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Hong Kong Law Reform Commission |
8.1 Before we go into the details of the Press Council for the
Protection of Privacy (the PCPP) recommended in the above chapter, it would be
helpful if we give a brief account of the proposals and precedents on press
regulation in other jurisdictions. Of particular relevance to our study are
those in connection with the office of press ombudsman, press complaints
tribunal and press council. We are aware that the remit of the proposed PCPP
would be narrower than that of a press ombudsman, press complaints tribunal and
press council. But a brief examination of these proposals and precedents would
give us an insight as to how the proposed PCPP could be constituted and
maintained.
8.2 Press regulation on the industry level may take one of
the following three forms:
(a) a press ombudsman similar to the Press Ombudsman recommended by the National Heritage Committee of the UK Parliament in its report on Privacy and Media Intrusion;
(b) a press complaints tribunal similar to the one recommended by Sir David Calcutt QC in his Review of Press Self-Regulation;
(c) a press body similar to the press councils in other jurisdictions.
8.3 The National Heritage Committee of the House of Commons in the UK
thought that anyone dissatisfied with the outcome of an investigation by the
press industry, or whose complaint had been rejected without investigation,
should have recourse to a Press Ombudsman. Since effective regulation depends
on whether the newspapers are willing to co-operate and give access to their
documents and information, and that the Press Ombudsman would be called upon
only when voluntary regulation had proved ineffective, the Committee recommended
that a statutory Press Ombudsman be appointed. The recommendations of the
Committee were as follows:
(a) The Press Ombudsman should be appointed by the Lord Chancellor in consultation with the Lord Advocate. The right of nomination should be open to anyone including journalists, their unions, their editors and their proprietors.
(b) The office of the Press Ombudsman should be funded by the Exchequer.
(c) The Ombudsman should have the following functions:
i. to investigate complaints submitted to the voluntary Press Commission whose outcome was not satisfactory to one of the parties involved;
ii. to consider complaints which the Commission had declined ab initio to investigate; and
iii. to institute investigations where no complaint had been made.
(d) The Ombudsman should have the following powers:
i. to require the publication of corrections, retractions or apologies and to supervise their wording, position and format;
ii. to publish with an adjudication the names of those responsible for a serious breach of the Press Code;
iii. to award compensation to those affected by breaches of the Press Code;
iv. to impose a financial penalty on newspapers responsible for flagrant or persistent breaches of the Press Code.
(e) The Press Ombudsman should be required to make an annual report to Parliament.
(f) Where a newspaper refuses to pay a fine or compensation which has been ordered by the Press Ombudsman, the Ombudsman should be able to seek an order from the High Court requiring it to be paid. Similarly, where a newspaper dissents from the Ombudsman’s decision, it should be entitled to ask the High Court to discharge the order.
8.4 We are not aware of any Press Complaints Tribunal in existence in
other jurisdictions but Sir David Calcutt QC has recommended in his Review of
Press Self-regulation that a press complaints tribunal be created by
law.[320]
8.5 The tribunal
recommended by Calcutt would need to have jurisdiction over the publishers of
all newspapers and magazines (except learned journals) which are published
commercially, but would not extend to publishers of single publications or
books. The tribunal would also need to have jurisdiction over editors,
journalists and all others involved in the collection of material with a view to
its publication by the media.
8.6 Since the tribunal would need judicial
status, its chairman should be a judge or senior lawyer appointed by the Lord
Chancellor. For hearings, the chairman would sit with two members drawn from a
panel appointed by the responsible minister. It would be desirable for at least
one of the members at each hearing to have experience of the press at senior
level. The chairman and members would normally be appointed for renewable
three-year terms. Because of its conciliation function, the tribunal would need
a larger administrative staff than is usual for tribunals.
8.7 The
tribunal would need to have the following functions and powers:
(i) to
draw up and keep under review a code of practice in consultation with the press
and other interested parties;
(ii) to restrain publication of material in breach of the code of practice; but no injunction should be granted if the publisher could show that he had a good arguable defence;
(iii) to receive complaints (including third-party complaints) of alleged breaches of the code of practice;
(iv) to inquire into those complaints;
(v) to initiate its own investigations without a complaint;
(vi) to require a response to its inquiries;
(vii) to attempt conciliation;
(viii) to hold hearings;
(ix) to rule on alleged breaches of the code of practice;
(x) to give guidance;
(xi) to warn any person who had violated the code;
(xii) to require a publisher to print an apology, and to decide on the edition, location, and content of such an apology;
(xiii) to require a publisher to print a correction, and to decide on the edition, location, and content of such an correction;
(xiv) to require a publisher to print a reply from a complainant;[321]
(xv) to enforce publication of its adjudications (including, when appropriate, a requirement to publish an apology and correction);
(xvi) to award compensation, at least in cases of privacy and inaccuracy, against such person as the tribunal thinks fit;
(xvii) to impose fines;
(xviii) to award costs against the publisher or person concerned in cases in which a ruling has been made against it;
(xix) to award costs against complainants if their complaints were frivolous or vexatious or they had unreasonably refused conciliation;
(xx) to review its own procedures;
(xxi) to publish:
an annual report to Parliament;
regular reports of complaints which it had received, and the action it had taken to deal with them; and
such other reports as it felt necessary, including reports of any self-initiated inquiries, and general advice given to the press; and
(xxii) to require the press to carry, at reasonable intervals, an advertisement to be specified by the tribunal, indicating to its readers how complaints to the tribunal could be made.
