UpdateCommercial Radio agrees not to contest HKU gagging order – but other media could launch challenge to protect press freedom

Commercial Radio has agreed to be bound by an agreement with the University of Hong Kong not to publish any more information about the HKU council. This means the radio station agrees not to air previously leaked audio clips of council meetings, and also not to air any more information about future council business. This undertaking does not, however, affect other media – named as “persons unknown” in the original injunction order. The impact on press freedom will remain to be argued in tomorrow’s hearing – if anyone will join the litigation as an interested party. High Court judge Godfrey Lam Wan-ho expressed concern at the scope of the ban on future publication. “My concern is that you are now seeking a perpetual injunction on all meetings, future, past, and present,” Lam told HKU counsel Clifford Smith SC in a hearing this morning. “I can see it’s a little unusual.” Lam cited the British case Attorney-General v Times Newspapers Ltd, noting that the House of Lords declined to grant a part of the injunction that would ban publication of memoirs of any officers of the security service. But since the radio station is not contesting the conditions, the court will leave it to any possible interested parties to argue against this point, Lam said. So far three people have indicated to HKU they might contest, but no formal application has been made yet, according to solicitor for HKU Brian Gilchrist. After the hearing, counsel for Commercial Radio Mike Lui insisted his client was “not backing down”. “We are still upholding press freedom. The client has already served public interest by airing the clips so that the public are not misled over the issue,” Lui said. Commercial Radio's withdrawal could mean the injunction on it - and also on other media organisations - could "last forever", lawyers said, if no other party joined the litigation and if the court did not change its order. Two sources with knowledge of the matter earlier told the South China Morning Post that the radio station, which earlier vowed to protect press freedom, told HKU in writing yesterday that it would not attend the court hearing set for tomorrow. READ MORE: 'Utmost stupidity': Academics blast HKU over Commercial Radio court order for leaked recording "The management think they should not spend time and resources contesting the order," one of the sources said. "Having aired two leaked audio clips of the council meetings, the station considers it has served the purpose of informing the public." The Journalists Association would decide today whether to join the lawsuit as an interested party, chairwoman Sham Yee-lan said. "The scope of the court order is too broad," Sham said. "The court has the duty to clarify what it means and how it will strike a balance between protecting the HKU council's confidentiality and public interest in HKU matters." Last Friday, HKU obtained an interim injunction to ban the radio station and "persons unknown" from publishing information about its business, including papers and audio recordings of its meetings. The radio station aired two audio clips from a council discussion during a closed-door meeting in September. After that meeting, council chairman Dr Leong Che-hung said the council had voted down the appointment of pro-democracy scholar Professor Johannes Chan Man-mun to a senior managerial post, but he declined to explain why. Barrister Ronny Tong Ka-wah SC said he was "disappointed" at the radio station's decision. If no party was joining the case, the injunction would "last forever" and "it will be very bad for press freedom", he said. The media would still be able to report council records already in the public domain, but they could be accused of contempt of court if they reported confidential information provided by council members on an off-the-record basis, Tong added. HKU principal law lecturer Eric Cheung Tat-ming said the court should treat the Journalists Association the same as the radio station if it decided to join the case, because other media would face similar consequences if the order continued to be in effect. “No one would know how political considerations – like licence renewal – came into play [in the radio station’s decision],” Cheung said. Meanwhile, eight professors have submitted bids to contest three staff vacancies on the HKU council. Additional reporting by Ng Kang-chung