Three-tier system can manage external threats to national security

Promulgation of the National Security Law for Hong Kong (NSL) in 2020 and the overhaul of the city’s electoral system in 2021 have effectively kept the political agitators at bay. Many of the anti-China individuals in Hong Kong have been arrested, with some pending justice remaining, while a sizable portion of those who absconded abroad still endeavor to jeopardize China’s security.

Back in 2021, in the run-up to the Legislative Council election, some individuals who were barred from participating in the election under the principle of “patriots administering Hong Kong” launched a campaign to incite voters to boycott the election or cast a blank vote, intending to weaken the legitimacy of the election, and thereby the governing institutions of the Hong Kong Special Administrative Region. The HKSAR government responded by amending the Elections (Corrupt and Illegal Conduct) Ordinance to regulate acts that manipulate or sabotage elections. The amendment prevented many individuals from disseminating such information. However, it was apparent that posts that can manipulate or sabotage the election were still circulating freely on social media platforms. With closer examination of the material, many of the individuals who were most influential in raising that proposition on Facebook had already absconded abroad. In addition, an overseas newspaper published an article in November 2021, less than one month before the polling day, attempting to misguide Hong Kong voters into not voting or casting blank votes.

The role of shaping public opinion to jeopardize national security has predominantly been passed to foreign entities beyond Hong Kong’s jurisdiction. The primary efforts in mitigating the impact of foreign entities on domestic public opinion should concentrate on curbing local transmission of illegal information instigated from aboard. This should help cut down the network of harmful material.

Today we live in an age in which the circulation of information goes beyond physical geographic barriers. Since we share a common online space, and once material is disseminated on social media platforms, it generates a comparable impact, regardless of the origin of the message. Local agencies do not possess law enforcement power on foreign soil; however, the HKSAR government can command its own jurisdiction. I hereby propose a “three-tier system” to manage forces manipulating wrongful public opinion from aboard. It would consist of the following: Tier one, “detective and preventive”; tier two, “mitigation directives”; and tier three, “disincentives to be uncooperative”. 

I hereby propose a “three-tier system” to manage forces manipulating wrongful public opinion from aboard. It would consist of the following: Tier one, “detective and preventive”; tier two, “mitigation directives”; and tier three, “disincentives to be uncooperative”

First, under the “detective and preventive” phase, the government should order specific agencies, with the assistance of filtering algorithms, to perpetually monitor unlawful content online. Furthermore, the law should obligate local online platform service providers or those that have set up local branches in Hong Kong to establish mechanisms to make reasonable efforts to ensure all their online content complies with Hong Kong regulations. The law should delegate power to the authority to inspect the adequacy of such mechanisms.

Since no computer model is perfect, in the event of unlawful content infiltration, tier two of the system — the mitigation phase — will be triggered. This phase focuses on mitigating damage done to national security relating to unlawful information, thus eradicating the unlawful message from the online platform is imperative. To achieve this, the agency should be conferred legal power to instruct local online platform service providers or those that have set up local branches in Hong Kong to remove specific content in a timely manner. If the entities fail to act accordingly, the agency may impose a circumscription directive on online platform providers from providing certain services. If the harm persists, the agency may grant a circumscription directive on access providers to ban platform service providers from accessing the network. In emergency cases, where the nature and severity of the danger to national security are such that it would be inappropriate to wait to establish the failure before applying for the directive, an interim circumscription directive on either or both instances thereof may be issued by the agency. The agency should obtain a certificate from the chief executive in advance of granting any circumscription directives.

Circumscription directives should be regarded as a final resort since ideally, online platform service providers should have complied in the first place. To discourage service providers from being uncooperative, the law should comprise appropriate disincentives. First, the agency should be granted the authority to hold accountable local online platform service providers or those that have established branches in Hong Kong. In the event that employees have intentionally failed to take all reasonable steps to follow directives, the employees should also be held liable. If companies or individuals fail to comply, penalties in the form of a percentage of their income, a single amount, or an hourly rate, may be imposed. Penalties may be imposed in conjunction with measures in tier two. However, discretion should be used in determining any penalties. The amount should deter the companies from being uncooperative, but not beyond reasonably necessary. In more serious scenarios, the agency can restrain companies’ business activities in Hong Kong, or in the most severe cases, cease companies from operating in a timely manner to safeguard national security.

Promulgation of the NSL has helped restore social stability, filling some of the loopholes in preserving national security in the special administrative region, and ensuring the prospect of prosperity for Hong Kong. Nevertheless, some anti-China forces are trying to manipulate public opinion to jeopardize national security by passing such roles on to entities abroad, out of the reach of Hong Kong law enforcement. Thus, there is a need for a “three-tier system” in response. As the HKSAR government prepares to legislate according to Article 23 of the Basic Law, the authorities can learn lessons from the implementation of the NSL.

The author is a researcher at the Silk Road Institute.

The views do not necessarily reflect those of China Daily.