Hong Kong Law Reform Commission

Chapter 7 - Further measures to regulate press intrusion

• Code of ethics for the news media
• Press code on privacy matters
• Independent body to regulate press intrusion
• Pros and cons of establishing a mechanism by law to regulate press intrusion

Code of ethics for the news media[291]

7.3 A code of ethics is often seen as representing the conscience of a profession and its members. Louis Day explains why a system of ethics is essential to the well-being of society:[292]

(a) It builds trust and co-operation among individuals in society. If the media fails to live up to society’s moral expectations, confidence in journalism will be eroded and the media will not be able to discharge their social responsibilities.

(b) It serves as a “moral gatekeeper” in apprising society of the relative importance of certain moral values. It identifies those practices where social disapproval is significant enough to render them immoral.

(c) It acts as a moral arbitrator in resolving conflicting claims based on individual self-interest.

(d) It clarifies for society the competing values and principles inherent in emerging and novel moral dilemmas.

7.4 An editorial in Hong Kong Economic Journal suggests that a society without ethics is difficult to sustain even though it is governed by the rule of law:[293]

“Hong Kong is an amoral society. Although mass culture pays attention to law, it rejects discussion on ethics. Our church, school, politicians, public opinion, social work organisations etc are clearly not bold enough to make known their positive stance on the question of ethics. Maybe the ethics pendulum of our society has not yet followed the footsteps of many developed countries in the West and swung back from the extreme of amorality. Such being the case, the rule of law is bound to continue to be flimsy and powerless.”

7.5 A code of ethics falls between law and personal values. Kaplar and Maines explain the differences between ethics and law:[294]

“Ethics is the process of moral decisionmaking, of moral choice. It exhorts us to do the right thing because doing so is virtuous and right in itself (as Kant might say). Ethics strives for the ideal. Law, on the other hand, is imposed on the individual from the outside; it is not developed internally. ... In the former case, choosing to act legally is motivated by fear - the desire to avoid punishment. Choosing to act ethically, however, is motivated by virtue - the desire to strive for a moral ideal. To put it another way, when one acts legally one is choosing not to fall below a certain minimum standard of conduct. When one acts ethically one is choosing to act according to the highest standard of conduct.”

Press code on privacy matters

7.6 We appreciate that journalistic ethics are matters for the journalistic profession to decide. But since press conduct may impinge on the right of privacy enjoyed by members of the public, it is in the public interest that a code of conduct (or code of practice) on privacy matters be put in place to regulate press intrusion. That said, some have argued that a formal code of conduct for the media does not serve any useful purpose. The reservations about codes are several:[295]

a) they are too general;
b) their adoption was largely for public relations purposes;
c) they are hypothetical if they do not at the same time cover publishers and broadcasters;
d) they do not provide enforcement mechanisms; and
e) they foster a false sense of purity.

7.7 However, a code of conduct would provide “a general guide to good practice to which proprietors, editors and journalists should be prepared to subscribe and which members of the public would find valuable as an indication of what they are entitled to expect from the industry.”[296] Sir David English, the Chairman of the Code Committee of the UK Press Complaints Commission, asserts that a clear and practical code for the industry is crucial to editors, the public, and members of the Commission for the following reasons:[297]

a) it gives the editors a firm set of ground rules, rooted in best practice and robust common sense, on which they and their competitors should operate;
b) the public will know what standards to expect from newspapers and magazines, and what their rights are when complaining; and
c) members of the Commission may judge the complaints brought to them against the code.

7.8 If journalists treat themselves as professionals, it is an anomaly that the press does not have an industry-wide code of conduct. Where journalism is not regarded as a profession, having an industry-wide code of conduct would no doubt raise their social status to that of a profession. The Calcutt Committee remarks that:[298]

“Any system whereby protection or redress for the individual is dependent upon the discretion of the editor (who cannot be sure that a rival will not run a story that he agrees not to publish) or individual journalists is open to criticism. The pressures of competition, the ethos of the newspaper, the character of the editor or journalist, the identity of the individual and the nature of the story may all affect the outcome, with serious consequences for the individual. In the absence of any public editorial commitment to a detailed code of practice, a complainant has no assurance that any representations will succeed.”

