Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region/Schedule 4

Layout 2

Schedule 4

[r. 2]

Rules on Removing Messages Endangering National Security and on Requiring Assistance

Part 1
Preliminary

1. Interpretation

(1) In this Schedule—

access (接達) includes—

(a) access that is subject to a pre-condition (including the use of a password);

(b) access by way of push technology; and

(c) access by way of a standing request;

carriage service (傳輸服務) means a service for carrying communications by means of guided or unguided electromagnetic energy or both;

designated officer (指定人員) means an officer appointed under section 13 of this Schedule;

disabling action (禁制行動)—see section 5 of this Schedule;

electronic message (電子訊息) includes—

(a) a text, voice, sound, image or video message; and

(b) a message combining text, voice, sound, images orvideo;

electronic platform (電子平台)—see section 2 of this Schedule;

hosting service (主機服務)—see section 3 of this Schedule;

hosting service provider (主機服務商)—see section 3 of this Schedule;

intermediary service (中介服務)—see section 2 of this Schedule;

network service provider (網絡服務商)—see section 4 of this Schedule;

platform service provider (平台服務商)—see section 2 of this Schedule;

service provider (服務商) means—

(a) a platform service provider;

(b) a hosting service provider; or

(c) a network service provider;

specified police officer (指明警務人員) means a police officer at or above the rank of Assistant Commissioner of Police.

(2) For the purposes of this Schedule, an electronic message is published regardless of whether or not the message is published to the public or a section of the public.

(3) In this Schedule, a reference to the public or a section of the public is a reference to the public or a section of the public in Hong Kong.

2. Meaning of electronic platform, intermediary service and platform service provider

In this Schedule—

electronic platform (電子平台) means a platform for intermediary service that is provided in an electronic system;

Example—

(a) a website; and

(b) an online application.

intermediary service (中介服務) means—

(a) a service that allows end-users to access materials originating from third parties through a carriage service;

(b) a service of transmitting such materials to end-users through a carriage service; or

(c) a service of displaying, to an end-user who uses the service to make a search through a carriage service, an index of search results, each of which links that end-user to content hosted or stored at a location that is separate from the location of the index of search results;

platform service provider (平台服務商), in relation to an electronic platform, means a person that supplies an intermediary service for the platform.

3. Meaning of hosting service and hosting service provider

(1) For the purposes of this Schedule, if—

(a) a person (first person) hosts stored material that has been posted on an electronic platform; and

(b) the first person or another person provides an intermediary service for the platform,

the hosting of the stored material by the first person is taken to be the provision by the first person of a hosting service for the platform.

(2) In this Schedule—

hosting service provider (主機服務商), in relation to an electronic platform, means a person that supplies a hosting service for the platform.

4. Meaning of network service provider

(1) In this Schedule—

network service provider (網絡服務商) means a person that supplies an internet service, or a specified network service, to the public or a section of the public.

(2) In this section—

internet service (互聯網服務) means a carriage service that enables end-users to access the Internet;

specified network service (指明網絡服務) means a carriage service that enables end-users to access an electronic platform via a connection tunnelled through one or more electronic communication networks.

5. Meaning of disabling action

(1) For the purposes of this Schedule, a platform service provider takes a disabling action on an electronic message published on an electronic platform if the service provider—

(a) removes the message from the platform; or

(b) restricts or ceases access by any person, via the platform, to the message.

(2) For the purposes of this Schedule, a hosting service provider takes a disabling action on an electronic message published on an electronic platform if the service provider—

(a) removes the message from the platform;

(b) restricts or ceases access by any person, via the platform, to the message;

(c) discontinues the hosting service for—

(i) the part of the platform on which the message is published; or

(ii) the whole of the platform; or

(d) restricts or ceases access by any person to—

(i) the part of the platform on which the message is published; or

(ii) the whole of the platform.

