Hong Kong Law Reform Commission

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Chapter 6 - Regulation under the Broadcasting Authority Ordinance

6.1 Media intrusion may be effected by the broadcast media. Some commentators have treated radio and television sets as “uninvited guests” in the family living room. Many people watch television and listen to radio as part of the normal things that they do on an ordinary day. They watch or listen to broadcast programmes on the usual channels at the usual times irrespective of what is actually being transmitted. They turn on the radio or television set for no particular reason or intention. Some do so merely because they cannot find anything else to do. The audience have no control over the contents of the programmes transmitted on a particular channel. Although they may switch off a television or radio, they cannot do so before the offending materials are transmitted.

6.2 Newspapers and magazines, on the other hand, are read by those who have some prior knowledge of the style and contents of the publications. The readers have to take an active step to acquire a copy of the publication by paying for it at the news-stand. Whereas the readers of a newspaper or magazine is a well-defined group of individuals with particular preferences and tastes, the listeners and viewers of broadcast programmes can be anyone who has access to a television set or radio. Compared to newspapers and magazines, television and radio are more intrusive. They are accessible to virtually everyone in a dwelling. The pervasiveness and intrusive nature of the broadcast media necessitate more stringent controls over the contents of broadcast programmes than those appearing in the press.

6.3 The broadcast media consists of two commercial television broadcasters, one Hong Kong-based satellite television operator, one subscription television broadcaster, two commercial radio broadcasters, and one public broadcaster, i.e. Radio Television Hong Kong. Whereas anyone could publish anything in a newspaper within the confines of the general law as long as he has complied with the procedural requirements under the Registration of Local Newspapers Ordinance (Cap 268), broadcasters are additionally subject to regulation under the Broadcasting Authority Ordinance (Cap 391). This is in line with the general practice in other jurisdictions where radio and television are subject to a greater degree of regulation than that applied to the press.[278]

6.4 In Hong Kong, all television and radio programmes (except those produced by Radio Television Hong Kong) broadcast by licence of the Chief Executive-in-Council. All licensed television and sound broadcasters in Hong Kong, including cable and satellite television broadcasters, are regulated by the Broadcasting Authority which is a statutory body created under the Broadcasting Authority Ordinance. These broadcasters are under a statutory obligation to comply with the Codes of Practice on programme, advertising and technical standards. Radio Television Hong Kong agreed in 1995 that it would abide by the Broadcasting Authority’s Code of Practice on programme standards and would subject itself to the jurisdiction of the Broadcasting Authority.[279]

6.5 The Broadcasting Authority consists of three public officers and not less than six nor more than nine lay members appointed by the Chief Executive. Its main functions are -

to make recommendations to the Chief Executive-in-Council on applications for and renewal of licences;

to monitor television and radio broadcasts in Hong Kong to ensure compliance with the relevant regulations, codes of practice and licence conditions;

to consider complaints about broadcasts relating to breaches of standards set out in the Codes of Practice and impose sanctions on the broadcasters if necessary; and

to issue and revise codes of practice on programming standards and advertising standards for television and radio broadcasts.

6.6 Upon receipt of a complaint, the Commissioner for Television and Entertainment Licensing, as the executive arm of the Authority, would investigate the complaint. If there is prima facie evidence of a breach of any of the provisions of the regulations, licence conditions or codes of practice, the complaint would be referred to the Complaints Committee which consists of not less than five members appointed by the Authority. The Committee will consider representations from interested parties and make recommendations to the Authority. The final decision on complaints rests with the latter.

6.7 If the Authority rules against a broadcaster, it may issue directions requiring the broadcaster to take such action as the Authority considers necessary.[280] The Authority may also impose a financial penalty on a broadcaster which is in breach of a Code of Practice, any licence conditions, or a direction issued by the Authority. Indeed, during the period from March 1990 to August 1997, the Authority had imposed financial penalties on a total of 18 occasions, accounting for 3% of the complaint cases dealt with by the Complaints Committee in that period.[281] A broadcaster who is aggrieved by a provision of a Code of Practice or direction issued by the Authority may appeal to the Chief Executive-in-Council. The decisions of the Broadcasting Authority are published in its monthly press releases and annual reports.