7.9 A press code on privacy matters would not form part of the law. It would set out the standards that are over and above the legal obligations of journalists and publishers. Such a code would not strive for the moral ideal by setting out the highest standard of conduct, but would embody values which most, if not all, members of the journalistic profession accept as binding upon themselves. Where the information obtained by a journalist is freely available in the public domain and the story to be reported is about a vulnerable person, the code would prompt the journalist to think whether the information should be used despite the possible harm to that person. Hence even though material about a child or a victim of crime is revealed in a court case, and that it is lawful for the press to report material disclosed in court proceedings, a journalist would nevertheless feel obliged to ponder for a moment whether it is necessary to name the child or victim in the story, and whether doing so would make him even more vulnerable. In other words, a code of conduct provides extra protection for vulnerable parties on top of that provided by the law. Decisions to publish private information would not be dictated by the self-serving interests of the press, but would have to be justified in terms of the provisions of the code. A journalistic code of conduct therefore keeps the news media alert to its responsibilities to gather and report news fairly and lawfully.

7.10 A press code on privacy matters would be of benefit to the industry because there would then be a level playing field for all newspaper and magazine publishers. The code would also have the benefit of imposing the same standards on all ranks of the media. The performance of all parties who are involved in the collection and dissemination of news, including press photographers, reporters, news executives, chief editors and proprietors, would be measured against the same standards set out in the code. Such a code may also be made part of the employment contracts of journalists. This would not only enable newspaper proprietors and editors to discipline journalists who have been found to offend the code, but would also protect journalists from unfair treatment by editors or proprietors when the latter instructed the former to act in breach of it.

7.11 Although the Hong Kong Journalists Association has found it necessary to issue a code of ethics for its journalists members, the Newspaper Society of Hong Kong has not issued any code of practice for its members. Newspaper proprietors and publishers in Hong Kong do not subscribe to any code of practice for the press. However, a newspaper proprietor, as the person having ultimate control over the activities of its newspaper, should bear the responsibility for any unwarranted intrusion by his staff. Editors who have been trained in journalism might claim that they should have autonomy in controlling the contents of the newspaper and the activities of journalists, but not all proprietors in Hong Kong subscribe to this principle and give full discretion to the editors. Proprietors may interfere with the editorial process and exercise personal control in the day-to-day running of the newspaper. A proprietor who adopts an interventionist approach might put undue pressure on journalists and editors if he does not abide by the professional standards of the journalistic profession.

7.12 Apart from proprietors, editors could also influence the way in which a journalist obtains or presents a news story. They might instruct journalists to act in a way which would constitute a breach of media ethics. As front-line journalists normally act on the instructions of an editor or proprietor, they would welcome a level playing field so that they need not be ruthless in carrying out their duties in order to meet the excessive demands of their boss or to outperform their colleagues in other newspapers. Nevertheless, there might be instances where a journalist intruded into privacy without authority from his editor, believing that the latter would use the material obtained by such intrusive means. Proprietors, publishers, editors and journalists should therefore abide by the same professional standards set out in any press code on privacy matters.

7.13 We note that the report on privacy published by the Secretary-General of the United Nations in 1976 provides, inter alia, that “States shall favour the establishment of journalists’ codes of ethics including provisions concerning respect for the privacy of the individual”.[299]

Independent body to regulate press intrusion

7.14 Many professions that have dealings with the public are under a statutory duty to regulate the professional conduct of their members by way of disciplinary procedures.[300] Their members are invariably bound by a Code of Conduct approved and enforced by the professional body to which they belong. Any member of the profession who is accused of professional misconduct would be subject to disciplinary procedures in accordance with the rules adopted by the relevant professional body.

7.15 A survey conducted in 1990 revealed that about half of the journalists in Hong Kong have not received professional education in journalism.[301] Insofar as journalists regard themselves as professionals and are exercising the press freedom guaranteed under the Basic Law, it is an anomaly that they are not subject to any regulatory measures which would normally be applicable to a profession. In an Asian Executives Poll conducted by the Far Eastern Economic Review, 65% of the business executives in Hong Kong responded that press freedom is important to economic growth. But exactly 50% also stated that the Government should have “limited control” over the media.[302] A news ombudsman rightly observes that there is “no reason why the press - with all its influence and power over the lives and minds of the people - should not be subject to the same kind of scrutiny as is focused on other powerful segments of the community: the government, military, business, arts, religion, finance and all the rest.”[303]

7.16 Many professions are subject to regulation not only because of the need to regulate the relationship among their members but also because of the need to protect the interest of the general public. In the context of press intrusion, the question of regulation arises because of complaints from the public as well as grievances from victims of press intrusion concerning the conduct of the press. To the extent that press intrusion impinges on the privacy right of members of the public, the general public have a stake in seeing that the press is operating in a manner that is consistent with the principles underlying Article 19 of the ICCPR. It is therefore in the public interest to regulate press intrusion despite the many important functions of a free press. Hence, an independent body overseeing a press code on privacy matters should be set up to define the boundaries of acceptable behaviour so that intrusive conduct which exceeded the bounds of reasonableness could be made the subject of an investigation.

