Legalization of press control under democratic backsliding: The case of post-national security law Hong Kong

Legalization of press control

Journalists and media organizations operate within specific legal environments, and the characteristics of the laws and legal system in place fundamentally shape the degree of civil liberties, including press freedom, the society has. At one end of the spectrum, democratic societies have meaningful constitutional protection of freedom of speech and of the press, carefully crafted laws to balance freedom of expression and other legitimate goals, and judicial decisions that place strong emphasis on press freedom when the latter is relevant. In contrast, authoritarian countries provide weak constitutional protection of free speech and develop harsh laws, such as criminal libel, to curtail freedom of expression. The press is subjected to rigid legal regulations, and journalists who dare working on sensitive and critical news stories could face substantial legal risks (Crook, 2009; Eko, 2010).

Laws and the legal system are not static. They can evolve dynamically to meet new needs or handle new phenomena. For instance, states may exercise legal restriction or even repression of social protests through tightening the regulatory requirements for conducting protests, criminalizing certain forms of hitherto legitimate actions, or adopting more restrictive interpretations of relevant laws (Ellefsen, 2016; Shriver et al., 2018). The rise of the fake news phenomenon, for another example, has led to debates about anti-disinformation legislation around the world. While democratic countries tend to reject such laws or severely restrict the scope of their operation, authoritarian states are often criticized for having anti-disinformation legislation with broad scope of application and vague definitions, thus potentially allowing the state to suppress freedom of expression in the name of combating fake news (Fernandez, 2019; Neo, 2022). This article thus defines legalization of political control as the establishment and employment of legal instruments to undermine actual and potential societal challenges to political power, and legalization of press control can be likewise defined as the establishment and employment of legal instruments to control media operations and journalistic work.

However, legalization of press control is not merely an attempt to establish a range of harsh laws to curtail press freedom. As authors examining the “authoritarian rule of law” pointed out, authoritarian states or various hybrid regimes (Levitsky and Way, 2010) have the incentives to establish a reliable legal system for the purposes of administrative discipline, constructing elite-level cohesion, providing an infrastructure for economic development, setting up an authoritarian enclave, delegating controversial issues to the judiciary, and building regime legitimacy (Moustafa, 2014). The overall goal is to institutionalize a thin conception of the rule of law that focuses on a judicial system that is efficient, effective, and consistent, laws that are general, known, non-retroactive, clear, and plausible, and the presence of officials who abide by the rules (Shapiro, 2012; Silverstein, 2012). Hence the court system in many authoritarian states could have a degree of relative autonomy and become an arena for political contention (Wilson, 2012).

The complexity of authoritarian rule of law, especially its concern with legitimacy, has several interrelated implications for the present study. First, legalization of press control is likely to involve a mix of conspicuously harsh laws and a range of more nuanced and/or hidden means of control. Having too many harsh laws conspicuously curtailing civil liberties and employing these laws too frequently can evoke local and international criticisms, undermining the attempt to maintain the democratic façade. Instead, subtle changes in the details of certain laws or the operation of legal or regulatory procedures could effectively undermine certain kinds of journalistic work without arousing widespread discontent. This expectation is consistent with the emphasis by scholars on the current wave of democratic backsliding, which is a gradual process (Curato and Fossati, 2020) involving a “game of deception” (Lührmann and Lindberg, 2018).

Second, while the laws constitute the core of legalization, the politics of legalization cannot be understood without examining the public discourses supporting legalization. Such discourses include the rationales and arguments evoked to justify the establishment of specific laws, such as discourses constructed to support fake news legislation (Lee and Lee, 2019; Neo, 2022). They include the state’s broader attempts to construct the overarching threats facing a nation, thus justifying the tightening of political control (Rajah, 2012). The supportive discourses also include the state’s responses to criticisms when the laws are employed to charge media organizations or arrest journalists. A core aspect of such responses is likely to be a conception of the rule of law that focuses on the necessity of rule-following and ignores the role of the law in constraining political power.

Third, given that the state may not prefer the frequent utilization of legal power because of the costs involved and its possible impact on regime legitimacy, part of the purpose of legalization is to induce self-censorship and increase friction in reporting. The presence of legal risks can induce fear among journalists. Media organizations may adjust their operation and place more constraints on journalistic work (Au, 2017; Lee and Chan, 2009). In addition, as recent scholarship on media self-censorship in competitive authoritarian regimes has illustrated, journalists may self-censor out of a concern for the safety of colleagues and news sources (Fedirko, 2020). Moreover, since legalization of press control is part of a broader process of legalization of political control, the impact of increased legal risks could spread across the society. This could create friction (Roberts, 2018) for news reporting, such as when people become more reluctant to talk to the press and journalists find it more difficult to find willing sources.

Following the above explication, an analysis of legalization of press control should pay attention to the range of legal instruments utilized by the state to undermine press freedom, how legalization is supported by official and public discourses that aim at justifying the use of laws, and how part of the influence of legalization is realized through inducing self-censorship and friction in journalistic work.

Legalization without democratization and democratic backsliding in Hong Kong

The analysis of legalization of press control in Hong Kong needs to be put into context. Hong Kong has never been a full democracy, either under the British rule or after the handover in 1997. Yet democratization as a goal was enshrined in the Basic Law, the mini-constitution of the city. Nevertheless, in reality, Zhu (2019) argued that legalization without democratization has long been China’s main strategy in its governance over Hong Kong. That is, China has long been trying to legalize its control over Hong Kong affairs and institutionalize a thin conception of the rule of law in the city. Nevertheless, in the early years after the handover, legalization of control and influence was largely restricted to several cases of interpretation of the Basic Law by the National People’s Congress (NPC). In fact, at the time of the handover, Hong Kong boosted a well-established legal system adopting the British common law, its own Court of Final Appeal, a legal profession strongly believing in the value of judicial independence, and the emergence of cause lawyering following the establishment of the Bill of Rights Ordinance in 1991 (Jones, 2015). The legal system was even regarded by many activists as a useful channel to pursue their causes (Tam, 2013).

The role of the law, the legal system, and the legal profession started to change alongside broader political transformation. After the 2003 July 1 protest that forced the Hong Kong government to postpone national security legislation, the Chinese government began to intervene more proactively into Hong Kong affairs (Lee and Chan, 2011). Social, economic, and political integration intensified (Lui, 2015). By the late 2000s, the negative repercussions of social and economic integration on local people’s everyday life had become more conspicuous. Coupled with frustrations over the lack of progress of democratization, anti-China sentiments grew. A discourse of mainlandization of Hong Kong and anti-China localism emerged (Ip, 2020). Such developments heightened the conflicts between China’s governing strategy and the common law system in place. The results were the politicization of the legal profession, declining public confidence in the rule of law, and radicalization of social mobilization (Lee, 2017; Zhu, 2019).

Such developments did not stop the Chinese government from tightening its control over Hong Kong. According to Fong (2021), China even shifted from exercising indirect autocratic influence to exercising direct autocratic influence in the 2010s. In June 2014, the State Council promulgated a white paper on The Practice of the “One Country, Two Systems” Policy, in which the Central Government claimed to have “overall jurisdiction” over the Special Administrative Region. In 2016, the NPC unilaterally interpreted the Basic Law to provide the legal ground for Hong Kong courts to disqualify six elected legislators because of the latter’s controversial acts during oath-taking. In December 2017, the NPC unilaterally decided on the co-location arrangement in the city’s West Kowloon Expressway Station, effectively establishing a mainland jurisdiction within Hong Kong for mainland immigration officials to enforce mainland laws and immigration control.

