National Security Law guts press freedom
Hong Kong Freedom of Expression Report 2022
Chapter 2
The Hong Kong government cites the increasing number of media outlets operating in the territory to rebut criticism about the impact of the National Security Law on press freedom. What it does not mention is that this increase is mainly due to an increase in the number of mainland regional media stationed in the territory. Nor does it acknowledge that at least 12 media outlets have closed because of the enforcement of the National Security Law during the period covered by this report - either directly or indirectly (see Table 1). The large number of media closures in a year or so is unprecedented in the history of Hong Kong.
The most prominent example involved the pro-democracy newspaper, Apple Daily, and the arrest of several senior members of its journalistic staff on national security charges. According to available records, 10 journalists and four companies have been prosecuted under the NSL or related sedition offences in the Crimes Ordinance because of their journalistic work, in a move that is nothing less than the crushing of press freedom. In addition, eight other people were either arrested or placed on wanted lists for sedition because of the roles they played in media outlets.
As pointed out in previous annual reports on freedom of expression compiled by IFJ affiliate the Hong Kong Journalists Association (HKJA), about 85 per cent of the owners or top executives of the city's major media outlets have been co-opted by the governments in Beijing or Hong Kong, with Apple Daily being the prominent exception. After the closure of Apple Daily, the media situation became more critical. Other media organisations tried to survive through cautious attempts at co-existence or relocation overseas. The result is a serious chilling effect on media outlets still in operation and the undermining of their vital watchdog role.
Apple Daily journalists hold aloft the newspaper’s last edition outside their office on June 24, 2021. Unlike many other media outlets affected by the 2020 National Security Laws, Apple Daily’s staff were criminally charged and the newspaper was forced to close. Credit: Daniel Suen / AFP
“The large number of media closures in a year or so is unprecedented in the history of Hong Kong.”
The death of Apple Daily
The most significant targets of the crackdown were Apple Daily, founded by Jimmy Lai, and its parent company Next Digital. Since it was founded in 1995, the newspaper had fearlessly criticised the Chinese Communist Party and consistently supported universal suffrage for the election of Hong Kong’s chief executive and legislature. It supported the July 1 anti-government marches, which were held annually to mark the 1997 handover of Hong Kong to the People’s Republic of China, as well as the 2014 Umbrella Movement and the 2019 protests against the government’s controversial extradition bill. It was sharply critical of the government’s performance and exposed scandals involving senior officials.
Apple Daily faced severe blowback for taking such a stance. Its reporters were not allowed to report in mainland China and it suffered an organised boycott by advertisers. Some of its reporters were doxed, with their personal information being released online. From time to time, mainland Chinese media accused Apple Daily of being a propaganda machine that tarnished Hong Kong’s reputation. One report described Jimmy Lai as “national scum” for acting as “a political tool for foreign forces working against China and messing with Hong Kong.” On December 10, 2020, Apple Daily reported that Lai had been charged under the National Security Law with allegedly colluding with foreign forces.
Despite increasing political and economic pressure, Apple Daily continued to operate without restraints until the morning of June 17, 2021, when the national security authorities deployed more than 500 police officers to search the newspaper’s office. They arrested five senior executives and took away at least 40 computers containing journalistic material.
Apple Daily was left in a precarious financial situation after then Secretary for Security John Lee Ka-chiu, who is now the territory’s Chief Executive, ordered the freezing of its accounts. Although funds were available in other bank accounts for emergencies, Mark Clifford, an independent director of Next Digital, Apple Daily’s owner, understood that once these accounts were used to cover items normally paid from the frozen accounts, the government would freeze them as well.
“From time to time, mainland Chinese media accused Apple Daily of being a propaganda machine that tarnished Hong Kong’s reputation. One report described Jimmy Lai as “national scum” for acting as “a political tool for foreign forces working against China and messing with Hong Kong.”
One month before the June 17, 2021 raid, then Secretary for Security John Lee had already used the National Security Law to freeze Apple Daily’s founder Jimmy Lai’s 71 per cent stake in Next Digital, worth at that time about HK$300 million (USD 38.2million), and the bank accounts of his three companies. This meant that he could no longer bail out Apple Daily as he had done in the past.
Under the Implementation Rules for Article 43 of the National Security Law, the Secretary for Security has the power to freeze assets without court approval if he has grounds to suspect that a certain person or organisation might endanger national security. However, the law does not set out clearly the grounds needed to justify such an order.
