The JMSC’s comments came in a position paper presented to the government on January 31.  The paper was sent as part of the government’s consultation on its review of the Control of Obscenity and Indecency Articles Ordinance (COIAO).

The paper describes how Hong Kong’s existing obscenity ordinance has troubled newsrooms since its enactment in 1987.  It says the ordinance continues to operate as an unnecessarily complicated regime, and is coupled with a problematic Obscene Articles Tribunal (OAT), which acts to enforce the law in a non-transparent, unaccountable and inconsistent manner.

Media complaints about the ordinance have been vindicated in court challenges over the years, including a case in 2008 involving Ming Pao newspaper and the Chinese University Student Press.  In that case, a court overturned an indecency classification for articles about a student sex survey.  In its ruling, the court criticized the tribunal for its lax and imprecise approach, declaring there was “no room for arbitrariness or slackness.”

The JMSC paper says neither these court rulings nor the current government consultation has closely examined the tribunal’s record of classification decisions and its adverse impact on press freedom. What is considered indecent by the OAT is often at odds with editors and publishers of newspapers and magazines publishing what they consider to be genuine news stories, commentaries or advertisements.

The chilling effect of the COIAO was vividly illustrated last year, in the case of an edition of the National Geographic that contained computer-generated images of a naked Neanderthal woman. The publisher of the Chinese version wrapped that edition of the magazine with a warning notice that it was not for sale to readers under 18 years old. 

The JMSC paper included the following recommendations:

• The current process of classification of obscene materials, particularly as it relates to the news media, should be scrapped or greatly revised.
• The government’s proposal to add a new classification category of indecency for individuals between 15 and 18 years of age should not be introduced, as it would impose an unfair burden on newspapers and magazines with general readerships.
• The tribunal’s decision database should be made available publicly and online.
• The government should refrain from further regulation of the Internet, which remains largely self-regulated in Hong Kong, because of the potential for censorship and the difficulty of enforcement in a medium without national borders.

“It is clear that the existing COIAO regime needs to be reformed,” said Dr. Yan Mei Ning, co-author of the JMSC paper and a contributor to Hong Kong Media Law. “But the outcome should not simply be the introduction of harsher measures and more severe penalties. Instead, there should be a scheme that is more transparent and accountable and provides greater consistency and foreseeability in its laws and regulations.”

The JMSC position paper was researched by Dr. Yan, an associate professor at the Cheung Kong School of Journalism and Communication at Shantou University and an honorary researcher for the JMSC, and was written by Dr. Yan and JMSC Associate Professor Doreen Weisenhaus, Director of the Media Law Project.

The JMSC paper can be downloaded as a PDF document here.

The Commonwealth Lawyers Association will be hosting its biennial conference in Hong Kong April 5-9, 2009.

In an article “Hong Kong Media Law Explained,” by Chris Dillon in the June/July 2008 issue of The Correspondent, a publication of the Foreign Correspondents Club Hong Kong, the book was lauded as “an accessible guide” that would be “particularly useful for correspondents who have recently arrived in Hong Kong or China and are trying to get their bearings.”  The review also said the book would be “of interest to non-journalists, whether they are citizens trying to understand the peculiarities of Hong Kong’s copyright laws, public figures confronting the paparazzi or just people who are curious about the mechanics of Hong Kong’s broadcast regulations.”

In the July 2008 issue of Communications_Lawyer of the American Bar Association, reviewer Kyu Ho Youm wrote that Hong Kong Media Law was “truly the first of its kind in the recent past” and was “a singularly important addition to the increasing body of country-specific media law books in Asia.” Youm described the book as ”valuable to working journalists and media lawyers” and cited the “scholarly merit” as “substantial.”

In the Spring 2008 issue of Journalism and Mass Communications Quarterly, Jane Kirtley described the book as “meticulous yet highly readable.” Kirtley concluded: “For scholars or legal practitioners interested in a concise summary of the law, Hong Kong Media Law is a useful resource. For journalists who plan to go to Beijing to cover the Olympics, it is a necessity.”

