TNAG-1691-FCO40-2341-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 170

Government's legal advisers do not suggest that these measures have been tested for their compatibility with the guarantees of freedom of expression in the national constitutions of the States

concerned.

Discrimination and Article 26

20. In my view, it is strongly arguable that the legislation suffers from a further vice, namely, that it is discriminatory or authorises discrimination, in breach of Article 26 of the ICPR. Article 26 provides that

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"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as

political or other opinion .... The film industry and its audience have been uniquely singled out for this form of censorship. It does not apply to theatres, video recordings, broadcasting, newspapers, or to speeches made at public meetings. The film industry alone is subject to a form of censorship which (a) involves no showing of any breach of the criminal or civil law, (b) is based upon a standardless "good relations" test, and (c) enables the censor to discriminate between different members of the film industry on the basis of the content of the message contained in films and whether the public communication of that content is believed to be seriously prejudicial to good relations with the People's Republic (or elsewhere). There is therefore a double discrimination : (1) as between members of the film industry and public communicators using other media, and (2) as between members of the film

industry the content of whose films is believed to be

sufficiently objectionable to the public authorities of the People's Republic to be seriously prejudicial to good relations, and other members of the film industry. Unless the Government could show that these differences of treatment had an objective and reasonable justification, they could not pass muster under Article 26. Certainly, they could not conceivably pass muster under American constitutional law : see e.g., Regan v Time, Inc.,

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