge or disclosure. You have to show that that person really intended to endanger national security. If they’re doing legitimate journalism business, then it’s unlikely that they would have that intention,” Young concluded.

Ip, on the other hand, didn’t believe Article 23 would harm the work of Hong Kong’s journalists.

“I don’t think the media really needs to worry,” she said early on in the discussion, but later emphasized that there is “no absolute freedom of speech” when asked if people in Hong Kong should worry about Article 23 criminalizing free speech.

Chan agreed with Ip that there is no absolute freedom of speech, but that efforts should still be made in order to clarify what free speech means in Hong Kong.

“The red line is floating and moving,” he said. “I think we need to distinguish the differences [of free speech] from Hong Kong and the outside world.”

Watch the full talk on our YouTube channel below: