TNAG-1691-FCO40-2341-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 165

"public order" in Article 19 paragraph 3b. I agree with paragraph 5 of Mr. Barendt's Opinion that the French concept of "ordre

public" is wider than the protection of public order in the

narrow physical sense. I doubt whether the concept is wide enough

to cover good relations between different territories or

countries. However, I agree that the Government would be able to

argue, with some persuasive force, that the situation of Hong Kong and its unique relationship with the People's Republic of

China, makes the concept of "ordre public" somewhat broader in

Hong Kong than in other territories or countries. On the other hand, the exercise of the powers of censorship on the massively wide basis described in the previous paragraph would, in my opinion, fall outside even the most generous interpretation of the ordre public of Hong Kong. The same applies to the reference,

in Article 19 paragraph 3b, to "the protection of national

security". I therefore conclude that the legislation authorises

restraints upon the right to free expression which would not

pursue any legitimate aim within the scope

of Article 19

paragraph 3, and which would, if imposed by the censor, therefore

be in breach of Article 19 read as a whole.

Principles governing the Necessity Test

15. The final question under Article 19 paragraph 3 is whether restrictions imposed by the censor are "necessary" in terms of

Article 19 paragraph 3, for the protection of an aim or goal stated in that provision. It is again difficult to answer this

question in the abstract, since So much depends upon the

particular manner in which the powers of censorship are

exercised, and all the surrounding circumstances. The European Court has enunciated a number of important general principles, in the context of the right to freedom of expression and interferences with that right by public authorities, which are relevant to the interpretation of the

the test of necessity in

Article 19 paragraph 3. I will summarise them as follows:

(1) Subject to the exception clause, the right to free

expression is applicable "not only to information or ideas

that are favourably received or regarded as inoffensive or

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