Protest song ban an extreme step with far-reaching implications

If the national security law is not a sufficient deterrent, it is doubtful the threat of civil contempt proceedings will have offenders quivering

During Hong Kong’s civil unrest in September 2019, anti-government demonstrators gathered at shopping malls and sang a new song which became the movement’s anthem. The “singing protest” was peaceful, in contrast to the violent clashes with police which had become familiar.

Order has long since been restored, with the protests fizzling out in 2020 amid the pandemic and the passing of a new national security law. But the protest song “Glory to Hong Kong” remains widely available on digital platforms. It has often been wrongly described as the city’s “national anthem” and even inadvertently played at international sports events.

It is easy to understand the government’s frustration. But the securing of a sweeping court injunction banning illegal use of “Glory to Hong Kong” is an extreme step with far-reaching implications.

The government failed to persuade a court to impose the injunction last year, when Court of First Instance judge, Anthony Chan Kin-keung, expressed concerns about its potential impact.

He doubted the civil law injunction would achieve its aim and said it would conflict with criminal legislation. The judge feared innocent people would be deterred from lawful use of the song and that legal safeguards would be sidestepped. These are important issues.

The Court of Appeal overturned that decision last week and granted the injunction. New legal ground has been broken. The appeal judges found the ban necessary to help the criminal legal system safeguard national security by prohibiting use of the song in certain circumstances. It is not easy to follow the logic of the ruling. The decision hinges on a belief that existing criminal laws are not a sufficient deterrent. The court said “prosecutions alone are clearly not adequate”.

But will the injunction make any difference? If the national security law, with its potential life sentences, is not a sufficient deterrent, will the threat of civil contempt proceedings have offenders quivering? I doubt it.

The key probably lies in the court’s brief reference to the perceived willingness of internet service providers to comply with a court order. There is a hope the injunction will persuade platforms hosting “Glory to Hong Kong” content to remove it. We will see. Those based overseas are likely to face criticism at home if perceived to be censoring online content.

There is also doubt about precisely what is permitted. The court accepted a “chilling effect” may arise. Lawful use of the song is allowed. But it has been suggested merely humming the tune in public or having it as your ringtone might be a breach. This risks making Hong Kong look ridiculous.

The court said it must show “great deference” to government decisions on national security. It did not, however, roll over. The judges preserved the power of the judiciary to consider legal issues that arise.

They said the terms of any injunction must be clear and it cannot encroach disproportionately on human rights. Open justice and fair trial rights will be preserved. The judges pledged the courts would guard against any unfairness, such as an offender being punished twice for the same act. This offers some reassurance.

The US State Department has suggested the ban on the song is a fresh blow to Hong Kong’s reputation for having an independent judiciary. This overlooks the fact that Mr Justice Chan had earlier flatly refused the government’s application. It is also worth noting the care taken by the Court of Appeal judges in providing reasons for its decision and its preservation of the court’s role. Not every decision in favour of the authorities suggests a lack of independence.

But the government’s securing of an unprecedented injunction has made the wrong sort of international headlines at a time when the city is seeking to shift the focus from national security to improving the economy. And the prevalence of the song online has not prevented Hong Kong restoring order.

Whether the injunction will rid the internet of “Glory to Hong Kong” remains very much in doubt, as does the question of whether this exceptional step was worth taking.

It has been suggested merely humming the tune in public or having it as your ringtone might be a breach