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Thursday, Oct 29, 2020

Hong Kong’s ban on posting online material inciting violence will be tough to enforce, while protesters brainstorm ideas to avoid being caught

Reactions from legal experts and lawmakers are mixed a day after court grants order amid months-long protest crisis. Exco member Ronny Tong says enforcement would be problematic because of user identification challenges and sites hosted overseas
The Hong Kong justice department’s latest move to ban the incitement of violence online by seeking a court order could be hampered by complicated procedures to track down perpetrators, including those who post on websites hosted overseas, legal experts have said.

But some believed the injunction was needed as the authorities had to “make it clear” that people must be responsible for their speech online. Others dismissed the court order as a token gesture by the government to show it was acting tough.

A day after authorities were granted the new weapon to combat increasingly violent protests, internet users were also undeterred, brainstorming ways to circumvent it.

“I can say I am dreaming. Or I will tell people ‘not to’ do it. Bite me,” one user wrote on LIHKG, a Reddit-like internet forum protesters often use to organise campaigns.

On Thursday, Hong Kong’s High Court granted an injunction order to the Department of Justice’s request to restrain people from “wilfully disseminating, circulating, publishing or republishing” any material online that promotes or incites the use or threat of violence.

The order defined violent acts as those which would cause unlawful bodily injury to a person and damage to property. It remains in place until November 15 for another review.

It referred specifically to LIHKG and messaging app Telegram, the two platforms often used by Hong Kong protesters to organise their actions, although the order covers the internet as a whole.

Barrister Ronny Tong Ka-wah SC said he believed while the order would serve to cover gaps in existing laws, its enforcement would be problematic.

He said as most people did not use their real identities under their registered online accounts, the authorities would face great difficulty in trying to pin down culprits.

“You can only write letters to the service providers,” he said.

But the problem with Telegram, a company founded by Russian brothers Pavel and Nikolai Durov in 2013, was that it was based in Dubai, Tong said.

He said unless Hong Kong had a mutual legal assistance agreement with Dubai, it would not be able to ask the courts there to help.

While LIHKG was Hong Kong-based, a legal action would have to be filed to ascertain users’ details if the forum refused to give in. “Then it is up for the court to decide,” Tong said.

But the barrister, who also serves as a member of the Executive Council – which advises the city’s leader – warned the injunction covered service providers and administrators of group chats, not just those who post content deemed offensive.

LIHKG issued a statement on Wednesday, saying it had yet to be contacted by the authorities. Telegram’s website said it did not take down “illegal content” because it was considered a group chat among participants.

Both LIHKG and Telegram did not respond to the Post’s request for comment.

Lawyer Daniel Wong Kwok-tung said given the enforcement problems, “the authorities are only creating a sense of white terror so that people [dare not do the banned acts].”

Barrister Anson Wong Yu-yat questioned the need for an injunction order as the acts were already covered by existing laws. He said, for example, if one were to incite another person to attack a police officer, the person could be charged with incitement.

University of Hong Kong law scholar Simon Young Ngau-man said an incitement offence could be cited even if the crime was done publicly but not to a particular person, meaning it would be applicable to the internet. But pro-establishment lawmaker Priscilla Leung Mei-fun, who is also a barrister, said not everyone was aware they could be held responsible for their words online, so this was to make it clear.

Assistant communications professor Tsui Lok-man from Chinese University also questioned the hasty manner in which the injunction was devised, compared to how other countries came up with hate speech laws. Citing Germany’s experience, he said the laws there were “put in place through a formal legal process, within a democratic system, with consultation and discussion with civil society, with a government that is ultimately accountable to the public”.

“That is very different from how the Hong Kong government is doing it now,” he said.

On LIHKG and Telegram, calls for vandalism or arson attacks are posted frequently. Since the ban came into effect on Thursday, users suggested they should stick to code words to circumvent the injunction. But Wong said the court could still glean the intent of such words as long as they were satisfied with the evidence provided to them. “For example, the common one would be ‘decoration’,” he said. Protesters often use the word to refer to calls to vandalise a certain place.

Tsui said the court order was also plagued by vagueness, which could hamper free speech.

“For example, it is unclear what counts as ‘republishing’ especially in today’s age with social media. Is a retweet or a sharing of a post the same as republishing?” he said.

Bosco, 16, a frontline protester, asked how authorities could execute such a ban on Telegram to start with.

“Unless they block the whole network … no one actually cares,” he said.

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