The Security Bureau has released a public consultation document on the legislation of Article 23 of the Basic Law. The Hong Kong Journalists Association (HKJA) believes that the proposed legislative framework will have profound and far-reaching implications on the press. It is necessary to raise the following questions and concerns:

Theft of state secrets 

• The consultation paper proposes that “state secrets” should cover seven fields, including “economic, social development, technological development or scientific technology.” Their broad and vague definitions make it hard for journalists to make sound judgement on what could constitute a threat to national security. This could create a chilling effect, deterring the press from doing relevant reporting due to legal concerns.
• Leaks from government sources, such as those regarding personnel changes, Executive Council decisions, an upcoming policy address, the financial budget, as well as the latest developments on police investigations, are an integral part of our work. It is difficult for the press to determine whether government sources are disclosing information with lawful authority. 
• The consultation paper did not clearly define the source of “state secrets.” HKJA hopes the government could clarify whether “state secrets” are only limited to internal documents of the Central People’s Government and the HKSAR government, or whether it also covers sources other than the government. 

Espionage

• HKJA worries that foreign public media services, including TV broadcasters, radio and international news agencies, as well as other news organisations that receive government funding, either directly or indirectly, as well as their employees and other third parties, could be classified as “external forces.” 
• HKJA is highly concerned that acts of disseminating false or misleading information may now amount to espionage. We urge the government to review whether the severity of the conduct involved and the corresponding punishment are proportional. 

Sedition 

• The consultation document proposes to raise the penalties for offences relating to “seditious intention” and expand its scope. Acts that do not directly incite the use of violence or incite others to disrupt public order could still constitute sedition, the document stipulates. HKJA worries that this could further stifle speech and press freedom, going against global trends.
• The U.K. government abolished the law on sedition in 2009, while Singapore revoked its Sedition Act in 2021. Countries such as Canada and Australia have raised the threshold for conviction of sedition, incorporating elements such as “violence” and “disruption of public order.”
• In 2022, the United Nations Human Rights Committee urged the HKSAR government to repeal the sedition law to prevent suppressing dissent. 

External interference  

• HKJA worries that the definitions of “foreign forces” and “external interference by improper means” are too broad, so much so that even normal practice as stated in the consultation paper, such as “genuine criticisms against government policies, legitimate lobbying work, general policy research, normal exchanges with overseas organisations or day-to-day commercial activities”, could fall foul of the law. 
• HKJA worries that attendance at any press conference or sports competition organised or funded by chambers of commerce or foundations with links to foreign governments could constitute “collaboration with an external force.”
• HKJA worries that the act of quoting speakers who criticised officials or made speeches deemed unfavourable to the government could be considered “knowingly making a material misrepresentation” or “threatening to damage a person’s reputation”, and therefore be in violation of the law. 
• The HKSAR government did not provide further explanation on what constitutes “necessary for safeguarding national security.” HKJA worries that this would grant unchecked powers to the Security Bureau, giving them authority to curb the operations of local news organisations or industry groups, without the need to submit evidence to court or even make its reasons public. 

Recommendation

The legislative principles in the consultation paper stipulate that the proposed law should respect and protect human rights, and strike an appropriate balance between safeguarding national security and fundamental rights. HKJA recommends that each crime legislated under Article 23 should comply with the following three general principles:

• Public interest as a statutory defence must be codified
• Causing material damage to national security must be proven as an element of the offence
• A defendant’s intention to endanger national security must be proven as an element of the offence

Specific recommendations by HKJA on each crime are laid out in the submission. HKJA wishes to emphasise that the press seeks to provide information, hold governments accountable, serve the public interest and promote communication among different stakeholders in society. Journalism serves to enhance transparency in public governance as well as promote good governance. The press is not a threat to national security. HKJA urges the government to provide sufficient protection for the press in its draft bill and avoid causing irrevocable damage to press freedom. 

Hong Kong Journalists Association Executive Committee

February  24, 2024

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