In other words, democratic backsliding had started since the early 2010s, and Hong Kong presents a case of backsliding on all fronts (as opposed to countries where different institutions experience different kinds of changes, see Ding and Slater, 2021). Cracks in the integrity of elections began to appear with suspected vote planting and gerrymandering (Wong, 2019). The court meted out heavy sentences to protesters who participated in an unrest in 2016 using a harsh riot law (Ng et al., 2019). In the media arena, self-censorship became constitutive (Au, 2017). Mainland Chinese capital became more aggressive in capturing the Hong Kong media (Lee, 2018). In 2018, the Hong Kong government refused to renew the visa of a Financial Times journalist, apparently due to the latter’s role in hosting a talk by a pro-Hong Kong independence activist. The city’s ranking on Reporters without Borders press freedom index dropped from 34 in 2010 to 73 by 2019.

The intensification of state-society conflict led to intensive and extensive social mobilization, including the Anti-National Education Movement in 2012 and the Umbrella Movement in 2014 (Lee and Chan, 2018). In face of government irresponsiveness on democratization, social protests turned to a more disruptive and radical action repertoire over time. The continual growth of protests culminated at the 2019 Anti-Extradition Law Amendment Bill protests. Notably, the extradition law amendment bill was itself part of the effort to legalize China’s power in Hong Kong. For critics, the proposed arrangement “could evolve from enhanced cross-border law enforcement to a tool for [legalized] political reprisal” (Ng, 2019). Opposition toward the bill turned into an anti-authoritarian uprising (Cheng et al., 2022). Although the bill was withdrawn, the government did not concede on the demands for democratization and police accountability. Instead, the state responded with a combination of legal repression and post-protest autocratization of the society.

Specifically, the NPC bypassed the local legislative process and imposed the NSL onto Hong Kong on June 30, 2020. The law criminalizes subversion, secession, terrorism, and collusion with foreign or external forces. It also expands executive power by allowing the Chief Executive of Hong Kong to appoint judges for NSL cases and the government to oversee schools, social organizations, and the media for matters related to national security (Fong, 2021: 208). The first conviction under NSL came in July 2021. A man was sentenced to 9 years in jail for inciting for secession and committing an act of terrorism. What the person did was joining an unapproved protest by riding a motorbike, carrying a flag with the slogan “Liberate Hong Kong, Revolution of Our Time” on the motorbike, and inadvertently running into a group of police officers.

The NSL aside, a large number of prosecutions were leveled against the 2019 protesters. Meanwhile, the electoral system for the Legislative Council was also “reformed.” The percentage of directly elected seats dropped from 50% to 22.2%. In May 2022, former secretary of security John Lee was chosen by a 1200-member election committee to be the new Chief Executive of Hong Kong in the absence of a competing candidate.

In sum, democratic backsliding had accelerated since the critical juncture of 2019/2020. Not surprisingly, press freedom was adversely affected, as noted at beginning of this article. The following would provide an analytical account of the politics of legalization of press control that has been central to the decline in press freedom.

Methodological note

The following analysis focuses mainly on the first 2 years after the establishment of the NSL (i.e., July 2020 to June 2022). The author reviewed media reports and commentaries surrounding a wide range of incidents and debates, such as cases of arrests and prosecution of journalists and public debates about the government’s plan to enact new laws. The media materials were treated both as sources of information and carriers of discourses. That is, the media materials allow the author to register the occurrence of incidents and discussions related to the theme of legalization. They also allow the author to analyze the discourses promulgated by the state and other actors.

In addition, since January 2022, the author began to conduct a series of interviews with journalists with an overarching aim of tracking the changes of the Hong Kong news media. As a long-term and broadly conceived project, the interviews followed a semi-structured format and addressed a wide range of issues pertinent to the challenges the Hong Kong news media have been facing. Given the concurrent social and political environment, issues such as the impact of the NSL, political risks facing journalistic work, and media self-censorship loomed large in numerous interviews. Up to June 2022, 22 interviews with journalists from 10 media organizations (9 local and 1 international) were conducted. The interviews typically lasted for 2 hours. They offer materials that aid our understanding of certain key events and the impact of legalization on journalistic work.

