TNAG-1689-FCO40-2339-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 23

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2. WHETHER OR NOT A RESTRICTION ON THE RIGHT TO FREEDOM

OF EXPRESSION FALLS WITHIN THE EXCEPTIONS PERMITTED BY

ARTICLE 19.3 OF THE CONVENTION DEPENDS NOT ONLY ON THE

AUTHORITY BY WHICH IT IS IMPOSED, BUT ON THE PURPOSE FOR

WHICH AND THE CIRCUMSTANCES IN WHICH IT IS APPLIED. THE

FORMULATIONS UNDER CONSIDERATION ARE

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(A) (OPEN SQUARE BRACKETS) SET OUT IN THE FORM OF A

CONTINUOUS SENTENCE WITH DOTS AS NECESSARY (CLOSE SQUARE BRACKETS) (THE CURRENT GUIDELINES), AND (B) (OPEN SQUARE BRACKETS) SET OUT IN THE FORM OF A

CONTINUOUS SENTENCE IF NECESSARY WITH DOTS (CLOSE

SQUARE BRACKETS) (THE PROPOSED LEGISLATION).

THESE ARE POWERS, NOT RULES OF LAW AND THEY ARE NOT OF THEMSELVES INCONSISTENT WITH ARTICLE 19.2. WHETHER THEIR

EXERCISE IS CONSISTENT WITH ARTICLE 19.2 WILL DEPEND

UPON :

(I). WHETHER THE POWER IS EXERCISED BECAUSE IT IS NECESSARY TO DO SO, (NEXT TWO WORDS UNDERLINED) INTER ALIA

(I) QUOTE FOR RESPECT OF THE RIGHTS OR REPUTATIONS OF OTHERS UNQUOTE, WHICH MAY BE RELEVANT IN THE CASE OF FILMS ATTACKING PUBLIC (OR PRIVATE) FIGURES IN ANOTHER

COUNTRY.

(II) QUOTE FOR THE PROTECTION OF NATIONAL SECURITY UNQUOTE WHICH MAY BE INTERPRETED AS COVERING THE SECURITY

OF HONG KONG WHICH MAY BE EXPOSED TO EITHER EXTERNAL OR

EXTERNALLY INSPIRED THREAT,

PUBLIC ORDER

(III) QUOTE FOR THE PROTECTION OF UNQUOTE WHICH WOULD ALSO BE RELEVANT IF THERE WERE REASON

TO SUSPECT THAT A PARTICULAR FILM COULD LEAD TO PUBLIC

DISTURBANCES OR PUBLIC DISAFFECTION ON THE PART OF LOCAL

PUBLIC OFFICIALS, AND

(II). THE PARTICULAR CIRCUMSTANCES OF THE CASE.

3. IN APPLYING THE TESTS AT I (II) AND (III) ABOVE, THE JURISPRUDENCE OF THE COMMITTEE ESTABLISHED UNDER THE COVENANT, LIKE THAT OF THE EUROPEAN COURT OF HUMAN RIGHTS UNDER THE EUROPEAN CONVENTION, RECOGNISES THAT THE

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