7.17 As mentioned in Chapter 4, the idea of setting up a news council gains more support since the public uproar over the incident involving the widower. More and more people perceive the need for a self-regulatory body for the press. Both the HKJA and the News Executives’ Association have declared that they would raise no objection to establishing a news council provided that the Government is not involved. A number of academics also find this option attractive. Johannes M M Chan of the University of Hong Kong perceived the need to set up a press council as early as in 1988. He said:

“While I personally would strongly support any resistance against government control of the press, the press should, on the other hand, be expected to ensure and maintain the highest standard of professional ethics. I believe there is a strong need for a local code of ethics, which can guide the journalists in discharging their duties. A code of ethics should go hand in hand with a Press Council, which would be entrusted with the duties of ensuring the compliance of the code, updating the code and giving practical advice and directions from time to time. To ensure its impartiality, the Press Council should consist of members from the profession as well as members of the public. Every respectable profession must have some internal mechanism to ensure the standard and integrity of its members; the press, as a profession, should be no exception. It should not be seen as a control or interference with press or editorial freedom, but, to the contrary, it is an ultimate guarantee for press freedom.”[304]

7.18 Clement So York-kee, assistant professor of journalism and communication at the Chinese University of Hong Kong, was reported as saying that when self-discipline failed to work, a media council comprising professionals and representatives from other sectors – except government – may help uphold ethics and professional standards.[305] Sze Man-hung, senior lecturer at Hong Kong Polytechnic University, has suggested that the setting up of a news council is one of the solutions to the problems arising from the excesses of the media.[306] Fung Ying-him and Chan Sum-yee of the City University have also outlined the basic framework of a news council for Hong Kong after discussing the experience in Minnesota in the United States.[307] More recently, Kenneth W Y Leung, Associate Professor of the Journalism and Communication Department at the Chinese University of Hong Kong, advocates the setting up of a statutory body similar to the Consumer Council and the Office of the Ombudsman to receive complaints about the media, to investigate inappropriate reportage on its own initiative, and to publish the findings of its investigation.[308]

7.19 Given that there is a pressing social need to protect individuals from unwarranted press intrusion, press activities must be subject to regulation to the extent that they impinge on individual privacy. If it is accepted that press intrusion should be regulated, then there must be effective regulation. And if a voluntary system is absent or is not effective, there will have to be a body created by law with statutory powers to regulate press intrusion. We are not suggesting that journalists should be registered or that publishers should be subject to licensing controls. But since there is no reasonable likelihood that a system of voluntary press regulation will be put in place, let alone succeed, in the foreseeable future, it is necessary to create a body by law to regulate press intrusion.

7.20 To ensure that it is free from government interference, the mechanism for the regulation of press intrusion must be and be seen to be independent of the Government. Hence, an independent Appointments Commission should be set up to appoint members to that regulatory body. Although the establishment and maintenance of the mechanism should be independent of the Government, it is not necessary to exclude the press from the process. Members of the press may be represented on the body to supply the necessary expertise in journalism which may be lacking in members drawn from the public. This would ensure that decisions reached by that body are sound and could command the respect of the press. Apart from receiving and investigating complaints from the public, that body may be given power to issue a code of conduct on privacy matters, and to require the printing of apologies and corrections by the offending newspaper if the latter has acted in breach of that code.

7.21 The scope of a press code on privacy matters would be wider than a Code of Practice under the Personal Data (Privacy) Ordinance. Whereas the latter could only address the applicability of the Data Protection Principles to the news media, the former would cover all aspects of press activities which may give rise to a privacy concern in relation to the collection and use of private facts for journalistic purposes, whether the Data Protection Principles are implicated or not.

7.22 We note that there is a growing concern over media abuse involving issues other than privacy. Given that our remit is on privacy, we have not given any thought to these issues. However, we believe that it is more than worthwhile to set up a body to regulate press intrusion only. The British Press Complaints Commission has reported that complaints in relation to privacy and accuracy accounted for 20% and 53% of the complaints concluded in 1997 respectively.[309] Since accuracy in reporting personal data in the press is an aspect of individual privacy which should fall within the purview of the independent body, and press intrusion appears to be more widespread in Hong Kong than in the UK, we maintain that the independent body could play a significant role even though its scope is confined to privacy.

