Media Law JMSC6022

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Media Law JMSC6022

• Examining Legal Foundations and Freedom of
  Expression, Part II
• Assistant Professor Doreen Weisenhaus
• September 16, 2003

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What is law?

• Collection of rules, principles, standards,
  concepts to regulate human behavior.
• Some are general (Constitution) some are
  specific (administrative rules)
• Some are concerned with rights and duties of
  persons and institutions in relation to each
  other. (civil law)
• Some punish offences against the general public
  interest (criminal law)

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More law.

• In Hong Kong, as in the U.K. and U.S., there is
  no single written set of rules.
• Law is not codified as in China, France (also
  known as civil code systems).
• Depends on custom, precedent, equity, statutes,
  Constitution.

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Ok, what is the law in Hong Kong?

• On July 1, 1997, the Peoples Republic of China
  resumed sovereignty over Hong Kong, now Special
  Administrative Region of the PRC.
• One country, two systems principle written into
  the Basic Law means that Hong Kongs previous
  legal system has continued as the foundation of
  the rule of law in the Hong Kong SAR
• BUT change of sovereignty reflects Hong Kongs
  new status as a part of the PRC.

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Rule of Law

• Ensured by the Basic Law
• Principle of legality
• Principle of equality
• Transparent, published, predictable
• Impartially administered
• Sometimes called the supremacy of law

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But is rule of law different in Hong Kong?

• Cullen says Yes!
• Rule of Law has 3 elements independent
  judiciary, free press and democratic-representativ
  e government.
• Historically, Hong Kong did not have democracy.
  Thus, its press served as a parliament-in-print
• Judiciary, while independent, conservative in
  protecting individual rights
• Impact of Chinese culture?

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So, what does that mean?

• Rule of Law guiding principle
• What are components?
• Common Law
• Authority to enact own laws
• Compliance with international treaties
• But remember, Basic Law is, well, basic. Its
  Hong Kongs Constitution.

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What is a Constitution?

• CONSTITUTES the basic institutions of government,
  distributes governmental authority, defines the
  relationships between them and their relationship
  with citizens.
• Some are written like US and Australia. A few,
  U.K., have none.
• Hong Kong is considered to have a written one but
  with many abstract concepts
• What is ideology of a constitution? (political,
  philosophical or moral ideas)
• What is Hong Kongs?

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Definitions of Constitutions

• A frame of political society, organized through
  by lawone in which law has established permanent
  institutions with recognized function, definite
  rights.James Bryce, Studies in History and
  Jurisprudence, 1901
• A selection of LEGAL RULES which govern the
  GOVERNMENT of that country and which have been
  embodied in a document. K.C. Wheare, Modern
  Constitution, 1966
• Codes of RULES which govern the allocation of
  FUNCTIONS, POWERS AND DUTIES among various
  government agencies. -S.E. Finer, Comparative
  Government 1970

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Common Law

• Basic Law (Art. 84) says H.K. courts may refer
  to common law precedents of other common law
  jurisdictions.
• English common law (Before 1997, HK required to
  follow British law)
• Judge-interpreted law
• Precedents (must follow previous cases)
• Originally, referred to law common to English
  kingdom. Contrast, Civil Code system applied to
  European continent typically based on Roman and
  Napoleonic codes

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More on Common Law

• Since 15th century, reports of judgments handed
  down by judges established legal principles
  regulating the relationship between state/citizen
  and citizen/citizen. Now, hundreds of thousands
  of reported cases.
• Remember, precedent throughout common law world,
  not just one jurisdiction.

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Enacted Law

• Vast majority made locally, contained in Laws of
  Hong Kong
• Initiatives from government, Legco, Law Reform
  Commission, community.
• HKSAR responsible for drafting and introducing.
  Usually, 100 a year.
• LRC advisory body which considers areas of law
  reform referred to it by Secretary for Justice or
  Chief Justice.
• International Law more than 200 international
  treaties and agreements..

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Sources of Law on Freedom of Expression in Hong
Kong

• Common law
• Constitutional law (Basic Law)
• Statutory law (Bill of Rights Ordinance)
• International treaties and conventions (ICCPR)
• Case law that looks at all of the above

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Contrast with China...

• Media law in China is more concerned with
  procedural requirements of approval, registration
  and supervision than it is with matters of
  substance, which are typically expressed in
  general, non-specific terms. The media regulatory
  system is set up so the Party can use mass
  communication primarily as an instrument to
  achieve its political and economic goals. Its
  regulatory system is a blend of criminal and
  administrative law. -- Perry Keller, author,
  Chinese Law and Legal Theory

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Freedom of Expression

• What is it?
• Freedom of Expression?
• Freedom of Speech?
• Freedom of the Press?
• Freedom of Information?

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Classical Arguments

• Promotes discovery of truth
• Promotes political participation (by being better
  informed)
• Maintains social stability (information allows
  problems to be addressed quickly)
• Provides safety valve (more fulfillment)
• Provides crucial check on government

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John Milton in 1644

• Truth is strong and will prevail
• Seeking to know truth to improve ones
  understanding has a particular priority
• Exposure to falsity is valuable to appreciation
  of truth

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Freedom not absolute.

