Hong Kong's High Court adjourned to July 21 an injunction hearing on the government’s request to ban the distribution of the protest anthem “Glory to Hong Kong.”
Judge Wilson Chan Ka-shun asked the Department of Justice (DoJ) to clarify the definition of the defendant in a hearing of the government's injunction application on June 12.
While the DoJ stressed in the court that the injunctions did not intend to target “the world at large,” the scope of the prohibition application is extensive and vague. In the DoJ’s writ, the defendant is written as “persons conducting themselves in any of the acts prohibited under paragraph 1(a), (b), (c) or (d) of the indorsement of claim.”
The indorsement of claim cites the National Security Law (NSL), Sedition Law and National Anthem Ordinance as the legal base for the injunctions, which seek to restrain anyone from broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying, or reproducing the protest song in any media form, including on the internet (a) with inciting secession or sedition intentions; and (b) to mislead others into taking the song as Hong Kong’s national anthem or to insult the national anthem.
Moreover, the claim also covers acts that (c) assist, cause, procure, incite, aid, abet others, or (d) knowingly authorise, permit or allow others to commit the prohibited acts are also covered by the injunction order.
Who will defend against the injunction application?
Since the injunctions sought to restrain everyone in Hong Kong, the judge was concerned about how the DoJ could deliver the legal document to the defendant, thereby postponing the hearing so that the public could prepare for the defence.
The Hong Kong government made a similar injunction attempt during the 2019 protests to prohibit anyone from posting and re-posting any information that promotes violence on online platforms, including LIHKG and Telegram. It also targeted any party who “aids” or “abets” others to commit unlawful acts.
Back then, the Hong Kong Internet Society crowdfunded a judicial review because the injunction would undermine the city’s free flow of information as it anticipated that the government might use the injunction to force online platforms and ISPs to censor and restrict access to websites and applications or request private information of online users who are aiding the dissemination of the content.
In the current case, the high court judge has given more time for the public to prepare for the defence; yet, after years of crackdowns on NGOs and crowdfunding activities, it is unlikely that any remaining civic group can stand up to defend the anthem in the court's hearing.
Who are the defendants? Google or local ISPs?
The question regarding who the defendants are has lingered among concerned citizens since the DoJ filed the injunction.
…the Song has also been mistakenly presented as the “national anthem of Hong Kong” (instead of the correct one “March of the Volunteers”) repeatedly. This has not only insulted the national anthem but also caused serious damage to the country and the HKSAR.
Both the Hong Kong government and pro-Beijing politicians have blamed Google, the major search engine, for “misleading” search results and causing confusion after the tech giant refused to manipulate the search result. Hence, many believe that the injunction is targeting Google.
In 2022, the Hong Kong government requested Google remove 330 content items, among which 57 were related to national security. The company complied with about half of the requests.
Although the lyrics of the protest song “Glory to Hong Kong” contain the slogan “Liberate Hong Kong, Revolution of our time,” which was interpreted as inciting secession given the context of the protest in a court trial, the song is not illegal. The injunctions, once granted, may be cited as legal grounds for content removal requests. In the writ, the DoJ attached a list of 32 YouTube videos, which are different versions of the protest song.
However, whether the Google office in Hong Kong will comply with the injunctions is still a question, as the tech company is registered in the U.S., which is outside the reach of the injunction order's jurisdiction, as pointed out by Tse Lin Chung, a Hong Kong lawyer, on inmediahk.net:
但即使成功強制Google，亦只能限制在香港傳播，不可能要將歌曲下架，下架是意味著禁止全球性播放，而非單衹在香港。要全球下架，特區政府要到美國申請禁制令才行得通[…] 美國法院不可能批出同樣的禁制令。Google在香港有運作，但不負責營運Youtube[…] 法庭不能貿然地把香港員工當作Google總部來懲處，要求香港分公司履行禁制令。
Since Youtube is based in the U.S., the court's summon must deliver to their headquarters in order to ask the companies to attend the hearing.
Even if [the injunction] successfully restrained Google, it would only prohibit its circulation within Hong Kong. The SAR government has to apply an injunction in the U.S.A in order to take down the videos globally […] The U.S. court would not approve such an injunction. As the Google office in Hong Kong is not responsible for the operation of Youtube… the local court could not ask Google staffers to implement the injunction and punish them as if they represented the headquarter.
While the injunction may force Google to block the song locally, it cannot force Google to take down the related videos globally.
Meanwhile, local ISPs are worried that if YouTube or other platforms do not comply with the injunctions once granted by the court, they will have to block these platforms from local access.
As explained by Lento Yip Yuk Fai, chairman of the Hong Kong Internet Service Providers Association, the injunction, once granted, would penalise anyone for “assisting,” “causing,” “aiding,” or “knowingly allowing” others to disseminate the protest song. As data flow on the internet is encrypted, they can’t block local users from accessing specific content. If they are required to comply with the injunction fully, they may have to block entire platforms where different versions of the song are hosted and shared.
ISPs in Hong Kong have blocked local users’ access to certain websites, such as the UK-based Hong Kong Watch, since the NSL was enacted in 2020.
Given that the injunction cannot apply globally, it would not stop the protest song from appearing at the top of the search result when searching “Hong Kong national anthem” on search engines outside Hong Kong — Tse Lin Chung anticipated the injunction would merely ban performances of the song in the streets.
After the protest slogan “Liberate Hong Kong, Revolution of the Times” was ruled as inciting secession in court, singing “Glory to Hong Kong” in street performance has become an invitation for police attention or even arrest without injunctions. On the other hand, the government’s legal gesture has boosted the popularity of the song again, as David Webb, an investor-activist based in Hong Kong, pointed out:
And have they never heard of the Streisand Effect? By repeatedly singling out a song for special attention, they work against attempts to ignore it. 3/x https://t.co/hvNOb66I5t
— Webb-site (@webbhk) June 6, 2023
His prediction of the Streisand Effect is very accurate. For about one week since the DoJ filed the injunction application, “Glory to Hong Kong” had dominated the local iTunes top 10.
“Hongkongers are rushing to download a popular protest anthem after HK’s govt filed for a court injunction to block access to it…“Glory to Hong Kong” topped the local iTunes chart this week despite pro-Beijing politicians warning residents to delete it”https://t.co/bZg1E0Xj4O
— China Beige Book (@ChinaBeigeBook) June 9, 2023
On June 14, the protest anthem vanished from major music streaming sites in Hong Kong, including Spotify and Apple.