Gov’t risks ‘Streisand effect’ in bid to ban ‘Glory to Hong Kong’ protest song, court hears
Hong Kong Free Press
The Hong Kong government’s application to ban unlawful acts linked to a popular pro-democracy protest song risks the “Streisand effect” and increasing public engagement with the song, a court has heard.
High Court Judge Anthony Chan on Friday dealt with an application from the city’s secretary for justice for an injunction to bar the distribution of pro-democracy protest song Glory to Hong Kong with the intention to incite secession, sedition, or to violate the national anthem law. The government also sought to bar anyone from assisting with those acts.
The song, which emerged during the 2019 extradition bill protests and unrest, contains the phrase “Liberate Hong Kong, revolution of our times,” a slogan which was ruled to be secessionist in the city’s first national security trial.
Senior Counsel Abraham Chan, who acted as “a friend of the court” – someone who is not involved in a legal case, but who assists a court by offering information or insight – said on Friday that the government’s application for an injunction “would bring about an own goal” and risk the “Streisand effect.”
There was “empirical evidence” that after the government announced that it would apply for a ban, “the level of engagement with the song increased,” Chan said, speaking in English. He added that he was not advocating against the government’s application, but presenting the opposing case so the court would hear both sides.
The “Streisand effect” describes the unintended failure of an effort to conceal information. The term was coined after American singer Barbra Streisand drew greater attention to photographs of her home in California after filing a lawsuit in an attempt to conceal the photos from the press.
Chan also said that the court had to consider the “chilling effect” that the injunction would bring.
“You can’t simply wave the card of national security, to say don’t worry about chilling effect,” said the senior counsel.
He also said that the injunction may not help the administration to fulfil its intended purposes.
If it was the government’s goal to educate the public about the national security risk involved in the acts mentioned in the injunction, that could have been achieved by publicising the security legislation.
There was also a “lack of any concrete evidence” that the public was unaware that the broadcasting of the song with seditious purposes was illegal, said Chan.
The injunction would also not help the administration in requesting internet platforms such as Google to remove the song from its site, the senior counsel said.
As it was not the government’s intention ban the song, but only unlawful acts relating to the song, it would be difficult for tech giants to determine in what instances was the song distributed with unlawful intentions, said Chan.
The senior counsel added that those who wanted to violate the law would not stop doing so simply because an injunction was granted.
National security interests
The justice minister, represented by Senior Counsel Benjamin Yu on Friday, argued that the fact that there might be people intending to violate the injunction was not a reason for the court to refuse the government’s application.
Yu also said that unless there was an injunction, the song would still be used to harm national security.
“We say that the national security interest cannot be in any way be underestimated,” said Yu, also speaking in English.
Yu cited injunctions sought by the MTR Corporation and the city’s Airport Authority, which were effective in stopping the obstruction of public transport facilities during the 2019 extradition bill protests.
Chan said in response that those injunctions were sought before the enactment of the sweeping security law in June 2020. In the present case, the acts the government sought to bar with the injunctions were already in violation of the Crimes Ordinance and the security legislation, said Chan.
The judge also questioned whether the injunction would pose risk of double jeopardy against a defendant, whereby their action would be prosecuted twice: once in a criminal proceeding under the security law or sedition law, and again in a civil contempt of court charge.
Yu said in response that, if the court granted the injunction, it would be providing “an alternative avenue” for the secretary for justice to pursue those who committed the acts.
In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure.
The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.
Bona fide journalism
The Hong Kong Journalist Association (HKJA), the city’s largest press group, said on Tuesday that the justice department had agreed to include a clause in the injunction to make clear that journalistic work would not be impacted if the injunction was granted.
Yu said on Friday that the clause should not be viewed as a exemption for journalists to commit the prohibited acts, and reporters could still violate the order of they distributed the song with unlawful intentions.
Ronson Chan, head of the HKJA, said after the court hearing that the group had “tried its best” to protect journalists.
“I would say [the clause is] not comprehensive, but we have tried our best to get the most, well protection to the journalist,” Chan told reporters in English outside the court.
The ruling on the government’s application will be handed down next Friday.
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