Marcelo Thompson (University of Ottawa – Centre for Law, Technology and Society; University of Ottawa – Common Law Section) has posted Standards Setting, National Security, and the Responsibility of Technological Platforms in Hong Kong: Understanding Article 139 of the Hong Kong Basic Law (Final Research Report, March 2025) on SSRN. Here is the abstract:
This Report provides the first comprehensive examination of Article 139(2) of the Hong Kong Basic Law, which grants the HKSAR Government the power to, on its own, decide on the technological standards and specifications applicable in Hong Kong. Despite the profound importance of this provision in times of growing platform and AI dominance, it has received virtually no substantive attention in Hong Kong constitutional scholarship. This Report addresses this critical gap by exploring the provision's historical, political, and technological foundations, ultimately proposing a framework for its mobilization in furthering the public interest in Hong Kong's information environment.
The Report makes several original contributions, of both conceptual and applied nature. First, it challenges conventional readings of Hong Kong's autonomy that interpret 'on its own' in adversarial terms, demonstrating instead how the power to decide on standards must be understood within the coherent framework of 'One Country, Two Systems.' Second, drawing on Hermann Heller's work, it advances an ethical conception of sovereignty grounded in ordinary decision-making for the public good, explicitly rejecting Carl Schmitt's exception-based model that has influenced recent Chinese constitutional thought in relation to Hong Kong. This ethical view presents sovereignty not as arbitrary power but rather as the expression of public reason through regular, participatory governance.
Third, the Report reconceptualizes technological standards as existing along a continuum between the material/technological and the normative/legal domains. This hybrid character means the Government's power under Article 139(2) encompasses interventions ranging from embedded technological choices to more broadly normative regulations. Crucially, this understanding reveals how technological platforms exercise their own form of sovereignty by embedding normative choices in algorithms and protocols, thereby challenging state authority in unprecedented ways and inviting new forms of response.
Fourth and significantly, the Report proposes the reorientation of Hong Kong's regulatory approach to technology, from a predominantly national security focus toward broader public interest considerations. Through comparative analysis of regulatory frameworks in the EU, US, and Mainland China, it demonstrates how Hong Kong's current reactive, security-centered approach paradoxically weakens rather than strengthens governance capacity. Instead, it advocates for a proportionate, graduated approach featuring voluntary standards, codes of practice, and participatory mechanisms that could address public interest concerns before they escalate into security issues.
Practical recommendations include establishing a centralized standards authority to coordinate Hong Kong's currently fragmented approach, developing an inventory of applicable standards, and creating a framework for platform responsibility that avoids both American laissez-faire and the EU's stricter forms of responsibility. In line with early scholarly contributions by the author on the topic, the Report proposes an "efforts-based" liability system that would incentivize responsible platform behavior while providing flexibility for honest mistakes — as well as unifying rather than creating competition between regulatory and liability-focused interventions.
This work is particularly timely given Hong Kong's widening regulatory gap compared to rapidly evolving frameworks both in the Mainland and globally. As the Report demonstrates, the power to decide on standards represents not merely a technical competence but a cornerstone for the governance of Hong Kong in the digital age. Its proper exercise could enable Hong Kong to navigate its unique position between local, national, and global interests while maintaining its character as an open, international hub. Ultimately, Article 139(2) emerges not as an instrument of control but as an opportunity for innovative, ethically-grounded technological governance suited to Hong Kong's distinctive circumstances.