On February 24, a Hong Kong court returned a government request for an injunction banning the circulation of the protest anthem “Glory to Hong Kong,” which has been deemed a threat to national security. The court has asked the Department of Justice to provide further clarity on the scope and possible exemptions for lawful behavior such as journalistic or academic work. The government has until March 11 to resubmit an amended injunction request, with a ruling expected by mid-July.
The present injunction seeks to label 32 versions of the song on YouTube as illegal. Last year, Google, which owns YouTube, said it needed evidence the song violated local laws. The injunction presented Saturday added this specificity over the original injunction, which broadly applied to all internet intermediaries.
The Hong Kong government’s latest injunction request is emblematic of ongoing attempts to chip away at any remaining internet freedom under current and proposed national security legislation.
The court is likely holding off a formal decision on the injunction until Article 23 of the Basic Law comes into force, further supercharging censorship powers over vague security crimes.
That streaming a pro-democracy song could be treated as sedition stems from the Beijing-imposed 2020 National Security Law (NSL), which introduced vague and overly broad crimes of secession, subversion, terrorism, and collusion with foreign forces. These crimes are now being expanded into seven offenses under recent plans to introduce additional security regulations under Article 23. The pseudo-public consultation period on the bill ended this week; it will almost certainly be adopted, and must be opposed.
Global tech companies should speak out immediately against attempts to control internet intermediaries and broader efforts to use national security laws as a pretext for censorship and surveillance in Hong Kong.
“Glory to Hong Kong”: A Canary in the Coal Mine of Hong Kong’s Internet
In December 2022, Hong Kong’s Security Secretary Chris Tang said the government would press Google to “correct” its search algorithm results for “Glory to Hong Kong,” which appeared at the top of search results for “Hong Kong national anthem.” The comments followed several instances of the song being played at international sporting events instead of the Chinese National Anthem.
The same month, Hong Kong’s Chief Executive John Lee reiterated that the government aimed to pressure Google to alter its search results. Google refused.
In early June 2023, the Hong Kong government sought a court order to prohibit anyone from circulating the song “in any way,” arguing that the song is often used with secessionist or seditionist intent or in violation of the National Anthem Law, among other crimes. The injunction would apply to “any internet-based platform or medium” and its global operations.
On July 28, the Hong Kong High Court rejected the government’s request, remarking that such an injunction could have a chilling effect. Meanwhile, the presiding judge left the door open to further censorship.
He noted that he would have granted the injunction on national security grounds, but doing so would have conflicted with the National Security Law. The acts outlined in the injunction, the judge explained, are already punishable under the NSL, suggesting the government could simply indict global tech companies under the security law.
The government appealed in August, following pressure from pro-Beijing lawmakers. They argued, inter alia, that “the restriction imposed on freedom of expression is no more than necessary to safeguard national security and would not result in an unacceptably harsh burden on the individual” and that the court should consider whether the injunction “would actually provide greater deterrence than what the criminal law already imposes.”
The DOJ’s argument – that despite the risk of criminal penalty already found in the NSL people are still downloading, playing, or sharing the song – raises alarms at further potential sanctions for those activities, which may be criminalized under the NSL and Article 23. Such sanctions go directly against international human rights law and internet freedom norms, such as the Manila Principles on Intermediary Liability.
We are witnessing in real time the Hong Kong authorities’ scramble to fill in what little holes remain in the otherwise total control under the NSL. The imminent expansion under Article 23 of the Basic Law will move Hong Kong a step closer toward Beijing-style internet governance.
This is about more than just one song and one internet search provider. “Glory to Hong Kong” is a canary in the coal mine. The authorities are seeking to hold internet intermediaries in Hong Kong under the same yoke imposed upon companies doing business in mainland China. We have already seen the concessions forced upon the likes of Apple and Microsoft in the mainland.
Despite mounting concerns, global tech companies have remained silent about the injunction, even though it’s the companies that are being directly and arbitrarily targeted. They have also stayed quiet with regards to the Article 23 consultation, despite the fact that the proposed changes directly impact the freedom of expression, information, and right to privacy on their platforms.
This needs to change.
If individual companies feel insecure in speaking out publicly against Hong Kong and China, they could do so as part of coalitions such as the Asia Internet Coalition or the Global Network Initiative.
The global tech companies operating in Hong Kong have missed their opportunity to legally challenge the injunction as parties to the case, but they can still speak out publicly. They should also seize future opportunities to legally challenge attempts to intimidate them into complicity with the assault on internet freedom in the name of national security in Hong Kong.
Beyond the injunction, tech companies, investors, and the private sector at large should re-evaluate the risks of operating in Hong Kong. One way to do that would be to revisit their human rights impact assessments, including the impact of ongoing operations and potential for responsible or strategic exit.
In light of Hong Kong’s claim of extraterritoriality in national security affairs, global tech companies must further take into account how the changing legal environment in Hong Kong may expose them to legal penalty for failure to act on global censorship demands, and the concerns this raises for internet freedom around the world.
Global tech companies operating in Hong Kong also have a duty of care for their employees, users, and other affiliated actors. And, as Hong Kong increasingly adopts tactics of transnational repression, this means greater global responsibility for tech companies to prevent not only censorship but also surveillance and other forms of digital repression on their platforms.
Failing to calculate and mitigate rising concerns now risks far greater vulnerability in the future. With each move taken by Hong Kong authorities toward Beijing-style authoritarian internet governance, the companies’ failure to act increases the likelihood of their complicity in future restrictions on internet freedom.