The freezing of the bank accounts resulted in a lack of funds to settle wages, printing costs and other bills, an insurmountable difficulty. Under these circumstances, and with the arrest of an editorial writer and an exodus of Apple Daily journalists, the newspaper had no option but to wind up its 26-year operation. The last issue was published on June 24, 2021, one week after the raid. The final edition sold a record-breaking 1 million copies.
Secretary for Security John Lee attempted to reassure the public that the raid would not affect press freedom. He argued that the law enforcement action was not meant to target journalistic work but to prevent “acts suspected of employing news work as a tool to jeopardise national security”.
Senior Superintendent Steve Li Kwai-wah of the Hong Kong Police Force, who was in charge of national security issues, told reporters that since 2019, Apple Daily and its online platform had published more than 30 Chinese and English articles calling on foreign countries to sanction Hong Kong and China. He did not elaborate. Ominously, he also said that the charge of collusion under the National Security Law did not mean that a media outlet needed a foreign partner. The maximum penalty for collusion is life imprisonment.
Eight media trade unions and organisations, including the HKJA, issued a joint statement to express fear in the industry about the search and seizure operation against Apple Daily. They also expressed concern that the National Security Law might be “weaponised” against news media, creating a chilling effect and self-censorship.
The UK, the US and the European Union said the police acts showed that the National Security Law was being used to suppress press freedom and freedom of expression. The US further alleged there was a political motive behind the laying of charges.
There were fears that dissident voices would no longer be heard after the closure of Apple Daily. Journalism professor Clement So said outspoken opposition voices could hardly survive in those newspapers still operating because without Apple Daily no other newspaper could take up the role of social critic. His colleague, Eva Chan, added this meant Hong Kong could no longer tolerate opposition voices and the closure was a blow to confidence in the city's “one country, two systems” governing principle.
Current Hong Kong Chief Executive John Lee speaks to the media before an Executive Council meeting on September 6. John Lee, a former policeman, oversaw the implementation of Hong Kong’s national security law as its undersecretary of security. Credit: Isaac Lawrence / AFP
Journalists charged with sedition
On December 28, 2021, Jimmy Lai and six former Apple Daily staff members were charged with the colonial-era offence of “seditious intent”, which is an indictable offence under the Crimes Ordinance. The Ordinance stipulates that it is a crime for anyone to bring into hatred or contempt or excite disaffection against the Hong Kong government or the administration of justice, including by publishing articles. The offence applies to any person who “prints, publishes, sells, offers for sale, distributes, displays or reproduces any seditious publication,” with the result that speech content alone can be criminalised.
Conviction solely depends on whether a person's speech is deemed seditious. No action is necessary. The authorities can prosecute by inferring whether an author or publisher has seditious intent based on the content of an article alone, regardless of whether the remarks cause any disruption of public order or whether the seditious intent is actually achievable. On conviction, a first offender can be sentenced to two years in prison.
In May 2022, the case against Jimmy Lai and the six former Apple Daily staffers was transferred to the Court of First Instance for trial on a date yet to be fixed. The seven individuals continued to be remanded in custody pending trial. On August 22, 2022, Lai said he would plead not guilty to the charges under the National Security Law. If found guilty, he faces a possible sentence of life in prison.
Despite there being different penalties under the National Security Law and the Crimes Ordinance, most defendants charged under either immediately lose their personal freedom, because the threshold for bail is higher than for other general offences. Bail is usually granted in most general criminal cases, but under the National Security Law “no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security”.
Within less than half a year, a publicly listed media conglomerate with the largest readership in Hong Kong and more than 500,000 online subscribers was killed. Its rapid demise reflects a fundamental change in the way that the law is applied to Hong Kong media. In short, the National Security Law gave the Hong Kong government a powerful weapon to stifle private property rights, freedom of speech, personal freedom and even the way the rule of law is traditionally applied.
Table 1: Media outlets closed in response to the National Security Law
*DB Channel and Dare Media HK continued to post statements or appeals on their Facebook pages very occasionally after they announced they would close.
“This meant Hong Kong could no longer tolerate opposition voices and the closure was a blow to confidence in the city's “one country, two systems” governing principle.”
Complete elimination of Next Digital
The Hong Kong authorities initiated a series of acts to force Apple Daily's owner, Next Digital, to cease operations. After the newspaper and its sister publication, Next Magazine, closed, the Hong Kong Stock Exchange wrote to Next Digital in July 2021, asking whether it could maintain sufficient business and had enough assets to remain listed. At the time, parent company Next Digital was continuing to run the online version of Apple Daily in Taiwan and North America, as well as printing and mobile games operations in Hong Kong.