For a full list of other reviews for Hong Kong Media Law, click here.

Weisenhaus writes that “while incidents of data leaks and losses are not new in Hong Kong or worldwide, the frequency and extent of this latest wave…are threatening to become the biggest personal data crisis since the city’s personal data protection law became effective in 1996.”

She also cites similar controversies in South Korea, Vietnam, Malaysia, Thailand, Indonesia and Japan.

Weisenhaus was an invited speaker Sept. 17 at the biennial London conference organized by the Media Law Resource Centre (MLRC), a New York-based information clearinghouse for media organizations. More than 200 media lawyers from around the world participated in moderated discussions on the latest developments in media law and practice, including defamation, privacy and online liability. Speakers and participants included judges from the European Court of Human Rights, Australia and the UK and media lawyers for Gannett, BBC, CNN, Financial Times, The New York Times, Time magazine and Dow Jones.

Weisenhaus also recently addressed a forum entitled “Responsible Media in Democracy?” hosted by the Lung Ying-tai Cultural Foundation in Taipei, where she discussed media ethics and the role of the press in democracy. 

“Taiwan is a new democracy where every institution is being tested, the justice system and the media in particular,” said JMSC Visiting Professor Lung Ying-Tai, who began the foundation and its Taipei Salon in 2005 to promote international cultural exchanges and intellectual dialogues in a global context. “In recent years people have grown very frustrated and impatient with the low quality of the media and many have been asking the question whether democracy must bring bad media.” 

Lung said that Weisenhaus’s visit to Taipei drew not only a large audience of ordinary citizens, but also many local media professionals, adding, “The discussion was concentrated and lively.” 

                               Weisenhaus and UK litigator Mark Stephens (photo left) at MLRC London conference;  Weisenhaus with Taipei journalist Hsu Lu and Thomas Hodges, spokesman for the American Institute in Taiwan (photo, right).                                                                                                         

Reviewed by Danny Gittings

China’s dubious distinction as the world’s worst jailer of journalists is well known. For instance, Hong Kong reporter Xi Yang was imprisoned from 1994-97 simply for writing about Beijing’s plans to raise interest rates. For those who believe things have improved since then, the fate of Straits Times correspondent Ching Cheong stands as sad evidence to the contrary. Convicted of revealing state secrets during a closed-door trial last year, after writing some innocuous articles for a Taiwanese think tank, the ailing journalist is currently serving a five-year sentence for spying.

They were just a couple of the victims of a legal system that allows, as Doreen Weisenhaus reminds us, everything from divorce statistics to local newspapers to be categorized as state secrets. And, in case that doesn’t provide enough ammunition to jail journalists just trying to do their jobs, she adds the cautionary warning that, in China, any document can be retrospectively classified as secret.

So the first reaction on opening Hong Kong Media Law, which includes a chapter highlighting the risks of reporting from mainland China, is relief at how journalists in the British colony are still spared the nightmare of operating under what passes for “media law” in the rest of China.

But dig a little deeper into this practical guide for journalists working in Hong Kong and a more mixed picture emerges. Yes, the legal framework for the media in the former British colony shines by comparison with the dismal situation elsewhere in China. But doing better than the world’s worst jailer of journalists is hardly saying much. And reporters in Hong Kong must still tread much more carefully than their counterparts in the United States, for example.

Hence the value of this new work by Ms. Weisenhaus, the director of the Media Law Project at the territory’s leading school for reporters, the Journalism and Media Studies Centre of the University of Hong Kong. Two other local academics also contributed chapters.

Anyone familiar with how the First Amendment protects press freedom in the U.S. will be shocked at how much more steeply the cards are stacked against those forced to defend a libel suit in Hong Kong. Truth is no defense, unless you can prove every possible meaning of what you wrote in court. Nor, generally speaking, is it any use to argue that publication was in the public interest, although the courts have begun to show a little flexibility on this front in recent years.

