June 19, 2020

Hong Kong: how the national security law could be used against journalists

Reporters Without Borders (RSF) looks at how the future national security law imposed by Beijing can be used as a pretext to prosecute journalists in Hong Kong, as is already the case elsewhere in China.

The national security law, being imposed by Beijing in blatant disregard to Hong Kong’s  autonomy, could enter into force through the summer despite widespread public outrage. In a poll published on June 18th, the Hong Kong Journalists Association (HKJA) reported that 98% of journalists oppose the future law, fearing that it would be used against them, as is the case elsewhere in China.

The decision, adopted by China’s National People’s Congress on May 28th, will allow to repress “terrorism”, “secession”, “subversion”, and “foreign interference” in the Hong Kong region. These four crimes, for which no official definitions have yet been provided, can incur charges in the Mainland as severe as the death penalty and are often used as a pretext to prosecute journalists.

"Such regulation would give the Chinese regime the means to harass and punish any journalist they dislike in Hong Kong with the appearance of legality”, says Cédric Alviani, head of RSF’s East Asia bureau. “The vast majority of the 114 journalists currently detained in China are imprisoned under allegations of national security-related crimes."

Four catch-all crimes

1 - “Terrorism”

  • Common Definition. Terrorism usually refers to the unlawful use of violence and intimidation, especially against civilians, in the pursuit of political aims. Beijing’s interpretation of this crime includes any action deemed to threaten the state’s security and often conflates it with other crimes such as “endangering state security”, “leaking state secrets”, and “treason”.
  • Situation in China. At least seven journalists are currently being detained for “leaking state secrets”, including Swedish publisher Gui Minhai, the main shareholder of the Hong Kong bookstore ‘Causeway Bay’, who was kidnapped in Thailand in 2015 and sentenced to 10 years in prison in China last year.
  • Risk for journalists in Hong Kong. Since the Chinese regime and Hong Kong executive commonly refer to the pro-democracy movement as terrorism, reporting at the scene of protests could be prosecutable under the national security law as an act of terrorism. Publishing confidential information regarding Hong Kong or mainland Chinese officials could as well be punished under the offence of “leaking state secrets''.

2 - “Secession”

  • Common Definition. Secession usually refers to the act of a group or region voluntarily breaking away from a state to create a new independent nation or to join another nation. In the mainland, this crime is often conflated with “separatism” (the act of promoting or preparing for secession), and extends to any individual or group promoting regional cultures and languages such as Uighur and Tibetan
  • Situation in China. At least 70 journalists are currently being detained under separatism-related charges as part of Beijing’s crackdown on the Uighur ethnic group in the autonomous region of Xinjiang. Journalist and academic Ilham Tohti, laureate of the Council of Europe’s Václav Havel Prize and the European Parliament’s Sakharov Prize, was sentenced to life imprisonment on charges of “separatism” in 2014.
  • Risk for journalists in Hong Kong. Under the national security law, any journalist writing on Hong Kong’s cultural identity or the pro-independence movement could be charged with “separatism”. It is possible that those charges would have applied to Victor Mallet, Asia news editor for the Financial Times, who was expelled from Hong Kong in 2018 for having served as a moderator at a debate held by the Foreign Correspondents’ Club featuring a pro-independence activist.

3 - “Subversion”

  • Common Definition. Subversion usually refers to the act of undermining institutions or overturning the established order. In the mainland, this crime is often conflated with “sedition” (the act of inciting the population to rebel against the authority of the state), and is also referred to as "picking quarrels and provoking trouble" or “spreading rumours".
  • Situation in China. At least 24 journalists are detained under the charges of  "subversion of state power", "inciting subversion" and "picking quarrels and provoking trouble". Political commentator Wu Gan, who previously denounced the corrupt practices of government officials, was sentenced to eight years in prison for “subversion” in 2017.
  • Risk for journalists in Hong Kong. Under the national security law, journalists who report on pro-independence events or quote pro-independence activists could be charged with “sedition”. The punishment could extend to newspapers that run opinion pieces that criticise the Chinese government or investigative pieces concerning the illegal practices of Chinese officials. The writers of Headliner, a satirical television show recently cut from audiovisual group Radio Television Hong Kong (RTHK) for mocking the police, could also have been charged with this crime.

4 - “Interference of Foreign Powers”

  • Common Definition. Interference of foreign powers can be understood as the visible or hidden intervention of a state in the internal affairs of another state. In the mainland, this crime is often conflated with “infiltration“ (the act of placing agents in a foreign state in order to spy or manipulate its administration) and “espionage” (the practice of using spies to gather intelligence for the benefit of another state).
  • Situation in China. Beijing’s propaganda systematically portrays the foreign media as government agents working to promote the interests of the state where they are headquartered. Since the beginning of this year, 16 journalists working for major US media have been expelled from China in a so-called political retaliation against the American government. Australian writer and journalist Yang Hengjun is also being detained in Beijing on charges of “espionage” since January 2019.
  • Risk for journalists in Hong Kong. Under the national security law, correspondents or employees of foreign media and their sources could be accused of serving foreign powers and be subjected to surveillance, harassment, violence or punishment. In January 2020, Hong Kong chief executive Carrie Lam suggested that some foreign media could be the mouthpiece of Western governments.

The Hong Kong Special Administrative Region of China (HKSAR), once a bastion of press freedom, has fallen from 18th place in 2002 to 80th place in this year’s RSF World Press Freedom Index. China, the world's largest prison of journalists and press freedom advocates, ranks 177th out of 180 countries.