Next Digital’s woes were exacerbated by the fact that four of the directors on its decision-making board had left Hong Kong and several senior executives were detained. Just one director still enjoyed personal freedom in Hong Kong. Further, Jimmy Lai’s 71 percent stake had been frozen, so he could not exercise his voting rights.
Another way to wind up Next Digital was liquidation. At the end of July 2021, Financial Secretary Paul Chan Mo-po appointed an inspector to probe whether Next Digital had been mismanaged. After the inspector presented his interim report in mid-September, together with the findings of the Hong Kong Securities and Futures Commission, Mr Chan presented a petition to the Court of First Instance to wind up Next Digital. In mid-October 2021, the court granted the Financial Secretary’s application to appoint provisional liquidators to handle company assets and conduct negotiations to sell its Taiwan and Hong Kong operations.
More than three months before the liquidation application was heard in the High Court in mid-December, the four remaining Next Digital directors resigned. With no legal representative sent by Next Digital to the hearing, nor any objections from anyone else, the court ordered its immediate liquidation.
Hong Kong financial secretary Paul Chan Mo-Po walks past media photographers before entering Hong Kong’s legislative assembly on July 13. In September 2021 Chan sought privileges from the High Court of Hong Kong to liquidise Next Digital following the seizure of the news outlet’s assets in June 2021. Credit: Vernon Yuen / NurPhoto / NurPhoto via AFP
News outlets adapt to survive
Facing extreme changes in the environment affecting freedom of expression, media organisations had few choices. One was to be cautious in an attempt to avoid political red lines and co-exist with the National Security Law, while being prepared for the worst to minimise losses.
Three days after Apple Daily closed, online media outlet Stand News announced that while it would continue to adhere to its existing editorial policy, it would immediately take down commentaries published before June 2020 to reduce the risk of crossing national security red lines. It also stopped accepting sponsorship to avoid wasting supporters’ money in case its website was forced to shut down.
At the same time, the outlet prepared for the worst by laying off employees with compensation and re-employing them to avoid being unable to pay severance pay and wages in case its assets were frozen. Six of eight board members resigned, leaving two in place.
Traditional outlets tried to coexist with the authorities under the new conditions while keeping all articles. Ming Pao newspaper, which publishes commentaries and columns every day, reacted by adding an annotation similar to a disclaimer at the end of every article: “Criticisms, if any, in current affairs articles published on this website are aimed at pointing out errors or drawbacks in the relevant systems, policies or measures, with the purpose of prompting correction or elimination of these errors or drawbacks, and improvement via lawful means. There is absolutely no intention to incite hatred, dissatisfaction or hostility in other people against the government or other communities.”
Despite Ming Pao posting its disclaimer, controversy erupted the next day. An article called the authorities' arrest of media bosses a "large-scale reprisal" which had the effect of diverting attention from the fact that "people’s hearts have not yet returned", as reflected by the low voter turnout in the December 2021 Legislative Council elections.
Three days later, Beijing’s main mouthpiece in Hong Kong, Ta Kung Pao, published a commentary questioning whether Ming Pao meant to take over Apple Daily’s seditious role, and pointed out that the disclaimer attached to the article did not work. Commissioner of Police Raymond Siu Chak-yee made a similar point, saying the disclaimer could neither offer protection nor relieve the paper of criminal responsibility for law-breaking speech.
No action was taken against Ming Pao, but the comment raised fears that a newspaper could not rest easy even if its articles that were critical of the government did not provoke violence, hatred or disaffection.
Table 2: Media personalities and outlets charged
Apple Daily (closed) and Next Digital (liquidated)
-
• Conspiracy to collude with foreign forces
• Conspiracy to pervert the course of justice
• Conspiracy to publish seditious publications
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications Item description
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications
-
• Conspiracy to collude with foreign forces
• Conspiracy to publish seditious publications
Stand News (closed)
-
• Conspiracy to publish seditious publications
-
• Conspiracy to publish seditious publications
-
• Conspiracy to publish seditious publications
Online radio channel D100
-
• Actions “with a seditious intention”
• Money laundering
Media tycoon Jimmy Lai is escorted into a Hong Kong Correctional Services van outside the Court of Final Appeal in Hong Kong on February 1, 2021, after being ordered to remain in jail while judges consider his fresh bail application. Credit: STR / AFP
“The most radical response by media houses to the new environment was to close voluntarily before the authorities could impose the same outcome by force.”
