Freedom of press calls for faster route to Transport Department data

Journalists in Hong Kong, for many years, routinely accessed personal details of vehicle owners held on a government database as part of their newsroom investigations. There was no suggestion this carried legal risks. That all changed in 2021 when reporter Bao Choy Yuk-ling was fined HK$6,000 for making false statements when obtaining such information for the making of an award-winning documentary. Her convictions were overturned by the Court of Final Appeal in 2023, which found the journalist to have been the victim of a “grave and substantial injustice.” But the court, while ruling that access to the database for serious investigative journalism was permitted, also called for reform to ensure it was not used for gossip, sensationalism, stalking or marketing. New arrangements introduced by the government in January 2024, imposing tight restrictions on the ability of journalists to obtain details of vehicle owners, were held by a court to be lawful last week. The Court of First Instance judgment, in a case brought by the Hong Kong Journalists Association, concerned the first challenge to the new procedures. It raised valid questions about the nature of the scheme and the way in which it is implemented. As the judge, Russell Coleman, said, the case is of public importance and will have a significant impact. It involves the balancing of two competing human rights, free expression and privacy. The question of where to draw the line between them arises in many areas of life. The Transport Department should reflect on the judgment, even though it upheld the lawfulness of the scheme. The case revealed that there is much room for improvement. A simple, automatic online route is provided for people regarded as directly affected by the ownership of a particular vehicle. This includes those involved in the sale or purchase of a car, insurance claims, legal proceedings or recalls. The quick and easy route is not open to journalists. Instead, the media must use a more complex and demanding process, seeking permission to access personal data directly from the commissioner of transport. This has to be done in writing, providing detailed reasons for the request and supporting documentation. The commissioner then decides whether the public interest in granting the application outweighs that of keeping the vehicle owner’s personal data private. Senior Counsel Nigel Kat, representing the association, argued that considerable damage had been done by the policy to the “operations of the free press” and the ability of journalists to pursue their profession. The scheme, he submitted, was unlawful and unreasonable, involving a breach of the commissioner’s legal powers and a disproportionate restriction on free expression. Concerns were raised about the practical and ethical implications of journalists having to reveal details of their investigations to the authorities. The association also highlighted fears by the media that the subjects of their probes would effectively be tipped off by the government during the application process. Journalists are also worried about the authorities passing their own personal details on to the vehicle owners they are inquiring about. There were concerns, too, over the long time taken for requests from media organisations to be processed and the manner in which they have been rejected. The judge accepted there was “some force” in these arguments. But he found the scheme to be lawful as restrictions were needed to protect the privacy of vehicle owners and to ensure their details were not arbitrarily released. Coleman said journalists needed to provide detailed reasons for their requests so the commissioner could make an informed decision on whether releasing the information was sufficiently in the public interest. Only 16 applications were made on the grounds of public interest by July 17, 2024, 13 of which were by journalists. Nine were withdrawn and seven rejected, with none approved. One reporter succeeded with a public interest application in September 2024, obtaining the first registration dates of 12 vehicles related to suspected breaches of the government’s vehicle hiring service contracts. A follow-up request for full details of the vehicles was rejected. The number of applications and approvals in the early months of the scheme is significantly lower than in the past. In 2010, 2,800 certificates were granted to media organisations alone. It is likely journalists are being deterred from making requests because of the onerous nature of the process. Some of the requests took three to six months to process and one dragged on for nine. The judge said he was not suggesting the timing was “particularly commendable”. But he found the delays to be reasonable under the circumstances, taking into account the “teething problems” that might be experienced when a new policy is introduced. The ruling is disappointing from a media perspective. News is a perishable commodity. Journalists need access to information quickly, must protect their sources, and are right to be wary of providing details of their ongoing inquiries to the authorities. The hoops the scheme requires them to jump through make the process unappealing. A balance needs to be struck between free expression and privacy. But the Transport Department appears to lean on the side of privacy. It remains to be seen whether there will be an appeal or future challenges. But the government should focus on the “postscript” at the end of the judgment. Coleman said the period for “teething problems” had now ended and the processing of applications should be much faster. “Indeed, the balancing exercise involved ought not to require the most detailed of investigations,” the judge added. “It might be thought that an application made by a journalist with proper credentials, with a cogently explained journalistic reason given for the application, is one which can be assessed with some alacrity in most cases.” This should not take many weeks, he said. The final paragraph of the ruling is the most compelling. “The freedom of the press is a freedom which is exercised primarily for the benefit of other persons and society as a whole,” the judge said. That factor, he added, should be properly recognised in any assessment of an application. The scheme has been upheld. But the government should now handle requests from the media under it swiftly, efficiently and with due regard to the freedom of expression.