The Hong Kong Legislative Council unanimously passed the Safeguarding National Security Bill recently. Both the Chinese National People’s Congress Standing Committee and the Hong Kong government have stressed that this enactment is a constitutional duty conferred on the government under Article 23 of the Hong Kong Basic Law, which serves as Hong Kong’s mini-constitution. The previous 2020 National Security Law did not cover the theft of state secrets, which is a crucial area of national security offenses. However, it is now specified as an activity that the Hong Kong government is obliged to criminalize through local legislation to fulfill its constitutional duty.

This explainer focuses primarily on “state secrets” and the “public interest defense” under the bill. It will first outline the definitions provided by the bill and then discuss the idealistic formulation of these two elements based on principles derived by international law scholars from around the world.

Part 4 Division 1 of the bill provides offenses in connection with State Secrets. Articles 32, 33, and 35 establish offenses against the unlawful disclosure and possession of state secrets when leaving the Hong Kong Administrative Region (HKSAR), committed by public officers. Additionally, Articles 30 and 31 of the bill stipulate that:

a person (emphasis added) commits an offence … if the person – (a) knowing that any information, document or other article is or contains a state secret; or (b) having reasonable grounds to believe any information, document or other articles is or contains a state secret, and with intent to endanger national security, and without lawful authority, possess (art 30), acquires (art 31) or disclose (art 33(6)) the information, document or article.

What constitutes a “state secret” under the new law?

According to the interpretation section (Article 28), the following fall under the category of state secrets:

• a secret concerning major policy decisions on affairs of China or the HKSAR;
• a secret concerning the construction of national defence of China or concerning a Chinese armed force;
• a secret concerning diplomatic or foreign affair activities of China, a secret concerning external affairs of the HKSAR, or a secret that China or the HKSAR is under an external obligation to preserve secrecy;
• a secret concerning the economic or social development of China or the HKSAR;
• a secret concerning the technological development or scientific technology of China or the HKSAR;
• a secret concerning activities for safeguarding national security or the security of the HKSAR or for the investigation of offences; and
• a secret concerning the relationship between the Central Authorities and the HKSAR (including information on affairs relating to the HKSAR for which the Central Authorities are responsible under the Basic Law).

The definition of a state secret under the original Official Secrets Ordinance was modeled after the UK Official Secrets Act 1989. Both included information relating to security and intelligence, defense, international relations, crime and special investigative powers, information resulting from unauthorized disclosures or entrusted in confidence, and information entrusted in confidence to other States or international organizations.

Justifying the expanded definition of state secrets in the bill, the government referenced “communicating safeguarded information” under the Canadian Security of Information Act and “obtaining or disclosing protected information and trade secrets” under the UK National Security Act 2023. The government suggested that sensitive information concerning other important fields of national security may also be regarded as “state secrets” as long as improper disclosure of such information is likely to prejudice national security interests. Nonetheless, the two provisions were particularly enacted to combat espionage that involves a specific actus reus element of communicating to a foreign entity (the Canadian version) or of conduct carried out for or on behalf of a foreign power (section 31 of the UK National Security Act 2023). The bill, on the other hand, adopts this wider version of the state secret definition and at the same time creates a wider breadth that only knowledge and possession, acquisition, or disclosure are sufficient to establish guilt.

Furthermore, writing for Witness HK, HKU Law Professor Albert HY Chen estimated that to determine whether a document or information is a state secret, Article 47 of the 2020 National Security Law applies. In other words, the Chief Executive has the power to issue a certificate to Hong Kong courts to indicate if a document or information is a state secret.

Does this align with the general understanding of state secrets under international law?

Article 2 of the bill states that the International Covenant on Civil and Political Rights, including freedom of speech (article 19 of ICCPR), continues to be protected in accordance with the law. The Hong Kong Bill of Rights Ordinance equally safeguards freedom of opinion and expression. Besides the right to hold opinions without interference, freedom of expression also encompasses the right of access to information. Article 16(3) further outlines that this right is subject to certain restrictions for the protection of national security. Therefore, in crafting legislation on national security offenses, it is crucial to strike a balance between freedom of expression and national security interests.

In elaborating on freedom of expression, the United Nations Human Rights Committee (UNHRC) noted that using national security laws to suppress or withhold information of legitimate public interest that does not harm national security is incompatible with subsection 3. The UNHRC also remarked that “including in the remit of such laws such categories of information as those relating to the commercial sector, banking, and scientific progress” is generally inappropriate.

In addition to the UNHRC and the ICCPR, legal scholars in international law have endeavored to define legitimate national security grounds further, aiming to strike a balance between protecting national security and preserving freedom of expression. The Johannesburg Principles: National Security, Freedom of Expression, and Access to Information (Johannesburg Principle) assert that a legitimate restriction is limited to those whose genuine purpose and demonstrable effect aim to protect a country’s existence or its territorial integrity against the use or threat of force, whether from an external or internal source. The Johannesburg Principles also specify that the disclosure of information may be punishable if (1) the disclosure actually harms or is likely to harm a legitimate national security interest or (2) the harm from disclosure outweighs the public interest in knowing the information.

Although the Johannesburg Principles establish a high threshold for national security interests to be deemed legitimate, they may not be widely recognized in practice. In fact, Toby Mendel, Law Programme Director of ARTICLE 19, Global Campaign for Free Expression, observed that security logic has dominated to the detriment of freedom of expression since the 9/11 attack. This is evident in the fact that even countries renowned for promoting and respecting human rights have significantly restricted freedom of expression in the aftermath of terrorist attacks.

What is the “public interest” defense under the Hong Kong law?

Recognizing the importance and complexity of balancing the protection of freedom of expression with national security interests, it is encouraging to see that the Hong Kong government has incorporated a “specified disclosure” defense, also known as the “public interest” defense. Article 29 of the bill stipulates that if the purpose of disclosure is to reveal either (1) circumstances seriously affecting the Government’s performance of its functions in accordance with the law or (2) a serious threat to public order, public safety, or public health, then the disclosure must be limited to what is necessary for revealing the matter. Moreover, the public interest served by the disclosure must outweigh the public interest served by not making the disclosure.

Further elucidating the scope of the specified disclosure defense, the Bill Committee on the Safeguarding National Security Bill noted [on page 26] that the defense would need to meet a very high threshold and stringent conditions. Additionally, the burden of proof rests on the defendant to prevent abuses.

What is the ideal formulation of “public interest” defense under international law?

Apart from the Johannesburg Principles, the Global Principles on National Security and the Right to Information (the Tshwane Principles) also assert that the burden of demonstrating the legitimacy of any restrictions should fall on the public authority seeking to withhold information. Moreover, in fulfilling this burden, the authority is obligated to provide specific, substantive reasons to support its claims.

The Tshwane Principles also delineate eight categories of information that should enjoy a high presumption of overriding interest in favor of disclosure. In addition to the two categories recognized by the current statutory defense, the following should also be protected by the public interest defense:

• violations of international human rights and humanitarian law;
• safeguards for the right to liberty and security of person, the prevention of torture and other ill-treatment and the right to life;
• decisions to use military force or acquire weapons of mass destruction;
• surveillance; and
• financial information.

This explainer has outlined the formulation adopted by the Hong Kong government and the idealistic principles provided by international legal scholars. As mentioned, these principles might not be widely recognized in practice, but they essentially illustrate legal scholars’ expectations regarding the protection of freedom of expression in the context of national security interests. Therefore, the extent to which Hong Kong courts are willing to interpret the bill in line with international human rights law and principles remains to be seen.

The author, a legal scholar from Hong Kong, has requested anonymity due to security concerns.