8.8 Since
complainants would obtain legally enforceable redress before the tribunal, they
might have two overlapping remedies, one before the tribunal and one before the
courts. Calcutt therefore recommended that anyone who complains to the tribunal
should waive his right to sue in the courts.
8.9 A complainant may
appear before the tribunal in person but legal representation would be
permitted. The tribunal may take evidence on oath at a hearing and would adopt
a predominantly inquisitorial approach rather than the traditional adversarial
approach adopted by the courts. Since the tribunal would be asked to determine
whether a newspaper is liable to pay compensation or fines, a certain degree of
formality is expected. The proceedings of the tribunal would be conducted in
public in normal circumstances. However, the tribunal may make an order
restraining the press from reporting certain aspects of the case for good
reason.
8.10 There should be a right of appeal, with leave, either to
the High Court or to the Court of Appeal against an order restraining
publication, an order for compensation, an order imposing a fine, and any
rulings on which any of those orders were based, or on any point of law.
8.11 Examples of press councils or similar bodies in other
jurisdictions have been given in Chapter 3 above. After carrying out a
comparative study of press councils in 16 jurisdictions, Li Zhan suggests that
press self-regulation could be implemented in the following
ways:[322]
(a) The self-regulatory press council should have a high degree of autonomy and independence.
(b) The press council should comprise of representatives elected by the editors’ association, the journalists’ association and the publishers’ association. The three associations should enjoy equal rights in the council.
(c) Members of the public should be represented on the council. Various sectors such as the legal profession, the education sector, the industrial and commercial sector, religious bodies, women’s groups, the legislative body and academic bodies on journalism, should nominate representatives to the press council. These representatives should account for no less than half of the members of the council.
(d) The office of the chairman of the council should be filled by an experienced judge.
(e) The council should have authority to initiate its own investigations. Journalists and newspapers in breach of the press code should be subject to effective sanctions.
(f) The chairman, secretary and supporting staff should act full-time.
(g) Funds for the council should be provided by the constituent bodies. However, the Treasury should share part of the costs if the constituent bodies are unable to provide all the necessary funds.
(h) A detailed press code covering the treatment of news, comments and advertisements should be promulgated. That code should serve as the standard against which press conduct and complaints could be judged.
(i) The Government should render assistance to the industry for the establishment of a fair, reasonable and efficient press council, and provide legislative and financial support if necessary.
(j) The Government should enact a law of journalists to safeguard the independence and professionalism of journalism.
(k) The press council should publish periodicals and reports, and strengthen research on press self-regulation and problems about the press.
8.12 The
Press Complaints Commission in the UK summarises the benefits of a system of
self-regulation based on a press council or similar
body:[323]
(a) It aims at resolving disputes amicably and quickly.
(b) It does not cost an individual anything to lodge a complaint.
(c) The cost of the system is funded by the industry. There is no burden on the taxpayers.
(d) The complaints mechanism is accessible to all.
(e) The complainant does not need to retain a solicitor to represent him.
(f) There is no need for the involvement of lawyers in the hearing.
(g) The procedures are simple and easy to understand.
(h) Because of the flexibility of the system, a dispute could be resolved in an informal manner and within a short period of time.
(i) Since the code of practice is written by editors themselves for editors, it is imbued with such moral authority that all editors across the industry will seek to abide by it.
(j) The regulatory body can judge complaints against a code of practice.
(k) The public can have a clear understanding of what it can reasonably expect from the industry.
(l) The code assists the editors and journalists in making judgments on a whole range of issues.
(m) The complaints mechanism operates in private, away from the glare of publicity.
(n) The emphasis is on conciliation and dispute resolution.
(o) The vast majority of the complaints can be resolved by the newspaper publishing a correction or an apology, or publishing an article providing an opportunity to reply, or else withdrawn after an explanation by the newspaper, without the need to proceed to formal adjudication by the Council.
