On 31 October 2019, the Government obtained an ex parte injunction against persons who wilfully disseminate, circulate, publish or re-publish on any Internet-based platform or medium any material that promotes, encourages or incites the use or threat of violence which is intended or likely to, unlawfully, cause bodily injury to any person or damage to any property situate in Hong Kong. The ex parte injunction also restrained persons from assisting, causing, counselling, procuring, instigating, inciting, aiding or abetting others to do the aforesaid acts. The basis of the injunctive relief sought was the tort of public nuisance and lending assistance to the criminal law.
On 15 November 2019, the High Court heard and determined the Internet Society of Hong Kong Ltd’s (“ISOC”) challenge of the ex parte injunction in SJ v Persons unlawfully and willfully conducting themselves in any of the acts prohibited under paragraph 1(a) and (b) of the Indorsement of Claim [2019] HKCFI 2809.
The Honourable Mr Justice Coleman held that in light of the evidence of widespread incitement of the use of violence to target different sectors of society, there is a serious issue to be tried that the relevant online materials create a state of affairs that endanger the lives, safety, health, property or comfort of the public as a whole. In that respect, damages is not an adequate remedy as damage caused is not quantifiable.
On the other hand, it was held that there is little real prejudice if any given the acts restrained are in all likelihood in themselves criminal activities. As to the potential curtailment of freedoms of speech and expression, the Court reminded itself that those freedoms are not absolute and always subject to countervailing considerations. In this case, the risks engendered by allowing those freedoms. In the circumstances, the test of proportionality was satisfied.
In respect of the grant of the injunction as an aid to criminal law, his Lordship considered that the situation of widespread violence and vandalism calls for the curtailing of any encouragement, promotion and incitement of the same through internet-based platforms and media. This satisfies the guiding principles for granting an injunction in aid of criminal law.
Insofar as the ISOC challenged the wording of the ex parte injunction for being overbroad, the judge accepted the Government’s contention that strictly speaking the ex parte injunction would only catch those who willfully makes the restrained publications coupled with the intention to cause the harm described. In respect of accessorial liability, such would only be established if the accessory can be shown to have the knowledge that the person whom they assist is in contravention of the restraint. Nevertheless, minor amendments were made to the ex parte injunction to link the relevant publication to its purpose.
As to the implementation of the varied injunction order, the Court observed that the injunction order does not require instantaneous censorship by platform operators or any obligation to positively search for and filter out those information or messages that might be in breach of the order. It is only if they are put on notice of such posts and fails to remove them that they would attract accessory liability, since from that point onwards they would be in a position to remove the facilitation of wrongdoing.
Nigel Kat SC, Benson Tsoi and Simon Young appeared for ISOC, instructed by Daly & Associates.