Keywords and ‘made-simple’ Summary of the National Security
Will journalists be charged with unlawful disclosure非法披露 under the proposed national security law if they report the outbreak of Severe Acute Respiratory Syndrome disease on the mainland well before official announcement? Hong Kong officials answered no, saying that information was not related to national security. But such an assurance seems to have failed to dispel worries from media.
At present, the Official Secrets Ordinance 官方機密條例 largely fulfills the obligation to legislate against the theft of state secrets. The proposed national security law seeks to amend the Ordinance to provide that it is an offence to make a damaging disclosure of protected information which has been obtained through illegal access.
“Illegal access” will be limited to mean criminal acts of unauthorised access to computer by telecommunication, access to computer with criminal or dishonest intent, theft, robbery, burglary or bribery.
A new section will also be added to protect information relating to affairs concerning the HKSAR for which the central authorities are responsible under the Basic Law. In addition, disclosure of such information will be penalised when it endangers “national security”, which is defined as “the safeguarding of territorial integrity and the independence of the People’s Republic of China”.
There are concerns whether the new law will comply with the Johannesburg Principles. Principle 15 of the Johannesburg Principles states that no person may be punished on national security grounds for disclosure of information if the disclosure does not actually harm, and is not likely to harm, a legitimate national security interest.
The government believes the proposed law will comply with that. However, Principle 15 also provides that no person may be punished on national security grounds for disclosure of information if the public interest 公眾利益 in knowing the information outweighs the harm from disclosure. This part is not consistent with our proposed law, which does not include the “public interest defence”.
The government rejected calls for adding “public interest” as defence, saying HK’s law in this area is based on legislation enacted in the UK in 1989, which does not include such a defence. The government emphasised the proposed law will be interpreted, applied and enforced in a manner that is consistent with the Basic Law.
Note: Credit is due to the Hon Bernard Chan for sharing these information with me.