8.13 Out
of the three options mentioned above, press council is the most attractive of
all. Whereas press councils are fairly common in developed countries which have
constitutional safeguards for press freedom, we are not aware of any
jurisdictions which have opted for Press Ombudsman or Press Complaints Tribunal.
Sweden has a Press Ombudsman but his rulings may be reviewed by the Opinion
Board of the Press. Complaints by the public concerning the conduct of the
press require a balancing of press interest and public interest. These
complaints are best adjudicated by a group of persons with representatives from
the press and the public instead of by a single
person.
8.14 Representation of the press and the public is crucial to
the success of the complaints mechanism. This would ensure that complainants
have a fair hearing which has due regard to both press freedom and privacy
interests. A body comprising representatives from both the public and the press
could strike the right balance between privacy and press freedom. Press
activities affecting the interests of members of the public should be subject to
the scrutiny of the public. Although there are merits in appointing a person
with legal background as the Press Ombudsman or as one of the three adjudicators
of the Press Complaints Tribunal, the interests of the public is best
represented by a group of citizens who are broadly representative of society.
This is particularly so if the mechanism is to be set up as a simple and
informal procedure where the complainants normally appear without legal
representation. Likewise, even if a person with experience in the press
industry could be appointed to the Press Complaints Tribunal, it would be better
if various sectors of the industry could participate in the decision-making
process. This would ensure that the views of proprietors, editors, reporters
and academics could be taken into account when reaching a decision. A press
council with representatives from various sectors of the press would be
sensitive to the concerns of free speech and free press. A properly constituted
press council is therefore most likely to receive the support of the press and
the public.
8.15 In light of the above-mentioned, we decide that the
proposed Press Council for the Protection of Privacy (PCPP) should be modelled
on press councils in other jurisdictions, subject to our observations in the
previous chapter, in particular, the need to ensure that it is wholly
independent of the Government and is effective in providing relief to victims of
press intrusion. We examine below the composition, functions and powers of the
proposed PCPP.
8.16 We adhere to the following principles when determining the
composition, functions and powers of the PCPP:
(a) The Council should have jurisdiction over all publications concerning news, which are published in Hong Kong.
(b) The Council should be autonomous and independent of the Government and other outside interference.
(c) Its members should be appointed by an independent Appointments Commission.
(d) The Council should consist of representatives of the public and the press.
(e) Press Members should be drawn from the press.
(f) Public Members should be persons of high standing who are not professionally associated with the press.
(g) Senior civil servants should not be eligible for appointment to the Council.
(h) The Council should have an independent chairman.
(i) The procedures for obtaining redress should be simple, informal and inexpensive.
(j) The Council should issue, keep under review, and implement a comprehensive code of conduct on privacy-related matters.
(k) It may receive and adjudicate on complaints by the public about the conduct of the press in connection with the gathering and publication of personal information.
(l) It may initiate its own inquiries.
(m) It should have conciliation procedures to ensure that complaints can be handled speedily.
8.17 The first question to decide is whether the PCPP should have
jurisdiction over magazines as well as newspapers. As it would be impossible to
provide adequate and effective protection if intrusion effected by magazines is
left unregulated, we decide that both magazines and newspapers should be subject
to the jurisdiction of the Council.
8.18 This brings us to the
question of the definition of “newspaper” and “magazine”
in the legislation. We note that the term “newspaper
(報刊)” in the Registration of Local Newspapers Ordinance (Cap
268) is defined as
meaning:[324]
“any paper or other publication and any supplement thereto available to the general public which -
(a) contains news, intelligence, occurrences or any remarks, observations or comments in relation to such news, intelligence, or occurrences or to any other matter of public interest; and
(b) is printed or produced for sale or free distribution and published either periodically (whether half-yearly, quarterly, monthly, fortnightly, weekly, daily or otherwise) or in parts or numbers at intervals not exceeding 6 months; and
(c) does not comprise exclusively any item or items specified in the Schedule”.[325]
8.19 The
definition of “newspaper” in the Ordinance covers both newspapers
and magazines that are published for sale or free distribution but excludes
learned journals and business reports. Only “local newspapers”
(本地報刊) that are “printed or produced in Hong
Kong” are required to be registered under the
Ordinance.[326] It would be
convenient if all “newspapers (報刊)” registered under
the Registration of Local Newspapers Ordinance could be made subject to the
jurisdiction of the Council. We therefore decide that all
“newspapers” registered under that Ordinance should fall within the
purview of the Council. Unless the context otherwise requires, the term
“newspaper” in the remaining part of this chapter shall be so
construed.