Intensive development of legal instruments

The enactment of the NSL in June 2020 marked the beginning of a period of intensive legalization of press control. From our in-depth interviews, many journalists recalled that they originally did not find the NSL particularly dangerous when it was established. They saw certain political groups and activists as the primary target of the law. Some started to become more worried when national security police raided the office of pro-democracy newspaper Apple Daily and arrested owner Jimmy Lai, his two sons, and four other senior management staff of the company. Some were charged for conspiracy to commit fraud, while Lai, his second son, and one of the senior staffs were charged under the new NSL for conspiracy to collude with foreign forces to endanger national security.

Nonetheless, some interviewees stated that even the first raid in 2020 did not make them too anxious because Lai and the arrested senior staffs were all on the business side of the company. It was still unsure whether and how the newspaper would become the target of the NSL. The answer came in June 2021, when eight top newsroom staffs were arrested by the national security police, and six were charged for collusion with foreign forces in the following month (Lo and Lam, 2021).

However, legalization went much beyond the enactment of the NSL. It also involved the invocation of old colonial laws to sue the media. In December 2021, the national security police arrested the former and current chief editor of the online news outlet Stand News and charged them for conspiring to publish seditious publications, an offense based on the Crimes Ordinance (Wai, 2022). The arrests and freezing of assets compelled the outlet to shut down. Notably, the stipulations against sedition in the Crimes Ordinance came originally from the Sedition Ordinance of 1938, which was incorporated into the Crimes Ordinance in 1971. It was deployed by the colonial government to suppress pro-communist factions and media, but had not been in use for decades before it was evoked in the post-NSL era to charge not only media organizations but also activists and unionists (Lau, 2020).

The employment of the Crimes Ordinance arguably confirmed legal scholar Ng’s (2017) point that the British common law does not necessarily represent a “liberal democratic institution.” It served colonial power historically, and it could easily be appropriated for authoritarian purposes in contemporary contexts. In any case, the charge against Stand News directly led to the closing down of Citizen News, another online news outlet. A senior staff member of Citizen News explained in the research interview that, unlike Apple Daily and Stand News, their outlet did not engage in advocacy journalism. Therefore, she was not too worried about the NSL and did not regard the danger as imminent until Stand News was forced to close down through the invocation of the notion of seditious publication. In other words, for her, instrumentalization of the Crimes Ordinance had significantly expanded the scope of materials that could run afoul with law enforcement.

By end of June 2022, efforts by the state to create new legal instruments are still ongoing. Since 2020, the government had signified its intention to consider fake news legislation. During the Chief Executive election in mid-2022, the only candidate John Lee proclaimed that establishing laws regarding treason and spying would constitute one of his priorities after assuming office. These laws may not have the media as the prime target, but if enacted, they would certainly further extend the legal minefield the media have to navigate.

As noted in the conceptual discussion, legalization of press control is likely to involve not only the use or enactment of harsh laws, but also subtler and seemingly minor changes, which nonetheless influence journalism significantly. In March 2021, an investigative journalist was fined by the court for HKD6000 for making false declaration when using the government’s public car registration records during her work on an investigative story. Checking public records at various government departments has long been a standard practice among investigative journalists in Hong Kong. In the case of the public car registration records, users are asked to declare the purpose of their searches, but news reporting was not an option. While journalists still used the records for reporting purposes and had not encountered problems for many years, the prosecution signified that journalistic use of the records for reporting would no longer be allowed.

In our research interview, investigative journalist Larry said that his company had stopped letting reporters use the public car registration record. They still accessed the Company Registry and the Land Registry, and it was not entirely clear if journalistic use of those registries would be banned in the future. He noted that Hong Kong journalists typically use their companies’ accounts when accessing the registries, but in 2021, the registries’ computer systems started requiring users to input personal names and identification numbers. Hence individual journalists could become at risks. This example shows how a very minor adjustment can nonetheless shape the amount of legal risks journalists have to face.