• In HK, rights of community often in conflict with
  rights to publish/broadcast
• Media outlets licensed
• Restrictions on court reporting
• No Freedom of Information Act
• Official Secrets Ordinance
• Prevention of Bribery Ordinance
• Control of Obscene and Indecent Articles Ordinance

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Legal Milestones for Freedom of Expression in
Hong Kong

• 150 years under colonial rule
• 1984 Sino-British Joint Declaration
• 1991 Bill of Rights Ordinance (Art. 16)
• first time various fundamental rights laid
  down and enforceable by courts
• 1997 Basic Law in effect (Art. 27, 39)
• 2002/2003 Failed attempt to pass Article 23 laws

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Article 27 of Basic Law v. Article 16 of BORO

• BL/Art. 27 Hong Kong residents shall have
  freedom of speech, of the press and of
  publication
• BORO/Art. 16 Everyone shall have the right to
  freedom of expression this right shall include
  freedom to seek, receive and impart information
  and ideas of all kinds, regardless of frontiers,
  either orally, in writing or in print, in the
  form of art, or through any other media of its
  choice.

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Freedom of Speech in HK

• The freedom of speech (or the freedom of
  expression) is a freedom that is essential to
  Hong Kongs civil society. It is constitutionally
  guaranteed by the Basic Law (Article 27). The
  right of fair comment is a most important element
  in the freedom of speech. In a society which
  greatly values the freedom of speech and
  safeguards it by a constitutional guarantee, it
  is right that the courts when considering and
  developing the common law should not adopt a
  narrow approach CFA, Albert Cheng case.

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Who can forget Article 23?

• The HKSAR shall enact laws on its own to prohibit
  any act of treason, secession, sedition,
  subversion against the Central Peoples
  Government, or theft of state secrets..

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What are sedition, subversion and treason,
according to Article 23?

• Sedition intentionally incites others to commit
  treason, subversion or secession OR intentionally
  incites others to engage, in HK or elsewhere, in
  violent public disorder that would seriously
  endanger the stability of PRC. ( need to incite
  only 1 or more, either life or 7 years)
• Subversion disestablishes the basic system of
  PRCoverthrows CPGintimidates CPG. (life)
• Treason with intent to overthrow, intimidate or
  compel CPG to change its policies or measures,
  joins or is part of foreign armed forces at war
  with PRC, instigates foreign armed forces to
  invade PRC with force or assist any public enemy
  at war with PRC by doing any act with intent to
  prejudice the position of PRC in war.

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Dont forget handling seditious publications

• A person who publishes, sells or offers for
  sale, distributes or displays any seditious
  publication, prints or reproduces a seditious
  publication or imports or exports a seditious
  publication with intent to incite others
• A seditious publication is one that is likely to
  induce a person to commit an offense of treason,
  subversion or secession (7 yrs)

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Do we need new laws?

• HKSAR, PRC Yes, but do it another time
• Press No, protect Freedom of Expression
• Article 23 Group No, there are sufficient laws
  on booksCrimes ordinance, Official Secrets
  Ordinance, Societies Ordinance.
• People No, 500,000 marched July 1 to protest
• Last prosecution for sedition in 1952, a HK
  newspaper published articles attacking British
  rule in HK.

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Problems...

• Sedition, subversion laws vague.
• Sedition, a Star Chamber creation to quash
  critics of government.
• In US, 1919 famous clear and present danger
  testlater refined in 1969 -- cannot forbid
  advocacy of use of force unless it incites
  imminent lawless action.
• In China, subversion is capital offense, sedition
  is not..
• To be continued....

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Meanwhile, back to Hong Kong Courts

• District Court civil, monetary claims up to
  600,000 some criminal matters but not murder or
  rape no jury maximum 7 years imprisonment
• High Court Court of First Instance (civil and
  serious criminal, juries) and Court of Appeal
  (from CFI, DC, various tribunals)
• Court of Final Appeal (highest court, binding on
  all HK courts)

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Competing Interests

• Right to fair trial
• BL Art. 87 Anyone who is lawfully arrested
  shall have the right to a fair trial by the
  judicial organs without delay and shall be
  presumed innocent until convicted by the judicial
  organs.

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Fair trial

• BORO Art. 10 the press and the public may be
  excluded from all or part of a trial for reasons
  of morals, public order or national security...or
  when the interest of the private lives of the
  parties so requires, or to the extent strictly
  necessary in the opinion of the court in special
  circumstances where publicity would prejudice the
  interests of justice, but any judgment
  renderedshall be made public except where the
  interest of juvenile persons requires, the
  proceedings concern matrimonial disputes or the
  guardianship of children.

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More Competing Interests...

• Contempt of court
• Governments right to conduct criminal
  investigations
• Right of privacy?
• Right to reputation

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What about Right to Reputation?

• BORO/Art. 16
• 3) The exercise of the rights...carries with it
  special duties and responsibilities. It may
  therefore be subject to certain restrictions, but
  these shall only be such as are provided by law
  and are necessary-(a) for respect of the rights
  or reputations of others or (b) for the
  protection of national security or of public
  order, or of public health or morals.

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See you in court!

• September 23, at 615 p.m.
• High Court Building,
• 38 Queensway
• foyer of main entrance.