Some legal constraints on media people...and how they work out

Ken Lui - Executive Committee Member, HKJA

[Mar 2012 - The Journalist  “No law against taking a photograph. But in fact there are many legal restrictions onthe right to take a photograph.”
So says the introduction to “UK Photographers' Rights Guide”.
This precisely applies to Hong Kong which enjoys freedom of the press while its news workers have been facing - other than the lack of rights - more restrictions in reporting. This issue of “The Journalist” looks at what the law says about constraints against reporters, and what can be done to cope with unreasonable restrictions.

(1) Conflict between covering police clearance actions and visits by political leaders

The police have been using various excuses including “core security zones” and “police action zones” to bar reporters from entering news scenes as during protests at the Central Government’s Liaison Office, dispersals on July 1 and Vice-Premier Li Keqiang’s visit, to name a few.

Even if reporters had entered the so-called restricted “core security zones”, the police cannot arrest them for trespassing, according to Dr. Yan Mei Ning, an assistant professor at Shantou University’s faculty of law.

Dr Yan, who has worked in various news organisations, says the “core security zones” are merely action concepts and measures. Legally speaking, restricted zones have to be announced by the chief executive under the “Public Order Ordinance” and gazetted to be enforceable.

The flower bed outside the main entrance to the Liaison Office is the best - if not only - location for news cameramen to cover protests. But the police frequently lists the flower bed as part of the “police action zone”, leaving journalists with no choice but to retreat to the press zone - an area behind the flower bed near the vehicle entrance - and “diagonally” across from the petition site.

Entering the “police action zone” can result in journalists being charged for obstructing police officers, misbehaviour and resisting arrest. In 2002, police were embroiled in a row over handcuffing of two journalists who refused to enter the press zone during police clearance of protesters over the right of abode movement in Central’s Chater Garden.

Upon investigation by the the Complaints Against Police Office, CAPO, the Independent Police Complaints Council accepted the second report and ruled the handcuffing of journalists to have been inappropriate. But it rejected complaints about the set up of the press zone and obstruction of the media.

Another debate over press arrangement was triggered off by state leaders’ visits to Hong Kong as the city celebrated the 15th anniversary of the Handover. Yan, an expert on human rights and media laws, said police restrictions have to meet the proportionality test, despite the stricter security arrangements police in Hong Kong as well as in other places tend to impose during state leaders’ activities.

Explaining the legal concept with an example, she said: “To achieve the ultimate security, the most extreme approach is to impose a curfew or jail every one, but the society has a consensus that this is absolutely unacceptable. Therefore restrictions to fulfil security purpose cannot be of excessive or extreme nature and have to be proportional.”

She added that international law and courts in Taiwan and Hong Kong have put strong emphasis on the proportionality test. Every restriction imposed by the government or the police against freedom and rights must have a legal basis as well as sound reasons, she said.

“The approaches should be made to a suitable extent without totally depriving the rights of the public, who should also be notified of the restrictions as early as possible,” said Yan.

She said the government’s emphasis on anti-terrorism and stability were cause for increasing press concerns.

“To the contrary, police officers have limited knowledge about human rights,” said Yen. “After the drafting of the Human Rights Ordinance, the administration just set up the Equal Opportunities Commission and the Office of the Privacy Commissioner of Personal Data in a desultory manner, without establishing a Human Rights Commission to promote rights protection and education.”

Yen said possible solutions included regular communications between media and police. “When journalists are hindered by officers, they should remain polite while questioning the restrictions in detail, such as: ‘When was the order made? Why was photographing allowed yesterday but not today?’”

She added that journalists should also call for changes when confronted by illegal rules and unreasonable laws.

(2)Reporting in private areas

A number of journalists have experienced obstructions by management officers of residential estates when collecting news inside housing estates or even in the streets. In allegedly "private areas", the officers have barred the way even when interviewees lived on the property.

Yen said that while the freedom of the press was upheld by the Basic Law - the mini constitution - allowing reporters to freely do reporting in public streets without government's consent, unauthorised entrance to private properties could bring civil liabilities.

Entering a residence or an office without the consent of owners or users could amount to trespass, according to Yen. Taking footage of a private apartment from public space - from the streets or from a high angle - does not count as trespassing, but the persons affected could sue on grounds of being a nuisance to stop such behaviour.

However, if property owners or users have given permission, security guards and management officers of the buildings cannot deny entry to reporters.

When taking pictures outside restaurants and shops in malls caught up in news events, photographers often face intervention from the staff of the shops involved. Strictly speaking, the lobby of a mall is a private area, but any expulsion of journalists by the shop staff should be made by the property management team. But photographers can always manage to get good pictures if they are experienced enough. “This is not simply about legal restrictions - sometimes photographers can finish their shooting without alerting anyone at all,” said Yen.

Is there any legal basis for luxury shops to bar photography in the name of upholding intellectual property rights? Yen said although taking pictures is a kind of copying, photographing the outside of a building is exempted under the relevant ordinance. Also exempted is the photographing of objects for news reporting - as it does not affect the author’s property rights. There is no infringement to property rights if the object concerned is just one of the many items photographed.

(3)Reporting in restricted zones

The riskiest reporting of all involves intrusion into restricted zones without permission, and there have been a few instances of litigation involving trespass into the airport and Lok Ma Chau.

The Airport Authority By-Law and the Shipping and Port Control Ordinance stipulate that members of the public - including journalists - have to seek permission to enter restricted zones.

In 1974, 11 journalists were found guilty of entering the airport’s restricted zones and fined HK$200, leaving permanent criminal records, as they covered a protest in the forbidden area by relatives of a group of Vietnamese refugees who were to be repatriated.

In 1993, seven photographers were also charged with trespassing the airport’s closed security zones to cover an air crash, but the charges were later reduced to a warning.

In 1996, 17 media workers including photographers, technicians and drivers, were charged for covering protests against the Provisional Legislative Council in the Lok Ma Chau control point without first securing a permit to enter the area. They were subsequently bound over.