Pros and cons of establishing a mechanism by law to regulate press intrusion

7.23 Although we are satisfied that there is a need to establish a mechanism with statutory powers to regulate press intrusion, we must take on board the concerns of those who are apprehensive about the creation and functioning of bodies set up by law. Their main concern is that such a body is liable to be abused or taken over by those in authority. The mere fact that a body is created by statute and its functions and powers are vested by the legislature is no guarantee that it would not be so. It is always open to the legislature to amend the enabling statute, thereby changing the constitution of the body or giving it more powers than are reasonably necessary to achieve the objective, hence eroding the independence of the body and freedom of the press. Those in authority may also appoint persons to sit on the body who are partisan or take a dim view of press freedom. A body dominated by such persons is likely to undermine press freedom and the long-term interests of Hong Kong. Furthermore, the claim for independence may result in a low degree of accountability making it more likely to abuse its powers.

7.24 Although the above arguments are not without merit, they are largely misguided. In any event, they are not problems without cure. First, the Basic Law has promised that all members of the Legislative Council shall ultimately be returned by universal suffrage. It is highly unlikely that a legislature constituted by election would modify the mechanism in such a way as would knowingly infringe fundamental human rights.

7.25 Secondly, the Legislative Council has to operate under the Basic Law. It may not pass legislation which contravenes the Law.[310] Since the Basic Law provides that restrictions on the rights and freedoms enjoyed by Hong Kong residents shall not contravene the human rights conventions, provisions which impose restrictions on the right to freedom of speech and of the press that are not permissible under the ICCPR are likely to be found by the courts to be contrary to the Basic Law and therefore of no legal effect.

7.26 Thirdly, insofar as the powers of the executive, legislature and judiciary should be and are subject to checks and balances, and the press is seen as the fourth institution which acts as an additional check on the Government, it is only natural that the profession should be subject to such checks and balances as are reasonably necessary for the protection of the lawful rights and freedoms of others. The following remarks made in the editorial of The Sunday Telegraph are pertinent:

“The hypocrisy of many of the defences of the current regime of self-regulation seems to be obvious to everyone except the journalists who put those defences forward. The very editors who so fiercely criticise the evident failings of self-regulation to ensure high standards of behaviour in other areas - the Stock Exchange, the police, the medical profession - seem unable to appreciate just how hollow their protestations that journalists can be trusted to look after themselves sound to the public.”[311]

The legislature, as the body representing the interests of the general public, is well suited to define the parameters within which press regulation should operate if the press fails to regulate itself effectively.

7.27 Lastly, to minimise any risk of abuse by those in authority, the statute may contain provisions which ensure that the body created under it is independent of the Government. As suggested above, an independent person may be invited to appoint an Appointments Commission to appoint members of that body. The independent body so constituted would then be charged with the responsibility of drawing up a press code on privacy matters and adjudicating upon complaints about breaches of the code.

7.28 Apart from setting up a mechanism which would preclude the Government from interfering with the functioning of the body, other safeguards may also be built into the legislative framework to prevent members of that body from abusing their powers. For example, the legislation may impose requirements as to qualification and disqualification for membership, and may require the body to consult the industry and the public when drawing up the privacy code; require it to give reasons for its adjudications, to publish its findings in a periodic report, and to publish an annual report.

7.29 Legal regulation of the media is not a novel idea. As in other jurisdictions, the broadcasting industry in Hong Kong is regulated by an independent authority created by statute, namely, the Broadcasting Authority created by the Broadcasting Authority Ordinance. The Broadcasting Authority is independent of both the industry and the Government. There has never been any suggestion that press freedom has been put in jeopardy on the ground that the industry is regulated by a statutory body, nor has there been any suggestion that the Government interferes with press freedom on the ground that the enabling statute was introduced by the Government and the broadcasting industry is regulated by law. The success of the Broadcasting Authority shows that press freedom and legal regulation are not irreconcilable. Provided that sufficient safeguards are built into the legislative framework, any risk of abuse and unwarranted interference by the Government can be kept to a minimum.

