The key difference between this action and previous attempts to remove content is that this is a civil injunction, not a criminal prosecution—meaning it is, at least legally speaking, closer to a copyright takedown request. A platform could arguably be less likely to take a reputational hit if it removes the content upon request.
Kwong believes this will indeed make platforms more likely to cooperate, and there have already been pretty clear signs to that effect. In one hearing in December, the government was asked by the court to consult online platforms as to the feasibility of the injunction. The final judgment this week says that while the platforms “have not taken part in these proceedings, they have indicated that they are ready to accede to the Government’s request if there is a court order.”
“The actual targets in this case, mainly the tech giants, may have less hesitation to comply with a civil court order than a national security order because if it’s the latter, they may also face backfire from the US,” says Eric Yan-Ho Lai, a research fellow at Georgetown Center for Asian Law.
Lai also says now that the injunction is granted, it will be easier to prosecute an individual based on violation of a civil injunction rather than prosecuting someone for criminal offenses, since the government won’t need to prove criminal intent.
The chilling effect
Immediately after the injunction, human rights advocates called on tech companies to remain committed to their values. “Companies like Google and Apple have repeatedly claimed that they stand by the universal right to freedom of expression. They should put their ideals into practice,” says Freedom House’s Wang. “Google and other tech companies should thoroughly document government demands, and publish detailed transparency reports on content takedowns, both for those initiated by the authorities and those done by the companies themselves.”
Without making their plans clear, it’s too early to know just how tech companies will react. But right after the injunction was granted, the song largely remained available for Hong Kong users on most platforms, including YouTube, iTunes, and Spotify, according to the South China Morning Post. On iTunes, the song even returned to the top of the download rankings a few hours after the injunction.
One key factor that may still determine corporate cooperation is how far the content removal requests go. There will surely be more videos of the song that are uploaded to YouTube, not to mention independent websites hosting the videos and music for more people to access. Will the government go after each of them too?
The Hong Kong government has previously said in court hearings that it seeks only local restriction of the online content, meaning content will be inaccessible only to users physically in the city. Large platforms like YouTube can do that without difficulty.
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