Once a regional beacon of press freedom, Hong Kong’s media landscape has become barely recognizable under the harsh limitations imposed by the national security law (NSL) in 2020. And while journalists in the city have struggled to adjust to this new normal, there is a fresh chill on the horizon as the government looks to implement Article 23 of the territory’s Basic Law later this year with a more wide-ranging law on national security.

To learn more about the rapidly changing situation for the press in Hong Kong, CMP Managing Editor Ryan Ho Kilpatrick recently caught up with Professor Francis Lee at the Chinese University of Hong Kong’s School of Journalism and Communications. 

Ryan Ho Kilpatrick: You said recently that media in Hong Kong have reached a “new balance” in how they operate under Hong Kong’s national security regime. But now it feels like that newfound balance is already being thrown off yet again by all the uncertainties around Article 23. Do you think that’s the case?

Francis Lee: That’s the difficulty of speaking about these things. When journalists ask me these questions, I say that this is only what applies at 11:52 A.M. on February 15th. Don’t quote me on this one month later. Any equilibrium is bound to be short-lived.

If you’re living in Hong Kong day in and day out, I think this is part of the social psychology of adaptive resilience. Something happens and then you feel bad for two weeks and you don’t know what to do and then after two or three months you kind of adapt to the environment. After a few months, it seems like you can do certain things. It seems like you are not getting yourself in trouble. You look at your peers and they are also doing OK.

At that moment, you feel like maybe there is an equilibrium. Right now in Hong Kong, we all know deep down that any so-called equilibrium can be thrown off-balance tomorrow. No matter how you feel, that sense of being in equilibrium is something that you develop after the fact, after six or nine peaceful months.

Right now, of course, it’s very different, because you don’t know what the law will be. It depends on how you look at it. Like a lot of things these days in Hong Kong, it’s about expectation management. I think that’s how a lot of organizations in Hong Kong have been doing things since 2020. It depends on how experienced and how well-established these news or civil society organizations are. The more systematic, more well-organized and more well-established organizations immediately do an internal risk assessment to study the stipulations as soon as they come out and then compare it with their own work to assess where the risks are, whether certain adjustments are needed, and so on.

RHK: So this is a process media organizations will likely be going through right now with Article 23?

FL: For me, the most dangerous law for the news media is not necessarily Article 23. Like before, in the past two years, we had the NSL and then we have the common law offense of sedition. I think the general idea among a lot of journalists and a lot of media organizations is that they have been worried much more about sedition than the NSL.

It’s not easy for journalists to run afoul of the NSL as long as you stay away from Hong Kong independence and foreign funding, and follow a few other simple rules. That requires a bit of self-censorship, but at least there are ways for you to stay away from that. But sedition is different because anything that arouses hatred against the government can potentially be seditious. And basically, that means that whenever the news media tries to perform its watchdog role, it’s potentially in the gray area already. Of course, the sentence for sedition is at most two years in prison, which is nothing compared to NSL. But at the same time, it’s much easier for the news media to run afoul of.

When [these laws] are established, Hong Kong media just have to do the risk assessment again. There might be additional lines of self-censorship that they have to implement, but I believe they will find some way to survive. I think the legislation more journalists will be worrying about — or have been worrying about — deals with “fake news laws,” which the government has said they are studying but which we still know very little about. [State secrets] might require you to, again, to self-censor on a number of topics, but you can still avoid it. But disinformation, depending on how it’s defined, could be much harder to avoid.

RHK: You just spoke about how there’s this constant process of risk assessment and management and you yourself have been trying to advise people on how to manage that process. Probably the best example we have of how not to do that so far is the Foreign Correspondents Club, which scrapped the Human Rights Press Awards after, they say, lawyers advised it would be risky, and they decided they had a responsibility to avoid risk. But isn’t some degree of risk unavoidable for journalists in Hong Kong now?

FL: I tell people that my legal advice is not to seek legal advice. When you ask for legal advice, a responsible lawyer will tell you that the safest way is not to do anything. In a sense, they’re doing their jobs and I respect that. The problem is that the answer [to whether it’s perfectly safe to do something] is always going to be “no.”

The tricky thing about risk assessment and risk management [from] my own research in the past two or three years on news media and also civil society organizations is, first of all, that risk assessment in contemporary Hong Kong can be very idiosyncratic. You assess the risk in your own way. Different organizations assess the risk in their own ways. It depends on the organization’s background and the backgrounds of the people inside the organization. What a certain organization or a certain individual can do in terms of risk management may not be feasible for another organization or for another person.

The problem now is there is a gray area and that gray area is huge. It’s really huge. So can you really stay away from it? What it means to stay away from the gray area now is to listen to your legal advisor and do nothing. What would it mean if we, as the School of Journalism and Communication, were to completely stay away from the gray area? You cannot have everyone completely staying away. You need people to step inside the gray areas so as to show other people that this is actually possible. At this moment, it’s still OK. It gives a sense of security to other people. You have to try to… not to push the boundary, but at least reclaim that small part of the gray area.