7.30 Apart from the Broadcasting Authority, there are other examples of statutory bodies which are independent of the Government and have won the respect of the public, such as the Boundary and Election Commission, the Office of the Ombudsman, the Office of the Privacy Commissioner, the Solicitors Disciplinary Tribunal, the Barristers Disciplinary Tribunal, the Judicial Officers Recommendation Commission, and the Independent Police Complaints Council. By virtue of the Legal Practitioners Ordinance (Cap 159), the Solicitors Disciplinary Tribunal and the Barristers Disciplinary Tribunal are given statutory powers to inquire into the conduct of solicitors and barristers respectively. No one has ever suggested that the Government interfered with the independence of the legal profession by legislating for the conduct of legal practitioners. Likewise, the Judicial Officers Recommendation Commission, which is empowered to make recommendation regarding the filling of judicial vacancies, was created under the Judicial Officers Recommendation Commission Ordinance (Cap 92). Indeed, both the High Court and the Court of Final Appeal are established by law. But there is not the slightest hint that the enabling Ordinances provide an opportunity for the Government to interfere with the administration of justice.

7.31 It has been argued that creating a statutory authority to monitor the press would undermine press freedom and the autonomy of editors. Once a mechanism is put in place, it can be extended to other areas at the behest of those in control. However, as long as there are provisions in the legislation ensuring that the body regulating press intrusion is independent of the Government, the creation of such a body would not provide an opportunity for the Government to interfere with press freedom. After all, it is the legislature, not the Government, which would have the final say on the composition, functions and powers of that body. Any claim that the creation of such a body would lead to more stringent regulation and would allow the Government to interfere with press freedom is therefore groundless. By the same token, any code of conduct on press intrusion ratified by such an independent body cannot have any Government involvement. There is no reason why such a wholly independent body should lead to a Government-controlled press. Even if the independent body is funded by public revenue, this will not in any way undermine its integrity if its autonomy is guaranteed by statute.

7.32 Indeed, a distinct advantage of having a body created by law is that the legislation may provide that the body and its members are immune from legal action for anything done by them in the exercise of their powers. In Chapter 4 above, we recounted the worries of the profession that any adverse comments made by a news association about a particular newspaper would result in legal action taken by the newspaper against the executive officers of the association. If this is a real concern of the industry, then the solution must lie in a body created by law. Only a body created by law can be absolutely immune from liability for passing judgments which are critical of newspapers. Members of a voluntary body, no matter what form it will take, such as the Media Ethics Forum proposed by the HKJA, the Federation of News Associations proposed by the Chinese Press Association, and the news or press council proposed by some academics, are liable to be sued in defamation if they have made a statement or adjudication which is critical of a newspaper which does not subscribe to the self-regulatory scheme. It appears that unless a self-regulatory body has the support of all newspaper proprietors, only a body created by law can discharge the monitoring functions without fear of reprisals from maverick newspapers.

7.33 The idea of issuing a code of conduct for the news media has been attacked on the ground that ethical issues are not matters appropriate for adjudication by an outside body. However, to the extent that the press in many jurisdictions do not find it repugnant to be bound by a Press Code enforceable by a press council, there is no reason why an industry-wide code of conduct on privacy matters is impractical or works against the interests of the press in Hong Kong. As a matter of fact, all broadcasters in Hong Kong are bound by the Codes of Practice on Programme Standards issued by the Broadcasting Authority. These codes embody ethical as well as professional standards that are enforceable against the broadcasters. Both the interests of broadcasters and the general public are well served by these codes. It should be noted that although the independent body would be created by law, the code of conduct to be issued by that body would not be statutory in nature. Neither the Administration nor the legislature would have any direct say in the contents of the code. The press would also be consulted and directly involved in the drafting process. The independent body would be self-regulatory in nature, though with the participation of the public.

7.34 It may be recalled that Asia Television Ltd and Television Broadcasts Ltd have been fined a total of $150,000 for the coverage of the widower whose wife had killed herself and their two sons. The Authority concluded that such coverage constituted a serious breach of the provisions of the Commercial Codes of Practice on Programme Standards, including those stipulating that the portrayal of family and similarly important human relationships shall be treated with sensitivity and not in an exploitative or irresponsible manner; respect shall be maintained for the sanctity of marriage and the importance of the home; and care must be taken in the treatment of themes dealing with prostitution, or social or domestic conflict. Although one may think that the conduct of one or more newspapers was no less culpable than the two television companies, the fact remains that no newspaper has been censured, let alone punished, by a regulatory body for the extensive coverage of the widower; the reason being there is no voluntary or statutory body monitoring the conduct of the press, nor is there any code of ethics applicable to the press industry. The audience and social influence of a mainstream newspaper are no less than those of a television or radio company. Yet only broadcasters are monitored by a regulatory body in accordance with a set of codes of practice. The press is not required to adhere to the professional standards one would reasonably expect from a responsible news organisation in a free society. A code of conduct for the press, albeit restricted to privacy matters, would redress the imbalance to a certain extent.

