A Hong Kong court has extended a temporary ban on publishing messages online that incite violence previously granted to the city’s embattled government, as a period of civil unrest enters its sixth month.
Mr Justice Russell Coleman of the High Court allowed the order he granted on October 31 to continue until trial or further order, despite objections raised by the Hong Kong Internet Society, which stepped in as an affected party in the legal action initiated by the secretary for justice.
Under the temporary order granted last month, anyone who “unlawfully and wilfully” disseminates, circulates, publishes or republishes any material on online platforms – such as popular Reddit-like forum LIHKG or messaging app Telegram – that “promotes, encourages or incites the use or threat of violence” will be punished for contempt of court.
The ban aimed to curb illegal acts that could cause “bodily injury to any person” as well as “damage to any property”, according to the order.
However, the Internet Society – comprising 1,890 members who work in internet-related fields – argued the ban was an attempt to censor online content, threatening freedom of expression.
In continuing the order, Coleman amended its wording so would only ban online materials published “for the purpose of” promoting, encouraging or inciting the use or threat of violence. He also ordered the injunction could only restrain people who “wilfully” assist others to commit such acts.
He said he granted the application because of ample evidence of widespread incitement to violence, targeting different sectors of society.
Civil society – which envisages the protection and exercise of human rights by persons at the same time protecting and respecting the rights of others – will not be maintained, and is certainly not built, by a barrage of bricks and bombs and burning barricades
Mr Justice Russell Coleman
Coleman did not hide his views on the recent protest chaos in his 40-page judgment, describing the recent escalation of violence and destruction as approaching anarchy and detached from an aim to promote democracy.
“Civil society – which envisages the protection and exercise of human rights by persons at the same time protecting and respecting the rights of others – will not be maintained, and is certainly not built, by a barrage of bricks and bombs and burning barricades,” he said.
Lawmaker Charles Mok, founding chairman of the Internet Society, said it was disappointed with the extension and worried the injunction would create a chilling effect on internet users. He also criticised the government for bypassing existing laws and legislative processes by applying for an injunction.
But he added that the group found comfort in the fact that the court had clarified online platform administrators would not be held liable for violence-inciting publications on their services.
At the hearing, Nigel Kat SC, representing the society, said the interim order had put innocent people at risk of prosecution.
Kat accepted the justice secretary had a legitimate aim to prosecute people for inciting violence, but said any order which restrained free speech must be narrowly defined in terms of the criminal law, to avoid a chilling effect on lawful communication.
“Even if it’s a lawful injunction on its face, you have to be satisfied … that the intrusion into the rights of people is minimal,” he told the judge.
He said the society’s members worried the terms of the interim order were ill-defined, meaning they might fall foul of the order if people who use their services violate it, despite no intent on their part.
Victor Dawes, for the justice secretary, said a continuation of the temporary ban was necessary given the gravity of the social unrest. He added the temporary order had brought about a “very real and meaningful effect”, saying the daily average of violent offences had dropped since the order was in place.
Dawes said the order had also alerted Telegram administrators to close down a channel called “Dadfindboy”, which was set up by doxxers who disclosed personal details of police officers for online harassment. Kat rejected the claim as unsubstantiated.
In his judgment, Coleman said while it was necessary to protect the free, speedy circulation of information, curtailing criminal speech and activities would require a certain degree of intrusion into people’s rights.
“I do not see a less intrusive measure which could have been used without unacceptably compromising the objective,” he said.
He also ruled that the order could not catch a platform operator which assisted in the publication of information without knowledge. He accepted, however, he could tweak the wording of the order to address the Internet Society’s concerns.
A sealed copy of the amended order will be displayed on the websites of the government and the police. A trial date has yet to be fixed.
Superintendent Swalikh Mohammed, of the Cyber Security and Technology Crime Bureau, who was at the hearing, told the press the force had arrested one person in relation to publishing violence-inciting materials online earlier this week, over suspicion of incitement to commit public nuisance.