6.8 The Broadcasting Authority makes use of various mechanisms to ensure that the licensed broadcasters comply with the stipulated standards. These include:

selective monitoring of television and radio broadcasts;

meetings with senior management of the broadcasters to discuss areas of common interest or concern;

periodical surveys and public hearings during mid-term reviews of the licensees; and

public consultation through the Television Viewing Advisory Scheme, which comprises 18 district advisory groups and 5 advisory panels, with over 500 members.

6.9 There is also an advisory committee on Codes of Practice whose function is to review the codes of practice on programme, advertising and technical standards for both television and radio services. Although the Codes are very comprehensive in relation to programme standards, they do not contain any provisions on privacy. The main concerns of the Codes of Practice on Programme Standards are on decency and decorum in production; accuracy, fairness and impartiality in reporting; and violence and sex depicted in programmes. The focus of the Codes is on what is shown on the screen. This leaves off-screen matters such as the means by which information is obtained, unregulated. There are no procedures under the Broadcasting Authority Ordinance under which an individual may lodge a complaint against a broadcaster for having used objectionable means to obtain personal information for broadcasting, or for broadcasting personal information which the subject does not wish to be publicised.

6.10 Since the Broadcasting Authority is entrusted with the powers and functions to ensure that the licensees fulfil their responsibilities and obligations stipulated in the relevant legislation, licences and Codes of Practice, one convenient way to strengthen the protection of privacy against intrusion by broadcasters is to entrust the Authority with the additional task of monitoring whether the journalistic activities of the broadcasters are intrusive. The Authority may be empowered to consider and adjudicate upon complaints about unwarranted invasion of privacy in, or in connection with the obtaining of material in preparation for, the programmes subject to the Codes. This is a practical option because the framework constituted under the Broadcasting Authority Ordinance is well suited for dealing with complaints about media intrusion in an effective manner. We note that the RTHK Producers’ Guidelines issued in September 1998 contain privacy provisions.

6.11 Implementing this option requires that provisions prohibiting the unwarranted invasion of privacy by broadcasters be incorporated into the existing Codes of Practice. The Codes of Practice Committee could then keep the provisions under review. Compliance with the provisions could be monitored by the Television and Entertainment Licensing Authority and under the Television Viewing Advisory Scheme.

6.12 Adopting the framework set up under the Broadcasting Authority Ordinance to deal with intrusion by broadcasters is also desirable because the Authority is independent and impartial. The Chairman is neither appointed by nor chosen from the industry. The Codes are not drafted and enforced by the industry. The many provisions of the Ordinance, including those empowering the Authority to issue directions and impose financial penalty, would ensure that any privacy provisions to be incorporated in the Codes will be complied with and enforced if necessary. A good example of privacy provisions for broadcasters can be found in the Code on Fairness and Privacy adopted by the Broadcasting Standards Commission in the UK, the BBC’s Producers’ Guidelines, and the Programme Code of the Independent Television Commission in the UK.[282] Since the contents of broadcast programmes have for many years been subject to regulation under the existing framework, compliance with privacy provisions should not be an undue burden on broadcasters. They have been very successful in monitoring their news and newsreel programmes so as to ensure that they are of good taste, accurate, impartial, well-balanced and not sensational as required by the Code of Practice on Programme Standards.[283] We believe that they should have no difficulty taking privacy concerns into account when providing their service.

6.13 Any privacy provisions to be adopted by the Broadcasting Authority would apply to both news and entertainment programmes. Although a producer of news programme would be in a better position to argue that a particular intrusion or programme could be justified in the public interest and therefore not unwarranted, the defence of public interest would be available to all producers, regardless of the nature of the programmes for which they are responsible.

Recommendation 2

We recommend that the Broadcasting Authority adopts in its Codes of Practice on Programme Standards, provisions relating to (a) unwarranted invasion of privacy in programmes broadcast in Hong Kong, and (b) unwarranted invasion of privacy in connection with the obtaining of material for inclusion in such programmes.

6.14 We acknowledge that some of the privacy provisions to be adopted in the Broadcasting Authority’s Codes of Practice may overlap with the provisions of the Privacy Commissioner’s Code of Practice for the news media proposed in Chapter 5 above. But since the Broadcasting Authority’s privacy provisions would be directed at licensed broadcasters and focused on privacy issues specific to the broadcasting industry, and that the provisions would not be constrained by the Data Protection Principles in the Personal Data (Privacy) Ordinance, individuals aggrieved by the intrusive activities of a broadcaster would be likely to seek redress pursuant to the Broadcasting Authority Ordinance instead of the PDPO.