7.35 Public disclosure of private facts about a vulnerable person in a newspaper may cause that person embarrassment, affront his dignity, ruin his career or family, harm his physical or mental health, or even cause his death in extreme cases. The public may find it interesting to learn about the private lives of another, but in a civilised society in which people respect each other’s lawful rights, the press is not entitled to invade an individual’s privacy merely because the readers derive pleasure from learning about the details of his private life.

7.36 By drawing reference to Article 19 of the ICCPR, it is arguable that the exercise of press freedom under the Basic Law carries with it duties and responsibilities.[312] Press freedom is subject to such restrictions as are necessary for respect of the rights recognised in the ICCPR.[313] Under Article 17 of the ICCPR, Hong Kong residents have a right to the protection of the law against “arbitrary” as well as unlawful interference with their privacy. The “protection of the law” under that Article calls for measures in the area of private and administrative law as well as prohibitive norms under the criminal law.[314] Article 39 of the Basic Law further provides that the provisions of the Covenant shall be implemented through the laws of Hong Kong. It follows that the Administration and the Legislative Council are under an obligation to protect Hong Kong residents from any arbitrary interference with their privacy by the press. In our view, press intrusion that cannot be justified in the public interest is an “arbitrary” interference with the right of privacy under Article 17 of the ICCPR. Such interference is an abuse of freedom of the press. It cannot be a legitimate exercise of press freedom. Protecting individuals from such arbitrary interference is not an infringement of press freedom. On the contrary, it is a permissible objective of government. Legislating for the creation of an independent body to regulate press intrusion is narrowly aimed at this legitimate objective. It will not have any communicative impact on speech protected by the Basic Law. After all, we are not proposing that the specific conduct of which examples are given in Chapter 2 must necessarily be prohibited, but rather that a set of professional standards should be established and enforced by an independent body to prevent abuse.

7.37 To the extent that arbitrary interference with privacy by the press is an abuse of freedom of the press, protecting individuals from unwarranted press intrusion would not only have no impact on the legitimate exercise of freedom of expression, but would also result in the public holding the journalistic profession in high regard. If intrusive press conduct can be curbed by setting up an independent mechanism to balance privacy with press freedom in accordance with Article 19 of the ICCPR, and the press could develop respect for the right of privacy under Article 17 of the Covenant when carrying out news-gathering activities and presenting a story, respect for press freedom would be enhanced and the press would be held in high regard by the public.

7.38 We recognise that it is up to members of the journalistic profession to regulate the relationship among themselves. The industry is free to employ someone who is not trained in journalism to perform the duties of a journalist. It is free to decide what to investigate, how to investigate, and how a story should be reported. However, by nature of its functions, the activities of the press have an impact on the general public. The press is not merely a profession but is also performing the functions of the “fourth estate”.[315] There is a public element in its activities. In our opinion, regulation of press intrusion by an independent body is legitimate as long as such regulation is aimed at the negative effects of press activities on individual privacy and would not undermine the integrity of the press as an institution.

7.39 Although press freedom is exercised by the press industry, it is commonly asserted that the freedom is exercised by the industry in the interest of the public. In the United States, restrictions on broadcasters’ freedom have frequently been justified in the interest of the audience. The American Supreme Court held that

“the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of viewers and listeners, not the right to the broadcasters, which is paramount.”[316]

7.40 The same argument can also be employed to justify measures to protect individuals from transgressions by the print media. For ordinary citizens, freedom from the press is as important as freedom of the press. Despite the fact that all publishers are private enterprises, the public have a stake in the proper running of the industry. They are entitled to see that press freedom has not been abused to the prejudice of the lawful rights and freedoms of ordinary citizens. The Administration as the guardian of the interests of the public, and the legislature as representing the interests of the constituencies, are under an obligation to ensure that the press does not abuse its freedom. By creating an independent body to regulate press intrusion, the Government could provide a mechanism through which the public could monitor the press. Such an entity would be independent and cannot be run or controlled by the Government. The role of the Government would be confined to that of providing a legislative framework to facilitate public scrutiny of the press with the participation of the press. Once the enabling legislation is passed, the Government would have no role to play in either the adjudication process or the formulation of professional standards. Since members of the public would be represented on the statutory body, complainants would receive a fair hearing. On the other hand, the press members on that body would guarantee that press freedom would be taken into account when preparing the Code and adjudicating complaints.