Like many of the other minefields faced by Hong Kong journalists, this is the legacy of the less-than-media-friendly legal system that London bequeathed to its colonies. But while Britain has moved on since then—finally enacting a Freedom of Information Act in 2000—postcolonial Hong Kong has not. Its nonstatutory Code on Access to Information is peppered with exemptions, and acts as little more than another channel for distributing press releases and publicity brochures. As Ms. Weisenhaus points out, the cost is a secretive government which, while not quite on a par with its bosses in Beijing, keeps under wraps information on everything from the territory’s worsening air pollution to the relocation of its own offices.

A government with such ambivalence toward press freedom is also more inclined to use those Draconian legacies of the British era than its colonial predecessor. In particular, July 2004 saw officers from the Independent Commission Against Corruption raid seven local newsrooms, as well as the homes of several local journalists, in the largest operation of its kind ever conducted in Hong Kong. The raids, in response to the media’s efforts to report the controversy over whether a participant in the territory’s witness protection program was being illegally detained, have cast doubt on whether reporters’ notes and other journalistic material still enjoy any meaningful legal protection.

Difficult as the situation now is, it will quickly get much worse if the government reintroduces Article 23, the legislation restricting civil liberties on the grounds of national security that was put on hold after massive public protests four years ago. The legislation already on the statute books is bad enough. Once again, Hong Kong has its British legacy to blame for an Official Secrets Ordinance that makes no exception for revelations of corruption or other matters of public interest. But the aborted 2003 proposals would have extended the ambit of this law much further. As Ms. Weisenhaus notes, reports on anything from air agreements to changes in immigration policy could easily run afoul of these expanded parameters for official secrets. Although Hong Kong’s current chief executive, Donald Tsang, shows little enthusiasm for reviving such an unpopular issue, the shadow of possible Article 23 legislation only adds to the uncertainty over the legal framework in which the Hong Kong media must operate.

Despite this, those who have worked in the Hong Kong media will be only too familiar with the casual attitude toward negotiating these legal minefields that prevails in most local newsrooms. Most reporters know virtually nothing about the law of libel. In-house counsel are unknown in Hong Kong’s highly competitive media environment. All too often, the strategy when confronted with a legally questionable exclusive is to simply publish and hope for the best, rather than risk it being scooped by a rival media outlet.

That’s no way for the Hong Kong media to defend its freedoms in such an uncertain legal environment. And that’s why this book fills such an important vacuum. As Ms. Weisenhaus points out, practical guides to the legal framework in which journalists must operate are commonplace in the Western world but, until now, have been sadly absent from the English-language market in Hong Kong.

Merely knowing the law is, of course, far from enough to protect press freedom. But it is a good start, not least in better equipping journalists to fight against laws that seek to take those freedoms away. If Hong Kong Media Law plays even a modest part in that task, it will perform a valuable role in shoring up Hong Kong’s fragile press freedom.

Mr. Gittings, a former journalist in Hong Kong, is an assistant professor in law at the University of Hong Kong’s School of Professional and Continuing Education.

JMSC Assistant Professor Doreen Weisenhaus discussed her new book, Hong Kong Media Law: A Guide for Journalists and Media Professionals , at the Foreign Correspondents Club of Hong Kong on July 23.

In her talk, “Media Law in Hong Kong and China: One Country, Two Systems,” Weisenhaus highlighted key points from her book, which traces media law developments in the HKSAR since 1997 and assesses the legal terrain for the laws most important to reporters, editors, news executives and other media professionals. She also discussed the legal hurdles that Hong Kong and international journalists face while reporting on the mainland.

The talk was attended by more than 60 journalists, lawyers, students and others interested in the topic.

The book was recently published by HKU Press and was featured in a June 30 podcast interview with Ben Kwok, Lai See columnist for the South China Morning Post, and in a review in RTHK Media Digest .

Weisenhaus is director of the Media Law Project at the JMSC and has been teaching media law and ethics since 2000.