Media and journalists seek safety overseas
Some news outlets attempted to keep going by relocating outside the territory. Initium Media, a subscription-based digital media outlet providing in-depth news that was launched in Hong Kong seven years ago, moved its headquarters to Singapore in August 2021. Chief Executive Editor Jing Wu said in an open letter to readers on its sixth anniversary that “the road to freedom has grown more challenging” over the past six years, as Hong Kong's global press freedom ranking plummeted. She did not explain whether the decision to move was related to the National Security Law, only stressing that Initium Media would continue to produce features on current affairs in mainland China, Hong Kong and Taiwan and keep an eye on global changes.
Individual journalists also opted to leave. Veteran Steve Vines, who had resided in Hong Kong for 35 years, announced his departure in August 2021. He conceded that he left Hong Kong for Britain out of fear of the "white terror" under the National Security Law and pointed out that "no one in their right mind can possibly assert that Hong Kong is a safe place for journalists". He revealed to Britain's Financial Times that he had been targeted by pro-Beijing people and received warnings.
Media outlets close voluntarily
The most radical response by media houses to the new environment was to close voluntarily before the authorities could impose the same outcome by force. Three days after Apple Daily ceased publication, digital media outlet Post 852 removed all its videos in view of “the plummeting political atmosphere.” Rice Post, which had attracted 40,000 likes, closed its Facebook page on July 1, 2021, citing "insufficient staff."
Another digital media outlet, DB Channel, which had won Human Rights Press Awards in Hong Kong, folded in November, purportedly because its founder, Frankie Fung Tat-chun, was denied bail after being arrested over his participation in a pan-democrat primary election for the Legislative Council. He was accused of conspiracy to commit subversion and remanded in custody pending trial. His bid for bail was rejected – reportedly over an allegation that DB Channel was a “seditious platform”. The online outlet then laid off all its staff.
Most media organisations took a wait-and-see attitude until Stand News shut down (see below) under immense pressure from the national security authorities. Founded in late 2014, the online outlet emphasised editorial independence, adhering to reporting the truth and safeguarding the core values of democracy, freedom and human rights. It operated on a non-profit basis and had repeatedly won press awards. It twice topped the ranking of online news media credibility based on surveys by Chinese University of Hong Kong.
After protests broke out in 2019 against the government extradition bill, which allowed for accused people to be sent to the mainland for trial under Chinese law, Stand News live-streamed protests and clashes between police and demonstrators for hours on end. From time to time, it was targeted by the police and government supporters. Many of its reports were criticised by senior government officials and pro-Beijing media.
Hong Kong Police officers gather outside the High Court on July 30 for the trial of Tong Ying-Kit, the first person to be tried under the 2020 Hong Kong National Security Law. Credit: Isaac Lawrence / AFP
Bell tolls for Stand News
On the morning of December 29, 2021, police deployed 200 officers to raid the Stand News headquarters, arrested six incumbent and former directors, and froze HK$61 million in funds. That afternoon, Stand News announced that it would shut down immediately, lay off more than 60 staff and close its bureau in the UK. Commenting on the police action, former Secretary for Security, John Lee, who had by then been promoted to Chief Secretary, vowed to hit hard at “evil elements” who allegedly used their position as members of the media to pursue unlawful ends.
However, behind the stern words it was clear that this was another attack on the written word. The authorities, on the basis of published content alone, presumed that articles carried seditious intent and pressed charges. Senior Superintendent Steve Li said very clearly that many articles by Stand News were seditious, aimed at inciting hatred against the government and the Hong Kong judiciary and inciting other people to use violence. He said other articles endangered national security, incited secession and subversion of state power, or called on foreign governments to impose sanctions on Hong Kong and mainland China.
In June 2022, the outlet’s former Editor-in-Chief, former acting Chief Editor and its parent company faced a single charge of “conspiring to publish seditious publications.” No national security charges were laid, but Stand News' assets remain frozen. The trial was set to begin on October 31, 2022.
Given the precedent of Apple Daily, it was no surprise that Stand News folded quickly. The warning bell at this time was national security official Steve Li's statement that the definition of "seditious publications" was not limited to opinion articles, but also included news reports. He explained that the security forces’ focus was not on a certain type of news, such as reports about international sanctions, but on reports that were seen as being intended to incite sedition. In other words, all reports were within the scope of national security investigations.
According to reports, news articles in breach of the law included interviews with Uyghurs criticising the conditions in Xinjiang’s re-education camps; exiles talking about international sanctions; an exclusive interview with Gwyneth Ho Kwai-lam, a journalist turned activist who was remanded in custody pending trial in connection with a pan-democrat election primary; and a report on Chow Hang-tung, the former vice-chairwoman of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, winning the "Outstanding Democrat of China" award.