7.41 The HKJA has suggested that a pressure group, to be known as the Media Ethics Forum, with members drawn from people outside the media (such as teachers and social workers) may be formed to lobby for media ethics, educate the public and handle public complaints. However, in the absence of a code of ethics which applies to and binds the whole industry, there will be no yardstick against which the conduct of the news media may be measured, and the decisions metered out by the Forum would fail to provide insight into the bases for them. Without any guidance and agreement as to what amounts to unprofessional and unethical conduct, the Forum may make comments or “rulings” which prove to be internally inconsistent or even arbitrary, thereby providing little guidance to the industry and the public. Furthermore, without the support of all newspapers and without any sanctions to enforce its adjudications, an offending newspaper is likely to refuse to co-operate and ignore its “rulings”. Kenneth W Y Leung was quoted as saying that the proposal to set up a Media Ethics Forum is asking too much of community groups that are not properly organised or financed, and have neither the time nor the expertise to monitor the media.[317]

7.42 The Hong Kong Chinese Press Association has proposed that the seven news associations in Hong Kong should come together and form a Federation of News Associations. However, unless all newspapers proprietors are represented on the Federation and the Federation issues a code which is binding on all newspapers, the Federation and any code issued by it would not be effective in protecting individuals from press intrusion.

7.43 We appreciate the efforts made by the Hong Kong News Executives’ Association in drafting a Code of Ethics for Hong Kong Journalists in consultation with the industry. But as pointed out by the LegCo members at the meeting of the LegCo Panel on Home Affairs held on 26 April 1999, the Association failed to offer any suggestions as to how breaches of the code would be dealt with in the future. Although the new Code might be more comprehensive than the one issued by the HKJA and would receive support from some sections of the industry, the fact remains that the News Executives’ Association does not represent the will of newspaper proprietors; nor are news executives of all newspapers represented on the Association.[318] There is nothing that the Association can do if the person who is found to have breached the code is not a member of the Association. The Code will have no effect on proprietors and journalists who are not members of the Association. It may be recalled that the HKJA already have a Code of Ethics for its members and they have an Ethics Committee to implement the Code. But the Chairperson of the HKJA had advised that one or two newspapers had ignored their requests for information and so refused to co-operate in their investigations. Apparently, the voluntary complaints mechanism set up by the HKJA fails to curb excesses of the press. Even if the News Executives’ Association proceeded to the second stage and eventually established a mechanism to adjudicate complaints about breaches of its Code, it would face the same difficulties faced by the HKJA – unless all newspaper proprietors agree to participate in the framework.

7.44 Generally speaking, news associations put their faith in public criticisms, media education, opinion surveys, signature campaigns, and even boycott. However, these activities are not effective in resolving the problem of press intrusion. Our major concern is the plight of victims of press intrusion, not the profits and turnover of a newspaper company. A drop in the readership of a newspaper that has abused press freedom to the detriment of individual privacy will not alleviate the pain, suffering, embarrassment and inconvenience of the victims. The fact that the offending newspaper has a low circulation only affects the seriousness of an intrusion. Members of the public should be protected from unwarranted intrusion by newspapers irrespective of the profitability and circulation figures of the newspaper involved. Individuals whose privacy has been unjustifiably intruded upon should have a right to seek redress from the offending newspaper, even though the relief sought may be no more than an apology or correction.

7.45 Unless all newspaper proprietors and editors subscribe to an industry-wide code of ethics and they all support the creation of a news or press council to deal with complaints from the public about breaches of the code in an effective manner, any efforts on the part of the news media to regulate media abuse would be of limited consequence to victims of press intrusion.

7.46 To conclude, effective press self-regulation is impossible because the press industry in Hong Kong is by its nature unable to regulate itself effectively or to establish any body to do the same. There is therefore a pressing social need to invoke the assistance of the public in establishing a wholly independent mechanism which is free from Government interference to regulate press intrusion. To achieve that goal, it is necessary to confer with the industry with a view to issuing a code of conduct in relation to privacy matters and to establishing an independent body with jurisdiction to deal with breaches of that code.

7.47 We emphasise that these proposals have been made solely for the protection of privacy and do not apply to issues such as obscenity, bad taste, right of reply and accuracy in general.