Another example of how minor legal regulation could influence freedom of information was about a technical rule in court reporting. Section 9P of Hong Kong’s Criminal Procedure Ordinance outlaws the publishing of reports containing any matter related to bail proceedings other than a few designated items (e.g., name of the person applying for bail, the offense committed, etc.). The maximum penalty is a fine of HKD500000 and 6 months in jail. The rule had rarely caught the public attention. But in the post-NSL era, many persons charged with the NSL were receiving lengthy periods of pre-trial detention. The bail proceedings, therefore, became important occasions for updating the public about the situation of the arrestees; they were also occasions when the arrestees expressed their views, making the contents of the proceedings matters of public interests. In March 2021, several media outlets filed a court application for the restrictions to be waived, but the judge rejected the application. Up to June 2022, no exceptions were granted in any NSL-related cases.

Also worth mentioning was the police force’s decision in September 2020 to change the definition of “media representatives” in the Police General Orders. The new definition restricts the media to those registered with the government or internationally recognized foreign outlets. Restricting the definition means that the police would no longer be cooperative with outlets not registered with the government, as well as citizen journalists or freelance journalists who do not belong to media organizations (Leung, 2020).

In sum, legalization of press control involves practices ranging from the enactment of new laws and the invocation of old laws to the court’s refusal to consider the journalists’ public interest claims. Some of these matters attract much public attention; others are technical in character. Combined together, they established often vague “red lines” for the media, increased the legal risks in news reporting, and restricted the capability of the press as a whole to report on important information.

Justifying the use of laws

It is beyond the scope of this article to reconstruct all the details of the state’s discourses associated with legalization of press control. This section could only outline the basic character of such discourses. In their study of the Umbrella Movement, Lee and Chan (2018) noted that the state employed three counter-frames against the movement: foreign intervention, the rule of law, and public nuisances. The first two could be considered as the cornerstones of official discourses on various political matters in Hong Kong over the years. In fact, ngoi-gwok-sai-lik or ngoi-bou-sai-lik, the two phrases for “foreign force,” appeared in 3147 articles on the pro-communist newspapers Wen Wei Po (WWP) and Ta Kung Pao (TKP) between June 30, 2020 and December 31, 2021. That is, references to (typically vaguely defined) foreign forces were pervasive in pro-government media discourses after the establishment of the NSL.

Against such background, official discourses further constructed the connections between local media and foreign powers. Speaking at the legislature in April, 2021, then Police Chief Chris Tang described “fake news” as a matter of national security because “agents of foreign forces” could disseminate fake news “to incite violence.” Tang argued that the local media identified by foreign forces as their helpers “would use misleading and sensationalist ways to disseminate incorrect information” (Cheng, 2021). Different from countries subjected to foreign-initiated and web-based disinformation campaigns, Tang portrayed a scenario in which the foreign agents colluded with local media. The account provided the ground for considering fake news laws and accusing specific media outlets for colluding with foreign forces.

The construction of persistent threats to national security pointed toward the necessity of legal measures. When arrests occurred, government leaders would dismiss the implications toward press freedom by simply emphasizing the importance of obeying the law. When the national security police arrested Jimmy Lai and top newsroom staffs of Apple Daily, Chief Executive Carrie Lam stated: “[This] is not exchanging views between foreigners and journalists. It is violating the law as defined in the national security law” (Huang, 2021a). When the police arrested the top personnel at Stand News, Lam stated: “seditious acts and activities and inciting other people through public acts and activities could not be condoned under the guise of news reporting [. . .] Freedom of speech is not something you can use to absolve you if you break the law” (Huang, 2021b).

These claims were echoed by the pro-government media. TKP’s editorial on December 31, 2021, was titled “Press freedom is not a shield for violating the law,” whereas WWP also published on the same day a commentary article titled “Press freedom is not an excuse for Stand News to violate the law.” Underlying such discourses is an understanding of the rule of law focusing merely on rule-following and consequence-bearing, an understanding the Chinese state has promoted for years (Hargreaves, 2015).

