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Cliff Buddle
SCMP Columnist
My Take
by Cliff Buddle
My Take
by Cliff Buddle

Proposed doxxing law another case of legal overreach

  • While the malevolent posting of personal details must be prevented, there is a need for balance. It is also time for laws that make legitimate access to information easier

The government’s bid to tackle perceived problems arising from the civil unrest in Hong Kong two years ago is changing the legal landscape and raising concerns about restrictions on free speech.

Few would question the need to combat doxxing, the malevolent posting of people’s personal details on digital platforms. But the proposed changes to data privacy laws intended to curb this menace are broad and come with heavy penalties. It is another case of legal overreach.

Cases of doxxing surged during the anti-government protests of 2019. Police officers and their families were the prime targets, but so were demonstrators, journalists, judges and others. There were culprits on both sides of the political divide. Victims were often harassed and threatened. This had a chilling effect on free speech as people refrained from expressing their opinions for fear of being doxxed.

It quickly became clear the city’s privacy laws were not well-equipped to tackle the problem. The courts granted injunctions in an attempt to fill the gap. The Department of Justice has shown, however, that existing laws can be stretched to cover doxxing, with more than 60 people arrested and some jailed.

The doxxing bill creates two new crimes. The less serious one, carrying up to two years jail, is that of disclosing personal data without the data subject’s consent. The offender must either intend to cause certain types of harm to the victim or their family or be reckless as to that happening.

The bill provides a comprehensive list of specified types of harm. The terms are broad and open to interpretation. They include harassment, molestation, pestering, threat, intimidation, bodily or psychological harm, damage to property or causing the victim to be concerned for their well-being.

A more serious crime, where the disclosure of details actually causes harm to the victim or a family member, can result in five years jail or a fine of HK$1 million (US$128,737).

These amendments greatly widen the scope of the existing law. The government says it drew on similar legislation overseas. It should explain why it has not opted for the New Zealand model which defines the offence in much narrower terms.

The new law will empower the privacy commissioner to investigate and prosecute doxxing cases and order that offending material be removed from platforms. This even applies to service providers overseas.

Critics have highlighted the sweeping nature of the law and the danger that innocent people may be caught by it. There have even been suggestions tech giants such as Google, Facebook and Twitter will quit Hong Kong. The government has sought to allay such fears.

There is a need for revisions to be made during the legislative process to narrow the law and ensure the restrictions it imposes on free expression are minimal.

It is good to see that news activity in the public interest remains a defence. This should offer some reassurance to the media. The defence has, however, been tweaked to require that disclosures be solely for lawful news purposes. It remains to be seen what, if any, impact this will have.

It is to be hoped that once the new doxxing laws are in place, the government will have the confidence to release information to journalists and others who seek it in the public interest, rather than using privacy as an excuse for denying access.

The Ombudsman highlighted the need for a freedom of information law in Hong Kong in 2014. The Law Reform Commission set up sub committees to work on this and a much-needed archives law the previous year. It issued consultation papers on both in 2018. We are still waiting.

The government’s new enthusiasm for lawmaking is slowing the free flow of information, so important to Hong Kong’s way of life. Doxxing must be prevented. But there is also a need for balance. It is time for long-awaited efforts to fill that other legal vacuum – the absence of laws that make access to information easier.

This article appeared in the South China Morning Post print edition as: Proposed doxxing law another case of legal overreach
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