7.48 The structure, functions and powers of the proposed Press Council for the Protection of Privacy will be examined in the next chapter.

[291] See generally, Ma Chi-shen, Hsin Wen Lun Li (Journalistic Ethics) (1997), ch 1-4.
[292] L A Day, Ethics in Media Communications: Cases and Controversies (Wadsworth Publishing, 1997), ch 2.
[293] “The Helplessness of Rule of Law / The Silence and Insensitivity of Ethics”, Hong Kong Economic Journal, 3 August 1998. The editorial comments on a case in which a legislator was charged with forgery. See also the editorial in Hong Kong Economic Journal on 15 Feb 1999 entitled “Abandon Getting Rich by Speculation / Cultivate a Noble Spirit”.
[294] R T Kaplar and P D Maines, The Government Factor - Undermining Journalistic Ethics in the Information Age (Washington: Cato Institute, 1995), 34-35.
[295] E B Lambeth, above, 67.
[296] Report of the Committee on Privacy and Related Matters, above, para 15.5.
[297] “Report by the Chairman of the Code Committee” (1996), at <http://www.pcc.org.uk/annual/ codechai.htm> (1.5.98).
[298] Report of the Committee on Privacy and Related Matters, above, para 13.5.
[299] UN Document E/CN.4/1116, para 177(3)(d).
[300] Eg Legal Practitioners Ordinance (Cap 159), Dentists Registration Ordinance (Cap 156), Medical Registration Ordinance (Cap 161), Architects Registration Ordinance (Cap 408), Engineers Registration Ordinance (Cap 409).
[301] The survey found that 20% of Hong Kong journalists had not received post-secondary or university education. Of those journalists with college education in Hong Kong, 40% did not major in journalism: J M Chan, P S N Lee & C C Lee (1996), above, 44.
[302] Far Eastern Economic Review, 22 April 1999, p 26.
[303] A C Nauman, “News Ombudsmanship: Its History and Rationale” (1994) at <http://www5.infi. net/ono/nauman2.html>.
[304] J Chan, “Freedom of the Press - Defence of Human Rights” in HKJA 20th Anniversary 1968 - 1988, pp 31 & 43.
[305] South China Morning Post, 16 Nov 1998.
[306] Sze Man-hung, “Is News Council an Anomaly?”, Dec 1998 (article distributed at the conference on News Media in Hong Kong jointly organised by the HKU Centre of Asian Studies and The Freedom Forum Asian Centre on 26 Jan 1999).
[307] Fung Ying-him & Chan Sum-yee, “Models for the Creation of a News Council”, Hong Kong Economic Journal, 24 Dec 1998; Chan Yuk-sai, “Can Legal Measures be Applied to Monitor the Media?”, Hong Kong Economic Journal, 30 Nov 1998.
[308] Meeting of LegCo Panel on Home Affairs held on 26 April 1999.
[309] PCC, “Review of the Year” (1997), at <http://www.pcc.org.uk/annual/97/review97.htm> (15.1.99), p 5. The breakdown of complaints relating to privacy is as follows: privacy (13.0%); listening devices (0.1%); hospitals (0.3%); harassment (3.0%); intrusion into grief (2.0%); innocent relatives (0.6%); children in sex cases (0.3%); victims of crime (0.3%).
[310] Basic Law, Article 11, para 2. The courts are entrusted with the task to determine whether a piece of legislation contravenes the Basic Law.
[311] The Sunday Telegraph, 14 September 1997.
[312] Courts may look at the relevant provisions in the ICCPR for guidance when interpreting an article in the Basic Law that confer rights and freedom on individuals. Eg Chan Kam Nga v Director of Immigration [1998] 2 HKC 16.
[313] Basic Law, Article 39, para 2.
[314] UN Document E/CN.4/116.
[315] Black’s Law Dictionary explains at p 657 that the term has its source from a reference to the reporters’ gallery of the British Parliament whose influence on public policy was said to equal that of Parliament’s three traditional estates: the clergy, nobility, and the commons.
[316] Red Lion Broadcasting v Federal Communications Commission, 395 US 367, 390 (1969).
[317] Frank Ching, “Learning Self-Control – Hong Kong’s media are torn between ethics and profits”, Far Eastern Economic Review, 17 Dec 1998, at 25.
[318] The executive committee of the Association consists of representatives from five broadcasting companies and six newspapers, including Ming Pao, Apple Daily, Hong Kong Commercial Daily, Ta Kung Pao and Hong Kong Standard.