In addition to the two cornerstones, other discursive strategies were involved in justifying legalization. A typical move was the construction of equivalence. For instance, government officials and pro-government media often referred to the presence of fake news legislation in France, Germany, and Singapore. The evocation of such cases, however, typically did not interrogate into the historical contexts and specific details of the laws. A chain of equivalence was constructed to make the highly generalized point that “fake news laws exist in many countries, including democratic ones.” For another example, TKP’s editorial about the Stand News case on December 31, 2021, wrote:

Murdoch’s News International was closed down [. . .] due to a phone-hacking scandal; Australian police searched the Australian Broadcasting Corporation and took documents away; Facebook was fined by the Russian government for non-removed incitement messages. Singapore cancelled the licence of Internet website Online Citizen. There are many similar cases, suggesting that regulating the media is common across the world.

In this passage, countries and cases of very different characteristics were lumped together to make the highly generalized point that media regulations exist everywhere. Prosecuting Stand News was merely another case of (legitimate) media regulation.

Lastly, while legalization can involve the establishment of new legal measures, the state also engages in discursive innovations to strengthen the justificatory discourses for legalization. One prominent example is the notion of “soft resistance.” It originated from a speech by Director of the Hong Kong Liaison Office of the Central People’s Government Luo Huining on April 15, 2021. The term then appeared in 116 articles on WWP and TKP between April 16, 2021 and April 16, 2022. It was picked up and utilized by both Hong Kong officials and pro-government commentators. Speaking at a forum in July 2021, Chris Tang, who had by then been promoted to Secretary for Security, stated that “Hong Kong independence activists have not given up. They adopt such ‘soft resistance’ ways of promoting the idea of Hong Kong independence through media, culture and the arts, and publications” (Lau and Ng, 2021). On December 31, 2021, a commentary published by WWP was titled “Stand News was basically putting up a ‘soft resistance.’” Without concrete definitions, the term provides the discursive means for the state to point toward phenomena that need to be regulated or even criminalized.

Legalization and its associated discourses are therefore co-evolving. The above analysis cannot demonstrate if the discourses are effective in generating perceived legitimacy of legalization in the public’s mind. However, given the social atmosphere under legalization of political control, media and public criticisms against the government’s actions were far from vociferous. This, of course, has to be understood in terms of the evolution of the politics of self-censorship in Hong Kong.

Journalistic response and the changing politics of self-censorship

Self-censorship has been a problem in the Hong Kong media even before the handover. Since the transfer of sovereignty, the problem was examined by academics (Au, 2017; Lee and Chan, 2009) and tracked by professional bodies such as the Hong Kong Journalists Association in their annual reports. After 2020, legalization of press control has heightened the risks of news coverage of potentially sensitive topics. The problem of media self-censorship thus worsened. For instance, on November 2, 2021, news about Chinese tennis player Peng Shuai’s accusation against a top Chinese official for sexual assault broke out, but except one financial news story mentioning the scandal in relation to the performance of a stock related to the Chinese official, no Hong Kong newspaper even mentioned Peng’s name until she reported about her personal safety via social media on November 18, and the Women’s Tennis Association voiced their concerns about Peng.

Interestingly, journalists inside conservative news organizations might not have to face political risks by themselves. As one interviewee put it, she did not experience any need to take any political risks since the establishment of the NSL “due to various backgrounds,” pointing toward how conservative decisions at the organizational level had insulated her from politically sensitive topics in the first place. In contrast, many journalists working in more liberal newsrooms had the experiences of struggling with political pressure. One interviewee acknowledged that, since the closure of Apple Daily, she had the thought of “better not always working on the most hardcore topics.” Another interviewee acknowledged that, in mid-2020, she was originally planning to work on a story about public support for Hong Kong independence. But she dropped the topic when news about the NSL came out.

On the one hand, individual journalists varied in their assessments of personal risks, and this could be rooted in personal and organizational background. On the other hand, journalists had a shared understanding of the “pecking order” of news organizations targeted by the state. As mentioned earlier, a former senior journalist at Citizen News recalled that she did not see her outlet as an imminent target until Stand News was prosecuted. Similarly, a couple of interviewees noted that the closing down of Stand News and Citizen News marked the point when their organizations started to truly worry about political risks. One opined that she always thought China would target advocacy media outlets with mobilizing power. With these criteria, her organization was relatively “safe.” But when even Citizen News, which did not engage in advocacy journalism, also closed down, her organization became closer to the forefront. The other interviewee noted that, after Citizen News’ closure, her colleagues shared a sense that they had to avoid the most sensitive topics and discuss more thoroughly before making certain editorial decisions.