Police also criticised an article regarding the second anniversary of the “CUHK Conflict". It involved interviews with Chinese University of Hong Kong graduates and reviewed the violent clashes in 2019 between police and students on the university campus during the movement against the government's extradition bill. The article was accused of "inciting hatred against the police" and glorifying illegal acts.
Stand News editor Patrick Lam is handcuffed and escorted by police after the deployment of police to search the news outlets’ Kwun Tong premises on December 29, 2021. Patrick Lam and other Stand News editors have since been charged with conspiring to publish seditious content. Credit: Daniel Suen / AFP
“Chief Editor and Chief Executive Officer of Citizen News, Daisy Li Yuet-wah, explained that the rapid changes in society meant she could no longer ascertain whether a report or even a sentence would breach the law.”
More news outlets shut down
The political red line was stretching into news reporting and prompting a wave of closures. Online media outlets such as CLS, Hong Kong Independent Media News, and Internet Broadcasting Hong Kong quickly folded. CLS said it was no longer possible to ensure the safety of journalists and photographers under the National Security Law. Hong Kong Independent Media News decided to shut down for fear of accidentally violating the National Security Law.
On January 2, 2022, the five-year-old, award-winning online media outlet Citizen News decided to close. Chief Editor and Chief Executive Officer of Citizen News, Daisy Li Yuet-wah, explained that the rapid changes in society meant she could no longer ascertain whether a report or even a sentence would breach the law. At the time Stand News shut down, Citizen News Chief Writer Chris Yeung Kin-hing had already worried about the wide boundaries of sedition, as a factual report which pointed out the shortcomings of the epidemic prevention policy and caused citizens to resent the government could also be construed as seditious. Four days later, he admitted that he could not clearly grasp the boundaries of law enforcement and could barely ensure the safety of news staff. The outlet therefore had no alternative but to cease operation.
One day later, Mad Dog Daily, which was founded by well-known current affairs commentator and former legislator Raymond Wong Yuk-man, announced the closure of its website and Facebook page. Wong explained that when Stand News' opinion articles were deemed seditious, it was inevitable that Mad Dog Daily would be incriminated. At the same time, another online media outlet founded by Wong, MyRadio, took down all the current affairs programmes it had produced in Hong Kong.
Headquartered in Washington DC, Radio Free Asia suspended production of current affairs programs by its Cantonese channel in Hong Kong to avoid risks. An email addressed to commentators and hosts in February noted that "national security red lines" were everywhere in Hong Kong, and the freedom of speech accorded to locally-based commentators and hosts under Hong Kong’s Basic Law was not protected by Hong Kong and Chinese laws. It therefore decided to suspend the production of three current affairs commentary programmes, including those hosted by China expert Johnny Lau Yui-siu and social policy scholar Chung Kim-wah.
Online media outlet Passion Times was directed by national security personnel to delete some content that "endangered national security" in mid-May 2022. The person in charge of the outlet immediately deleted the content. The police did not take further action. This raised the question of why authorities asked for content to be removed if it did not breach the law. Police refused to comment on the facts of the case, and Passion Times was unwilling to disclose what content it had taken down.
FactWire News Agency continued to operate as if nothing had happened. Founded in 2015 through crowdfunding, the agency focused on investigative reporting. It won numerous press awards in Hong Kong and the region. Its subscribers included not only local media organisations, but also international media such as the BBC, Reuters and the Financial Times.
In April 2022, FactWire revealed that both sons of John Lee, the only candidate for Hong Kong's Chief Executive, worked with members of the Election Committee, the function of which is to select Chief Executive, namely, Mr Lee. In early May, the agency also discovered a built-in face recognition feature in the Android version of Hong Kong's LeaveHomeSafe anti-covid app that users were completely unaware of.
A day later, the outlet was hacked and the email addresses of more than 3,700 subscribers exposed. On June 10, the agency announced: "It is time for us to bid you farewell." It shut down the same day without explanation. It did not mention any financial difficulties.
The death of press freedom
Under the pressure of the National Security Law and the sedition law, two major independent media organisations that had always supported democracy, and that had significant readerships, collapsed one after the other. At least 10 smaller independent media outlets, finding the risks unbearable, also disbanded of their own accord. As a result, investigative reporting and commentaries critical of the government have become so rare as to be almost non-existent.
A year later, only a handful of independent media outlets remain. They cannot help but have misgivings in their search for a space to operate between political red lines. Some remain committed to the ideal of journalism as a watchdog of the powers that be. But even they must now consider things they formerly condemned – such as self-censorship, avoiding sensitive topics or mainstreaming trivial stories – as part of their survival toolkit. In this dire situation, if press freedom is not yet certified dead, at least its death knell has been sounded loudly.