Internet censorship in Hong Kong

Computer crime ordinances

"Section 161: Access to computer with criminal or dishonest intent" of the Crimes Ordinance (Cap 200) which was enacted in 1993 before the widespread use the Internet and the growth of e-commerce generally, provides that it is an offence to obtain access to a computer:

• with an intent to commit an offence;
• with a dishonest intent to deceive;
• with a view to gain for oneself or another;
• or with a dishonest intent to cause loss to another.

Conviction upon indictment of any of these offences carries a maximum punishment of five years.^[5]

Section 27A of the Telecommunications Ordinance (Cap 106) enacted in 2000 provides that "any person who, by telecommunications, knowingly causes a computer to perform any function to obtain unauthorized access to any program or data held in a computer commits an offense and is liable on conviction to a fine of HK$20000".^[6]

Pornography

Pursuant to the Control of Obscene and Indecent Articles Ordinance (Cap 390), it is an offence to publish an obscene article. Publication covers distribution, circulation, selling, hiring, giving, or lending the obscene article. Distribution by e-mail falls within the definition of distribution, as does the placing of an obscene article on a website. Distribution does not require any element of financial gain. The definition includes "anything consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video-tape, disc, or other record of a picture or pictures". An article will be considered obscene if, by reason by its obscenity, "it is not suitable to be published to any person". Obscenity includes "violence, depravity, and repulsiveness". The penalty for this offence is up to three years imprisonment and a fine of up to HK$1,000,000.^[7]

It is an offence to possess, produce, copy, import, or export pornography involving a child under 18 years of age, or to publish or cause to be published any advertisement that conveys or is likely to be understood as conveying the message that any person has published, publishes, or intends to publish any child pornography. The penalty for creation, publication, or advertisement of child pornography is eight years’ imprisonment, while possession carries a penalty of five years’ imprisonment.^[2]

Copyright

The Copyright Ordinance (Chapter 528) provides the legal framework for copyright protection in Hong Kong.^[8] In April 2011 the government introduced the Copyright (Amendments) Bill 2011 that, if passed, will introduce (i) a new technology-neutral exclusive right for copyright owners to communicate their works through any mode of electronic transmission, with criminal sanctions against those who make unauthorised communication of copyright works to the public; (ii) safe harbour provisions for online service providers; and (iii) additional factors to consider by the courts when awarding additional damages for copyright infringement.^[9]

There are complaints that the proposed amendments prohibiting unauthorised use of copyright material in any medium without permission threatens freedom of speech. The bill may negatively affect works of satire or parody on the Internet because there is no "fair-use exception". The government's position is that the amendments strengthen intellectual property rights. Some pan-democratic activists and supporters termed the bill an "Internet Article 23" (a reference to Hong Kong Basic Law Article 23, controversial anti-subversion measures the government proposed in 2002 that led to Hong Kong's largest-ever street demonstrations, the proposed article was withdrawn in September 2003).^[2][10]

Hong Kong national security law

Article 43 of Hong Kong national security law states that platforms, publishers, and internet service providers may be ordered to take down electronic messages published that are "likely to constitute an offence endangering national security or is likely to cause the occurrence of an offence endangering national security". Individuals, organizations, and companies who do not comply with such requests could face fines of up to 100,000 HKD (US$12,903) and put into prison for six months.^[4]

The Hong Kong chief executive may authorize the police to intercept communications and conduct surveillance to “prevent and detect offences endangering national security".^[4]

TikTok

Almost immediately after the implementation of the Hong Kong National Security Law in July 2020, TikTok ceased its operation in Hong Kong and replaced the option for Hong Kong users with Douyin, the strictly censored mainland Chinese version of the app by ByteDance. Users reported issues when using Hong Kong registered SIM cards even though they have connected to a VPN service, which indicates that TikTok used their users' SIM card information to block access from the territory.^[13]

Before 30 June 2020

After 30 June 2020

Article 43 of the Hong Kong national security law, which came into force on 30 June 2020, authorized the police to order "a person who published information or the relevant service provider to delete the information or provide assistance."^[20] (see Hong Kong national security law) Since then, the Hong Kong government has been blocking several anti-government or politically sensitive sites. (see below)

Hong Kong Internet service providers generally block websites in their home broadband and mobile data networks, and most public Wi-Fi networks are also affected. However, most providers do not implement blocking arrangements when offering enterprise networks.