ARTICLE 19 and The Hong Kong Journalists Association
intercepted or blocked, or disclosed to the government or to a public officer, at any time before, during or after transmission.
The definition of "message" seems broad enough to cover virtually any type of information transmitted by telecommunication, including news material, much of which today is generated and transmitted electronically, or by radio wave. In this respect, such a provision seems dangerously open to permitting censorship on political grounds. This would seem to be reinforced by Section 28 which stipulates that anyone who knowingly transmits a "false message" commits an offence: the tenor of the phrase recalls the controversy over the "false news" provision of the Public Order Ordinance, until its repeal. A broadcaster transmitting a false message could face up to two years in prison.
The government's Legal Department had indicated in its confidential report to the legislature's ad hoc group studying the review of legislation that the provision on the transmission and interception of messages might be inconsistent with the right to privacy under Article 14 of the Bill of Rights. The report did not indicate any areas in the Telecommunication Ordinance as being inconsistent with freedom of expression. However, it was reported in May 1992 that the government is to review Section 33 with a view to its consistency with the Bill of Rights.
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4.5 FILM CENSORSHIP
The Film Censorship Ordinance, under Section 10(2)(c), instructs the Film Censorship Authority (which is a delegated arm of the Television and Entertainment Licensing Authority) to consider, during its appraisal of a film, "whether there is a likelihood that the exhibition of the film would seriously damage relations with other territories". If the Authority concludes that this is the case it is empowered under Subsection 4 to refuse approval for exhibition or censor parts of the film deemed to be offensive. In arriving at such a decision, Subsection 3(d) directs the Authority to "take into account" Article 19 of the ICCPR; however, it is not a binding legal requirement that the Authority's decision is consistent with the Covenant, only that it should consider Article 19. Ironically, the provision permitting censorship on the political grounds that a film may "seriously damage good relations with, other territories" is itself a clear violation of Article 19 and by extension Article 16 of the Bill of Rights.
The government had pushed this controversial Ordinance through the Legislative Council in 1988, on the basis of its built-in majority, rejecting criticisms that this provision was in breach of the ICCPR and would erode freedom of expression in Hong Kong at the critical juncture of its transition to Chinese rule. The hasty passage of the legislation was prompted by the need to give legal power to censor films believed to be prejudicial to "relations with other
27 "Wire-tapping powers to be pulled back", South China Morning Post, 26 May 1992. The government was reported as saying that it "rarely" sanctioned the tapping of telephones, and only through the police and the International Commission Against Corruption. Separate reliable sources, however, have said that wire-tapping by the Special Branch, the internal security organ, on political grounds has been commonplace.
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