Studying Ukrainian journalism, Fedirko (2020) noted the presence of “ethical self-censorship” motivated not by fear but by a concern with the journalists’ relationship with or a need to protect others. Numerous interviewees expressed the same sentiment. One stated that, after 2021, people have gotten used to think about whether certain compromises are necessary evils for protecting the companies and colleagues. Another interviewee articulated the point in relation to journalist-source relationship:

Before the NSL, journalists did not have concerns about reporting what the sources said. The sources have to be responsible for what they said. But after the NSL, no journalists would think that way. When you report on what someone says, you would think about the implications on yourself, on your company, and on your source. Sometimes you tell your source, “if I write this you will be in trouble.”

Therefore, what changes was not only the extent but also the character of self-censorship. Self-censorship in Hong Kong used to be something that journalists would rarely admit to have committed. Inside newsrooms, it was typically camouflaged by professional discourses or technical rationale (Lee and Chan, 2009). But post-NSL, many journalists accepted the need to discuss the question of political risks.

Meanwhile, even if journalists do not attend to the safety of sources, many sources had started to become more cautious. Many interviewees noted the difficulties to find sources to comment on various issues. An interviewee in-charge of her organization’s commentary section noted that many authors started using pennames. An experienced investigative journalist noted that there have been fewer whistle-blowers after the NSL.

Similar to the situation of journalists, news sources may refrain from talking to the media or start self-censoring not because of fear. Between the establishment of NSL and the end of 2021, more than 50 organizations had disbanded (Kwan, 2021). The dismantling of civil society organizations mean that some sources have lost the “identities” that made them legitimate spokespersons on certain matters. One interviewee mentioned the example of the education sector. The Professional Teacher’s Union, an organization central to the city’s pro-democracy movement for decades, used to be an important news source for educational policies. But after its dissolution, the former union leaders could no longer speak as union leaders. Yet they could not speak as teachers from specific high schools since that might put their schools under unwanted spotlight. The result is that they started refraining from speaking to the media on education policies.

Several interviewees concurred that the lack of sources is particularly serious on legal issues. One interviewee had the experience of being ignored by very friendly sources when the topic was related to the legal arena. One interviewee specifically named “all matters directly related to the NSL” as among the most sensitive issues that sources feel reluctant to talk about. The situation became more serious over time such that, by mid-2022, it was not easy to find sources to criticize the Hong Kong government on various matters. The result is imbalance in reporting: “You tried to balance, but only the pro-government sources revealed their identities; those who criticized the government remained anonymous, and their criticisms were mild anyway, so is it balanced?”

The scenario means that the process of legalization of press control would not be subject to adequate critical scrutiny by the press, and the justificatory discourses promulgated by the state would not be adequately countered publicly. One interviewee opined, referring to the first NSL trial in mid-2021, that the media had to just let the facts speak. But as explicated previously, legalization of press control could involve less conspicuous measures, and it is questionable if “letting the facts speak” would suffice for generating an informed public regarding the issues involved.

Concluding discussion

This article puts forward the notion of legalization of press control as a way to understand the politics of press freedom in post-NSL Hong Kong and possibly in hybrid regimes experiencing democratic backsliding in general. For the purpose, the analysis is both contextualized and in dialog with the general theoretical literatures on democratic backsliding, authoritarian rule of law, and censorship. While it is an intuitive idea that authoritarian states could weaponize the law to curtain civil liberties, this article emphasizes several aspects of legalization of press control. First, it highlights the range of measures involved. Legalization is not merely a matter of establishing and utilizing harsh laws to suppress the media. Consistent with the idea that democratic backsliding typically involves gradual, incremental, and often inconspicuous changes (Bermeo, 2016; Curato and Fossati, 2020), legalization of press control also involves the implementation of seemingly minor and subtle measures to undermine critical news reporting.

