Freedom of the press: The First Ten Years in the HKSAR

Johannes Chan

Classic View of Freedom of Press

-Portrays the media as the watchdog of the government-Sometimes regarded as the 4th branch of government-HK probably has highest number of daily newspapers in the world with a wide diversity of views and political stances-No specific law targeting the media

Scandalizing the Court

-Law on Contempt of Court has to balance two conflicting interests:1) Freedom of expression and of the press2) Right of the litigants to a fair trial*Contempt of the court is intended to protect the due administration of justiceie. Protect the administration of justice from abuse or corruption; maintain respect for the

court and its officers b/c no respect = the law itself wont be legitamite -Contempt by scandalising the court punishes the conduct that is directed at the judicial process

-There is a fine line between criticizing the court, which is part the freedom of expression, and the undue interference with the due administration of justice

eg. Oriental Daily News/Press Group attacking the Obscene Articles Tribunal, individual judges and the entire judiciary

-’educational’ paparazzi of appeal judge-Court held that there was a real risk of interference-Appeal dismissed and leave to Court of Final Appeal was refused

In order to establish Contempt by Scandalising the Court, the prosecution must prove that:

1) The statement or conduct was calculated to interfere with the administration of justice in the widest sense2) It involved a real risk that the due administration of justice would be interfered with3) The respondents intended to do those acts which were said to constitute the contempt

The Media War

-Defamation provides a balance between freedom of speech and protection of the reputation of others

-Sometimes used by some media to stifle their criticsie. Eastern Express Publisher v Mo Man Ching Claudia

-E, the plaintiff, sued Claudia, the defendant, for defamation-Court found defendant not-guilty, CA reversed the judgement, CFA allowed appeal and

held that the defendant made a fair comment

-CFA finds that the defence of fair comment could only be defeated if the plaintiff could prove that the defendant did not honestly hold the comment

*Defence of fair comment and qualified privilege is not the same-D of Fair comment rested on the basis of freedom of expression in social and

political campaigns, limited to objective safeguards-D of Qualified Privilege was based on the performance of a duty or protection of

interestMedia intrusion to Privacy

-In context of privacy, media seems more like an intruder than watchdog ie. Gillian Chung change room picture incident (not the EDC pics..)-Debate on the Regulation of the Media--> led to the establishment of the Press Council in August, 1999

-Shortcomings: the three largest newspapers did not join, no jurisdiction for non-members--> Proposed Statutory Press Council

-Recieved strong oppostion from HK Journalists Assoc and Photographers Assoc. for fear of restriction of press freedoms

Free Speech and Privacy

-Campbell v MGN Ltd.-Balance of Convenience Test:

-Whether privacy should give way because there is a higher public interest in disclosing personal information and balance the gain in public interest against the harm that could be done to the victim-Privacy is not a recognized cause of action under the common law; can apply the principle of breach of confidence as in the case of Campbell v MGN-Gillian Chung case was the first time the principle in Campbell was used, but the case did not proceed to trial

Obscenity and Indecency

-Obscenity and indecency provides justification for restricting freedoms of expression in the form of Control of Obscene and Indecent Articles Ordinance

--> led to the formation of the Obscene Articles Tribunal, provides guidelines for determining the classification of articles, may be used from time to time as prima facie (initial) evidence for preparing criminal charges

-This dual function as tribunal/criminal court has received much criticism-Pre-publication classification may be useful in warning publishers about possible

problematic publications, but post-publication classification does not seem to be justified because the publisher did not receive the warning, may only be useful in warning future publications

ie. Pao Wei Louis v Obscene Articles Tribunal-Godfrey J warned the possibility of abuse where a post-publication classification

was used for the purpose of influencing criminal proceedings-Johannes goes on to critique the composition of the tribunal and the conservative trend of the tribunal

Judicial Attitude towards Free Speech

-Mixed record in protecting free speechie. HKSAR v Leung Kwok Hung (more liberal) and HKSAR v Ng Kung Siu (more conservative)-Problems with CFA decision on Leung case1) No distinction between national flag and regional flag, regional flag received little discussion, ie. assumed importance without explicit justification (okay I’m not sure what he’s getting at..HK is part of China is it not?)2) Demonstration was peacefully conducted, but the court relied on public order/ordre public as reason to justify the charges. Public did not seem to care, so how was there public disorder.

-Ordre public was explained to be function of time, place and circumstances--> Symbolic value of national flag may change with the passage of time

3) Even if flag desecration led to public disorder, there was no explanation of why existing criminal law and police power would nto be adequate in dealing with such disorder4) The artificial distinction between mode of expression and content may lead to justification for increased censorship

Credibility Crisis and Self-Censorship

-Media suffer a low public credibility problem-Believed self-censorship with dealing with reports or comments on the PRC government

Conclusion

-Freedom of the press not so promising

-Thriving markets for prosperous and healthy competition among the media; but no deep committment to freedom of speech from the HKSAR government-Media have lowered its credibility by outrageous acts such as the trailing of judges, and invasion of privacy-Ultimate safeguard of freedom of press rests in the people, thus, if there is no trust in the media, who will defend the freedom of the press?-Media is not willing to address declining professional standards; may lead to more intervention by government-In the end, the media must remain healthy for the rest of the branches of government to remain healthy