(3) For the purposes of this Schedule, a network service provider takes a disabling action on an electronic message published on an electronic platform if the service provider—

(a) restricts or ceases access by any person, via the platform, to the message; or

(b) restricts or ceases access by any person to—

(i) the part of the platform on which the message is published; or

(ii) the whole of the platform.

Part 2
Requirements to Take Disabling Action on Electronic Message

6. Commissioner of Police may authorize designated officer to exercise powers

The Commissioner of Police may, with the approval of the Secretary for Security, authorize a designated officer to exercise one or more of the powers specified in section 7 of this Schedule if the Commissioner has reasonable ground for suspecting that—

(a) a person has published an electronic message on an electronic platform; and

(b) the publication is likely to constitute an offence endangering national security or is likely to cause the occurrence of an offence endangering national security.

7. Power to make requirements

(1) The powers under subsections (2), (3), (4) and (5) are specified for the purposes of section 6 of this Schedule.

(2) The designated officer may require the person who has published the electronic message on the electronic platform to remove the message from the platform before the deadline specified by the officer.

(3) The designated officer may require the platform service provider for the electronic platform to take a disabling action on the electronic message before the deadline specified by the officer.

(4) The designated officer—

(a) may notify a hosting service provider for the electronic platform of any requirement issued under subsection (3) to the platform service provider; and

(b) if it is not reasonably practicable to issue a requirement to the platform service provider under subsection (3), or the platform service provider fails to comply with a requirement issued under that subsection—may require the hosting service provider to take a disabling action on the electronic message before the deadline specified by the officer.

(5) The designated officer—

(a) may notify a network service provider of—

(i) a requirement issued under subsection (3) to the platform service provider; and

(ii) a requirement issued under subsection (4) to a hosting service provider; and

(b) if—

(i) the platform service provider fails to comply with a requirement issued under subsection (3), and it is not reasonably practicable to issue a requirement to a hosting service provider under subsection (4);

(ii) a hosting service provider fails to comply with a requirement issued under subsection (4); or

(iii) it is not reasonably practicable to issue a requirement to the platform service provider under subsection (3) or to a hosting service provider under subsection (4),

may require the network service provider to take a disabling action on the electronic message before the deadline specified by the officer.

8. Requirement ceasing to have effect

A requirement issued by a designated officer to a person or service provider under section 7 of this Schedule ceases to have effect if the designated officer notifies the person or service provider that another person has removed the electronic message from the electronic platform, or has taken a disabling action on the message.

Part 3
Requirements to Provide Identification Record or Decryption Assistance for Electronic Message

9. Power to make requirements

(1) A magistrate may issue a warrant authorizing a police officer to exercise the power specified in subsection (3) if the magistrate is satisfied by information on oath that—

(a) there is reasonable ground for suspecting that—

(i) a person has published an electronic message on an electronic platform;

(ii) the publication is likely to constitute an offence endangering national security or is likely to cause the occurrence of an offence endangering national security; and

(iii) a service provider has in its possession, custody or control an identification record for the message, or may provide decryption assistance in respect of the message; and

(b) it is necessary to obtain the record or assistance from the service provider for the investigation, containment or prevention of the offence.

(2) However, a specified police officer or a police officer authorized by the specified police officer may exercise the power specified in subsection (3) without warrant if the specified police officer is satisfied that—

(a) there is reasonable ground for suspecting that—

(i) a person has published an electronic message on an electronic platform;

(ii) the publication is likely to constitute an offence endangering national security or is likely to cause the occurrence of an offence endangering national security; and

(iii) a service provider has in its possession, custody or control an identification record for the message, or may provide decryption assistance in respect of the message;

(b) it is necessary to obtain the record or assistance from the service provider for the investigation, containment or prevention of the offence; and

(c) a delay caused by an application for a warrant under subsection (1) is likely to defeat the purpose of obtaining the record or assistance, or for any reason it is not reasonably practicable to make the application.