Second, understood in relation to the authoritarian rule of law (Moustafa, 2014; Rajah, 2012), legitimacy remains a significant concern for the state. The establishment and use of legal measures is therefore accompanied by justificatory discourses. Yet in Hong Kong, such discourses did not arise merely due to the wave of legalization after the NSL. They are grounded in political discourses promulgated by the state over the years. Meanwhile, there have been ongoing discursive innovations that pave the way for further legal control.

Third, legalization created both fear and friction, two key components that generate censorship and self-censorship (Roberts, 2018). The legal measures influenced the society at large instead of merely the media. Self-censorship arose not only among journalists but also among news sources, creating practical difficulties for producing critical journalism on sensitive topics. A widespread societal culture of self-censorship facilitated legalization of press control by undermining public and press criticisms against the process. In other words, legalization of press control itself could create the dynamics that shield the process from public scrutiny. The culture of self-censorship is crucial to the politics of legalization because, even when the legal instruments are available, it could remain costly for the state to employ such instruments too frequently. Compelling the media and society into voluntary silence remains the “ideal scenario” from the state’s perspective.

Could legalization of press control really undermine freedom of expression and of the press without severely undermining governmental legitimacy? Answering this question is beyond the scope of this article. The article was written toward the end of the second year after the establishment of the NSL. While the authors believe in the importance of having a timely analysis, we are still unsure how the court would adjudicate the media-related cases, especially the high-profile cases of Apple Daily and Stand News. Opinion survey data from the Public Opinion Research Institute showed that Hong Kong people’s rating of the rule of law in the city had dropped – on a 0-to-10 scale – from 4.45 in April 2020 to 3.41 in August 2020, immediately after the establishment of the NSL, but the figure rose back to 5.21 by February 2022. Yet it was still substantially lower than 6.2, the score in early 2019 before the Anti-ELAB protests. ¹ We do not know if the rise in evaluation of the rule of law was merely statistical regression to the mean when the society became quieter or a matter of people starting to gradually regain their belief in the legal system.

Two issues regarding the problem of legitimacy of legalization can be highlighted for future observation and analysis. First, there could be internal tensions among the various goals of the strategy of legalization. For instance, there could be a tension between the logic of authoritarian rule of law and the logic of self-censorship inducement. To achieve legitimacy, even a thin conception of the rule of law would require the laws and their execution to be clear, reliable, consistent, and plausible (Silverstein, 2012). However, keeping the rules ambiguous is crucial to self-censorship inducement. When the media are left guessing where the “red lines” are, they tend to play safe to an even larger extent (Lee and Chan, 2009). It would be important to observe whether and how the legal framework would be clarified in the future, especially through court adjudications, and how such clarifications (or the lack thereof) would impinge on legalization of press control.

Second, theorists of authoritarian rule of law have argued that, once the court is given the role to resolve political disputes and maintain regime legitimacy, the judiciary typically gains a degree of relative autonomy and becomes a site of contention (Moustafa, 2014; Shapiro, 2012). Wilson (2012), in particular, has examined judicial resistance in several post-Soviet authoritarian states. Critical observers of Hong Kong politics might not be optimistic about the presence of judicial resistance in the post-NSL era. But theoretically, it remains the case that agents within the legal complex are core to the system’s operation. The outcomes of legalization of press control, including the extent to which legitimacy can be maintained and the extent to which press freedom would be curtailed, would depend on their actions.

By the same token, the agency of journalists cannot be completely dismissed. Studies of self-censorship in Hong Kong and other countries often involve an analysis of the strategies developed by journalists to resist political pressure (Au, 2017). We should keep observing whether and how Hong Kong journalists develop new methods to navigate the legal minefield as the shape of the legal minefield evolves. Issues already mentioned in the analysis, such as journalistic assessment of risks and the changing character of self-censorship, deserve more in-depth treatment.