Now, of course, the gray area also varies by gradation. Light gray is different from dark gray. You can still make that distinction. I can totally understand why people would stay away from the dark gray area. I’m not going to step inside the dark gray area for too long. But you cannot stay completely away from even the light gray area. Ultimately, of course, it’s also individual. It depends on individuals’ personalities and how exposed they are to economic pressures and threats to their assets or family in Hong Kong.

When a lot of people talk about risk, it’s not actually legal risk. The clearest example is school teachers. For primary and secondary school teachers, their imminent risk is to be reported by students or parents to the Education Bureau, which will then take away their job and their license to teach. That is the real risk — not that they’ll be grabbed by the national security police. For civil society organizations engaging with issues like social service provisions or homelessness, they have to collaborate with a lot of other parties. The real risk for them is that if they become too outspoken, they might be criticized by the government or the leftist press, and then others will stay away from them and they can no longer do their work.

Something I’ve come to realize more and more is that the risk that people are facing is, mostly, not legal. For most people, it’s basically about their jobs. That’s why people have to stay away from expressing anything on Facebook. Your boss is watching. Your colleagues are watching. We have so many cases of people losing their jobs because of what they wrote. That is the real risk.

RHK: All this talk about how professionals in Hong Kong need to think about political risk and work around it reminds me of another interview we did recently with Emily Chua at the National University of Singapore. In The Currency of Truth, she makes this distinction between the ethics of truthfulness — the traditional journalistic ideal that’s all about uncompromising truth-telling — and what she calls the “ethics of efficacy,” an alternative ethics she observed among journalists in mainland China that accepts a certain level of compromise and self-censorship in order to continue doing their work and also write meaningful stories. Are we seeing something similar emerge among media workers in Hong Kong?

FL: That’s a good way of conceptualizing it. In the mainland Chinese system or in some organizations, if you are a trusted worker in the organization, you can have much better ways of dealing with [the censorship apparatus]. Many years ago, I had a friend in a state media organization. He was a commentary writer for state for that state media organization. I still remember I was asking him, “You’re very liberal — why would they ask you to be a commentator?” And he said that they needed someone who is relatively liberal to balance out their really conservative commentators. He told me his way of working as a commentary writer in state media was that he would try to push the boundaries. Of course, he had a sense of what was absolutely impossible and he wouldn’t touch that. But then on any topic, he would try to push that topic to maybe nine [out of ten], and then, typically, it was struck down. So he would dial it down to an eight and then maybe strike it down to seven. That was how things worked during the Hu-Wen era (2002-2012), at least. 

In the Russian context, we also talk about ethical self-censorship, which refers to when you self-censor in order to protect your sources or prevent your colleagues or your organization from getting into trouble. I think this is actually quite typical in authoritarian settings because you are not working in an environment where freedom of information is well protected.

In the early years of the NSL, a lot of people were still willing to talk to the media. There were still a lot of outspoken people in Hong Kong who were willing to criticize the government on certain things. And sometimes journalists would actually have to tone down their criticisms [to protect them]. They’d have to say, if I write directly what you said, you will get into trouble, so I’ll tone it down. I think that’s also the kind of scenario that gives you the sense of being in equilibrium.

I did a very lengthy interview with a news organization on a sensitive topic and they let me read the whole article before [it was published] even though I didn’t request that. I never request that because if I have any concerns about an interview I say no, and I’m careful to say what is on the record and what is not. I read the whole thing and I suggested deleting two sentences — not because of my own words but because I had mentioned another news organization, so I told the reporter, “Maybe we should just kill those two sentences — we don’t want to put that organization out on the table, right?” And she agreed. You could say that’s ethical self-censorship. I told a colleague who’s a veteran journalist about this and they were shocked. In a normal situation, this whole interaction would’ve been so strange. But what do you expect? This is the nature of the time.

RHK: I’ve done the same for sources in Hong Kong over the past few years, actually. In journalism school we were taught to never do this — to let your interviewees screen what you would and wouldn’t publish — but I also think we owe a duty of care to the people we interview, and that has to come first if the work we do might put them in danger. 

FL: Frankly speaking, we need to rethink the whole ethics thing. Back in school, when we talk about how journalists should not allow interviewees to dictate what they write, we normally talk about interviewees who are more powerful than us. You’re dealing with power. But what if you are dealing with vulnerable people?

Consider another example. Let’s say you’re dealing with a MeToo case and the victim wants to be interviewed. Then they say they want to retract something. What do you say? Yes, I think — you have to say yes in that case. Basically, I think we are now applying the rule for dealing with vulnerable people to interviewees speaking on sensitive topics. If they are still inside an authoritarian country, we have to see them as a vulnerable group.

[Hong Kong] society is undergoing an extremely challenging and difficult period for people who uphold certain values of liberty and democracy. It’s not in the early years of the [1997] handover when you could heavily criticize the government. These days, it can be very risky. So you have to adapt. You have to try to feel where the red lines may be. But you still have to try to do something. Even though the situation is very difficult, people are trying to cling to their values, to cling to their beliefs, to hold them dear, and try to do something.