Dennis Lam says legal options are open if company refuses to make China’s national anthem first result in related searches
Numerous serious incidents happened at recent international sports events that are attributable to Google’s search results, which display a protest song above China’s national anthem. While the event organizers sincerely apologized for their “blunders”, Google did not.
In response to the Hong Kong Special Administrative Region government’s request to make China’s national anthem the first result in searches for certain keywords, Google defended the status quo by citing its policy, saying the company will not remove web results or manually determine individual rankings anywhere in the world, except for the specific reasons outlined in its global policy documentation.
Google’s reply was ignorant if not completely arrogant, as it did not address the key issue in the Hong Kong SAR government’s request — whether it is legal or legitimate to display a protest song ahead of the official national anthem of the People’s Republic of China when people are searching for related results on Google.
READ MORE: Google is obliged to ensure its search engine returns accurate information
The answer is obvious. Let us approach the issue from the constitutional and legal perspective in accordance with the basic principles of international public law.
‘One country, two systems’: Foundation of HKSAR
The Hong Kong Special Administrative Region was established on July 1, 1997, under the “one country, two systems” framework sanctioned by China’s Constitution.
The constitutional principle of “one country, two systems” is hence the foundation of the constitutional order of the HKSAR. It has two aspects. First, it affirms that Hong Kong is part of China; second, it affirms that the HKSAR manages local affairs with a high degree of autonomy (except in foreign affairs and defense) and will maintain its own governing and economic system, that being a system centered on capitalism which is distinguished from the socialist system on the Chinese mainland.
In accordance with the “one country” perspective, the HKSAR is part of China and therefore does not and should not have a national anthem of its own other than the official national anthem of the People’s Republic of China.
Constitutional responsibility to protect and promote the national anthem
The national anthem of the People’s Republic of China is the March of the Volunteers. It is a symbol and sign of the People’s Republic of China. The National Anthem Law of the People’s Republic of China was enacted by the Standing Committee of the National People’s Congress on Sept 1, 2017. It was then included in Annex III of the Basic Law of the HKSAR, a mechanism that allows certain national laws to be applied to Hong Kong based on Article 18 of the Basic Law.
The National Anthem Ordinance was enacted by the HKSAR’s Legislative Council on June 12, 2020, to provide for the playing and singing of the national anthem, and for the protection and promotion of the national anthem in Hong Kong. Since then, both the Legislative Council and the HKSAR government have fulfilled their constitutional responsibilities to implement the National Anthem Law of the People’s Republic of China locally in accordance with Article 18 of the Basic Law. In other words, Hong Kong has already completed its legislative procedure to make it a local law to protect and promote the national anthem in Hong Kong.
READ MORE: Google to pay $90m to settle legal fight with app developers
It follows that it is not only politically wrong but factually wrong of Google to fail to ensure the Chinese national anthem appears as a top search result for related keywords. To place any other song above China’s national anthem in related searches is inaccurate, erroneous and misleading; it not only suggests the service provided by Google is defective in this instance, but, as the analysis below suggests, may have serious legal consequences for Google’s operation in the HKSAR.
Violation of local law
The same mistake has been repeated at a number of international tournaments in recent months, where different organizers, after searching Google, have mistakenly played the song associated with the violent protests in 2019 in place of the national anthem of the People’s Republic of China.
The harm has been done and it continues. Yet it is technically possible for Google to place the right information as the top research result. The other ground Google raises in defending its decision is the nonavailability of a means to control organic web listings without manual manipulation. But Google did not explain why organic web listings must be respected or upheld when they are delivering the wrong information and messing up searches for the national anthem of a country.
As such, if Google refuses to rectify the search results as soon as possible and the status quo persists, Google is clearly violating the National Anthem Ordinance, which unambiguously requests that all individuals and organizations respect the national anthem, preserve the dignity of the national anthem, and play and sing the national anthem on appropriate occasions. Such continuous violations provide a strong basis for the HKSAR government to sue Google under Hong Kong laws.
As Google refuses to take more proactive steps to change the ranking of search results after discussing the matter with the HKSAR government, the HKSAR government shall consider initiating legal action against Google in a Hong Kong court.
The author is a Legislative Council member and Hong Kong deputy to the National People’s Congress.
The views do not necessarily reflect those of China Daily.