Hong Kong High Court declines to force Big Tech to ban protest song

Hong Kong's High Court has rejected a government bid to ban online dissemination of a protest song that is often mistaken as the Special Administrative Region's national anthem.

The offending tune, "Glory to Hong Kong," emerged in 2019 during protests against a law that allowed Hong Kong residents be extradited to China. The song advocates for the liberation of Hong Kong and unity to fight for freedom.

Hong Kong does not have a national anthem of its own. As a Special Administrative Region (SAR) it uses China's national anthem, "March of the Volunteers."

Yet Google searches for "Hong Kong's National Anthem" list "Glory To Hong Kong" and articles about it as top results.

That result has seen the protest song played at multiple sporting events, leaving pro-Beijing individuals more than a bit miffed.

Hong Kong's government tried to have Google produce different search results, but the ads giant responded that its search answers were based on fully automated algorithms and it only removed content considered to be illegal.

Hong Kong's government then took matters into its own hands by trying to use the dark art of search engine optimization (SEO) to push the song down Google's rankings. It achieved limited success with that approach.

But that wasn't enough for the territory's Department of Justice, which in June sought to ban the online distribution or broadcasting of "Glory to Hong Kong." An injunction application claimed the song contravened China's National Security Law by inciting secession and sedition.

While the injunction request did not name any specific entities or companies, it included links to 32 videos affiliated with the song on YouTube.

After the injunction was filed, the tune started disappearing from online services including YouTube and Spotify. Spotify said it removed the song at the behest of distributors, rather than Hong Kong authorities.

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Last Friday, Hong Kong's High Court conceded there was "little doubt" that the song was "designed to arouse anti-establishment sentiment and belief in the separation of Hong Kong from the PRC." The court cited the comments on the videos, as well as lyrics, description and typical setting of performance as evidence of its intent.

"The song was sung by protesters in at least 413 public order events between 2019 and 2022 during some of which 'Hong Kong independence' or other seditious slogans were chanted," according to court documents.

However, Judge Anthony Chan ultimately ruled that banning the song would produce "chilling effects," and would result in those abiding lawfully would distance themselves from any lawful acts with the song for fear of severe consequences.

Left unsaid was that a ruling in favor of the government's request could have economic consequences. Many Big Tech companies have reduced their presence in China, but regard Hong Kong as a friendlier jurisdiction and a more suitable place to do business. While censorship still does persist in the SAR, Hong Kong's internet has remained mostly open – unlike China's.

Meanwhile, Chinese president Xi Jinping gave directions earlier this month to further isolate China's internet with a Beijing-supervised "security barrier."

Hong Kong's government may appeal the decision, but has not yet said whether it will do so. Either way, the battle over "Glory to Hong Kong" has had some unintended consequences.

"Ironically, the publicity over this application has apparently generated additional interest in the song," wrote Chan.

Indeed, the attempted ban reportedly caused the song to become number one on Apple's Hong Kong iTunes Store last month. ®