Stalking law should protect legitimate journalism, activism, consultants say

Consultants say proposed measure should exempt newsgathering and campaigning, an idea at odds with government's approach

PUBLISHED : Wednesday, 11 December, 2013, 5:25am
UPDATED : Wednesday, 11 December, 2013, 4:58pm

Journalists and campaigners should be specifically exempted from both criminal and civil liabilities under the proposed law against stalking, a government consultancy report has recommended.

The stance contrasts with the approach taken by the Law Reform Commission and the government, which focuses on possible legal defences when the public interest may be more important than the privacy of Hongkongers.

"Any new criminal or civil liability based on the stalking of another person should exempt legitimate activities such as newsgathering activities and expressive activities concerning public affairs," stated the report by the University of Hong Kong's centre for comparative and public law.

The Constitutional and Mainland Affairs Bureau acknowledged in a paper to the Legislative Council yesterday that the latest advice "differed" from that of the Law Reform Commission, which had suggested a "reasonable pursuit" defence and defence for conduct pursued for the purpose of preventing or detecting crime.

The HKU report, which was commissioned by the Constitutional and Mainland Affairs Bureau, criticises that idea, saying "it leaves the legal position too uncertain".

The report adds that the United Kingdom's equivalent law has similar defence provisions which have been used against the media and demonstrators, and have "arguably not provided them with sufficient protection".

Hong Kong's consultation process on the proposed law, which ended last year, showed "strong concerns" about such rights being eroded, the bureau noted.

The HKU report also came up with a list of acts that it said would amount to stalking.

Doreen Weisenhaus, a professor of media law at HKU, said the exemption plan in the report was a good idea, but questioned how it defined journalists.

"It is troubling that it only includes individuals who work under contract for a media organisation. It seems to exclude legitimate journalistic activities by online journalists who may be bloggers working for themselves," she said.

Social activist Icarus Wong Ho-yin expressed concerns too. "After all, the police have made creative use of laws ranging from traffic control and waste disposal to entertainment licences in the arrests of protesters," said Wong, of the Civil Human Rights Front, organiser of the annual July 1 march.

Ken Lui Tsz-lok, of the Journalists Association, cast doubt on whether investigative journalism would also fall under "legitimate" newsgathering. Lui said there should be a broader exemption, with the industry left to regulate itself.

The bureau said it had no preconceived view at this stage and would seek lawmakers' views.