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5.
However, it is considered that there is a need to retain in law a provision that deals with the publication of false news which is likely to alarm public opinion or disturb public order. This offence is now retained in the Public Order Ordinance. A similar offence, in a more restrictive form, used to be in the Control of Publications (Consolidation) Ordinance, but it has been used most sparingly and not at all since 1967. This track record shows that this law is enforced with care and prudence.
6.
At the time the two bills were made public, there was general public support. They were perceived as a liberalisation of press laws and helpful in preserving press freedom and freedom of expression. However, the Hong Kong Journalists' Association (HKJA) expressed concern over the retention of the section on publication of false news and called for its repeal.
Offence of Publication of False News
7.
To establish the offence of publication of false news, in the first instance the prosecution has to prove beyond reasonable doubt:
8.
(a)
that there was a publication of news;
(b) that the news was false;
(c)
that the news was likely to alarm public opinion or to disturb public order.
If the above is proved, the accused publisher can show in defence that at the time of publication he had reasonable grounds believing that the news was true. To be acquitted, the defendant only has to establish his defence on a balance of probabilities i.e. a burden which is lighter than that of the prosecution referred to in para. 7 above.
9.
Some have suggested that while the present Hong Kong Government would not abuse this provision to inhibit the freedom of expression, a future government could invoke this law in a repressive and authoritarian manner. This argument, however, is difficult to follow on three grounds.
10. Firstly, if the rule of law is to continue to apply the considerable burden of proof which lies with the prosecution will certainly inhibit its use as a repressive measure against the freedom of the press.
11.
Secondly, the absence of any law which makes the dissemination of false news an offence would not in itself guarantee that there would be total press freedom. Indeed a better safeguard would be to build a system with checks and balances so as to ensure that powers were not abused.