(3) For the purposes of subsection (1) or (2), the police officer may require the service provider to provide the identification record or decryption assistance (as the case requires).

(4) For the purposes of this section, an identification record for an electronic message published on an electronic platform is a record containing information about the identity of the person who has published the message on the platform.

Part 4
Non-compliance

10. Non-compliance of person publishing electronic message

(1) If a person fails to comply with a requirement issued under section 7(2) of this Schedule, the person commits an offence and is liable on conviction on indictment to a fine of $100,000 and to imprisonment for 1 year.

(2) It is a defence for a person charged under subsection (1) to show that the person had a specified excuse for the failure to comply with the requirement.

(3) A defendant is to be taken to have shown that the defendant had a specified excuse for the failure if—

(a) sufficient evidence is adduced to raise an issue that the defendant had such an excuse; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(4) For the purposes of this section, a person had a specified excuse for a failure to comply with a requirement if it was not reasonable to expect the person to comply with the requirement because the technology necessary to comply with the requirement was not reasonably available to the person.

11. Power to remove messages from platform

If a magistrate is satisfied by information on oath that—

(a) a person fails to comply with a requirement issued under section 7(2) of this Schedule to remove an electronic message from an electronic platform; and

(b) it is necessary to remove the message from the platform to safeguard national security,

the magistrate may issue a warrant authorizing a police officer to seize an electronic device of the person, and to take any reasonably necessary action on the device, for removing the message from the platform.

12. Non-compliance of service provider

(1) If a service provider fails to comply with a requirement issued under section 7 or 9(3) of this Schedule, the service provider commits an offence and is liable on conviction on indictment to a fine of $100,000 and to imprisonment for 6 months.

(2) It is a defence for a service provider charged under subsection (1) for a failure to comply with a requirement issued under section 7 of this Schedule to show that the service provider had a specified excuse for the failure.

(3) A defendant is to be taken to have shown that the defendant had a specified excuse for the failure to comply with a requirement issued under section 7 of this Schedule if—

(a) sufficient evidence is adduced to raise an issue that the defendant had such an excuse; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(4) For the purposes of this section, a service provider had a specified excuse for a failure to comply with a requirement if it was not reasonable to expect the service provider to comply with the requirement because—

(a) the technology necessary for complying with the requirement was not reasonably available to the service provider; or

(b) there was a risk of incurring substantial loss to, or otherwise substantially prejudicing the right of, a third party.

Part 5
Miscellaneous

13. Designated officer

The Secretary for Security may appoint a public officer as a designated officer for the purposes of this Schedule.

14. Extra-territorial application

(1) A power is exercisable under section 7(2) of this Schedule regardless of whether or not the electronic message is posted within or outside Hong Kong on the electronic platform.

(2) A power is exercisable under section 7(3) of this Schedule regardless of whether or not the intermediary service is provided within or outside Hong Kong.

(3) A power is exercisable under section 7(4)(b) of this Schedule regardless of whether or not the hosting service is provided within or outside Hong Kong.

(4) A power is exercisable under section 7(5)(b) of this Schedule in relation to a network service provider of an internet service or specified network service (within the meaning of section 4) if the service is available to an enduser in Hong Kong, regardless of whether or not the service is provided within or outside Hong Kong.

(5) A power is exercisable under section 9(3) of this Schedule regardless of whether or not the identification record or decryption key is located within or outside Hong Kong.

15. Requirement etc. in writing

(1) A requirement or notification under this Schedule must be in writing.

(2) For the purposes of this Schedule, a requirement or notification is issued to a person if—

(a) it is sent to the person at an address (including an email address and fax number) provided by the person for receiving correspondences; or

(b) where no such address is provided by the person, it is sent by an electronic message to the person.

16. Immunity from civil liability

A service provider who complies with a requirement issued under section 7 of this Schedule does not incur any civil liability, whether arising in contract, tort, equity or otherwise, to any person by reason only of that compliance.