6.15 We have consulted the codes of ethics adopted by the news media and journalists associations in other jurisdictions, including Australia,[284] Mainland China,[285] Finland, Germany, Ireland, Italy, Russia, Spain, Sweden, Taiwan,[286] the United Kingdom and the United States[287]. Most of the codes of media ethics in European countries are accessible on the Internet.[288] Any code of practice which regulates the collection and use of personal data by the news media should take into account the codes in these jurisdictions as appropriate. We are particularly impressed by the privacy provisions in the codes adopted by the Press Council in Germany,[289] and those adopted by the Press Complaints Commission, the Broadcasting Standards Commission, the BBC and the Independent Television Commission in the United Kingdom. We consider that these codes provide a good starting point for the purposes of drafting a code regulating media intrusion.

6.16 We would add that the code should take into consideration both the consequences and the nature of an act and seek to harmonise the two in particular instances. Whilst the code should be flexible, it should not be so flexible as to be “a mere rationalisation for the personal preferences of those who invoke it.”[290]

Recommendation 3

We recommend that when drafting the privacy provisions, the Broadcasting Authority and the Privacy Commissioner for Personal Data should take into account the Press Code issued by the German Press Council, the Code of Practice ratified by the British Press Complaints Commission, the Code on Fairness and Privacy adopted by the Broadcasting Standards Commission in the UK, the Producers’ Guidelines issued by the BBC, and the codes of conduct adopted in other jurisdictions.

6.17 Since intrusion by broadcasters would be adequately dealt with under the Broadcasting Authority Ordinance, we consider in the next chapter what measures are required to effectively deal with the problem of intrusion by newspaper and magazine publishers.

[278] This difference in treatment has been justified on the following grounds: (a) The airwaves are a public resource. (b) The frequencies for broadcasting are limited. (c) It is costly to start a broadcasting station. (d) Radio and television can exert more influence on public opinion. They intrude into the home, are more pervasive, and are more difficult to control. (e) Pluralism and programme variety cannot be achieved in the broadcast media without regulation. See E Barendt, Broadcasting Law (1992), pp 4 – 9.
[279] Programme-makers of RTHK are additionally required to follow the RTHK Producers’ Guidelines (September 1998).
[280] Broadcasting Authority Ordinance (Cap 391), sections 9B and 20; Television Ordinance (Cap 52), section 34.
[281] Report of the Broadcasting Authority : September 1996 - August 1997, Appendix 10.
[282] Independent Television Commission, The ITC Programme Code - Summer 1995. The Code applies to all services licensed by the ITC and to certain foreign satellite programmes included in local delivery services licensed by the ITC. The privacy provisions of the RTHK Producers’ Guidelines (at paras 4.7 & 5.1) are not as comprehensive as those in the BBC Guidelines and the ITC Code.
[283] For example, paragraph 15 of the Commercial Television Code of Practice on Programme Standards (August 1997) provides that a news or newsreel service shall observe seven principles, including: (i) Good taste should guide the selection and presentation of news. Morbid, sensational, or alarming details not essential to factual reporting shall be avoided. News shall be televised in such a manner as to avoid unnecessary alarm”, and (ii) “Pictorial representation of news shall be carefully selected to ensure fairness and shall not be misleading or sensational.”
[284] J Hurst & S A White, above, Appendices 1 to 7.
[285] The Code of Ethics for Journalists in China adopted by the Standing Committee of the All China Journalists’ Association provides that journalists shall “uphold the civil rights provided for in the Constitution, not disclose private facts of another, not defame others, obtain news by lawful and straight-forward means, respect the declaration and legitimate requests of interviewees.” The Code is reproduced in Chen Gui-lan (ed), above, Appendix II.
[286] The Codes of Ethics for the press, television broadcast and radio broadcast ratified by the Taiwan News Council are reproduced in Ma Chi-shen, Hsin Wen Lun Li (Journalistic Ethics) (Hong Kong, 1997), Appendices 2 to 4.
[287] See J Black et al (1995), above.
[288] EthicNet, “Databank for European Codes of Journalism Ethics”, at <http://www. uta.fi/ethicnet/index.html>.
[289] At <http://www.uta.fi/ethicnet/germany.html>.
[290] E B Lambeth, above, 23.