8.20 Newspapers published on the Internet are not required to
be registered under Cap 268. The Internet version of a newspaper may be
different from the hard copies that are put on sale on the streets. A publisher
may update the Internet version as and when he thinks fit so as to keep the
readers informed of the latest news. Anyone who has access to the Internet, be
he an ordinary citizen or a newspaper publisher, may disseminate news or other
information on the Internet. Although the press industry in the UK has agreed
that the jurisdiction of the British Press Complaints Commission applies to
publications on the Internet originating from publishers who have agreed to be
bound by the Press Code, and materials uploaded to the Internet are subject to
the provisions of the Control of Obscene and Indecent Articles Ordinance (Cap
390),[327] we believe that it is
impractical to regulate intrusive publications on the Internet at least for the
time being.
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Recommendation 5 We recommend that the Council should have jurisdiction over newspapers and magazines registered under the Registration of Local Newspapers Ordinance (Cap 268). |
8.21 The next question is whether the PCPP should have
jurisdiction over newspaper proprietors, newspaper publishers, editors and/or
reporters. The Registration of Local Newspapers Ordinance merely defines
“proprietor” as including lessee. However, the High Court held that
the terms “proprietor”, “publisher” and
“printer” should bear the following
meanings:[328]
8.22 We are not aware of any study on the involvement of proprietors in
the day-to-day business of a Hong Kong newspaper. But according to Bruce
Hanlin, individual owners in the UK who adopt a non-interventionist approach are
the exception to the rule. Examples of proprietors interfering with the
editorial process are not lacking notwithstanding the existence of a strong
journalists union and the presence of independent “watch-dog”
directors in some British
newspapers:[329]
(a) Robert Maxwell was a newspaper proprietor having a controlling interest in the Daily Mirror, the European, and the New York Daily News. He adopted an interventionist approach in running his newspapers. In a Guardian interview, he boasted about his ability to interfere with the editorial process, do the editor’s job, and even design the front page.[330]
(b) In the early twentieth century, Northcliffe, with The Times and the Daily Mail, and Beaverbrook, with the Daily Express, exerted personal control over many areas of their newspapers, including the general content, news value, layout and day-to-day administration.
(c) Victor Matthews, proprietor of the Daily Express, was quoted as saying that “By and large the editors will have complete freedom as long as they agree with the policy I have laid down.”[331]
(d) Rupert Murdoch acquired The Sunday Times in 1981. He was reported to have issued instructions to the editor on the selection and balance of news and opinion.
8.23 We
think that for regulation to be effective, any person who has control over the
contents of a newspaper and the activities of a journalist should be held
responsible for the intrusive conduct of a newspaper.
8.24 Newspaper
proprietors have the ultimate control over the activities of their newspapers.
Ownership of a newspaper gives them every right to intervene in the editorial
process. They are responsible for hiring editors to help run their business.
Editors, as employees of the proprietors, are obliged to comply with orders
given by proprietors. Where an editor refuses to comply with an order, it is
open to the proprietor to remove him from office. It should also be noted that
it is proprietors, not editors and journalists, who make the profits. We
therefore decide that proprietors and publishers should be held responsible for
the intrusive news-gathering activities and publications of their newspapers.
8.25 We have also examined the role of editors in a newspaper company. We consider that editors should also be held responsible because press intrusion may be effected on the instruction of an editor without any involvement of the proprietor. Although a proprietor is in full control of his newspaper, editors could also instruct reporters to act contrary to the Privacy Code. More importantly, it is the editors who decide what materials and pictures should go into a newspaper. In the news-gathering process, reporters may lawfully acquire private facts about individuals involved in a newsworthy event. Press photographers may lawfully take photographs which identify these individuals. But the decisions as to how a news story should be presented, how a vulnerable person should be described in the article, whether pictures of that person should be included in it, and, if so, which photographs should be used and to what extent should his appearance be obscured, always lie in the hands of an editor.
8.26 Provided that proprietors, publishers and editors are
held responsible, it is not necessary for the PCPP to have jurisdiction over
other journalists. A journalist who is found to have breached the Privacy Code
may be disciplined by the newspaper. Accordingly, all complaints may be treated
as being against the newspaper, not any individual editor or journalist, but
that it would be the proprietor, publisher and/or editor who would be held
accountable for any breach committed by the newspaper. To safeguard their
legitimate interests, proprietors and publishers may add a clause in the
employment contracts of editors and journalists to the effect that they agree to
abide by the Privacy Code issued by the Council and comply with the rulings of
the Council, so that persistent or serious breach by an editor or a journalist
would be a ground for disciplinary action.
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Recommendation 6 We recommend that newspaper proprietors, publishers and editors should be held responsible for breaches of the Privacy Code committed by the newspapers or their staff. |
8.27 To ensure the independence of the PCPP and to keep Government at arm’s length in the appointment of its members, it is necessary to create an intermediary body known as the Appointments Commission to appoint members of the Council.
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Recommendation 7 We recommend that members of the Council should be appointed by an independent Appointments Commission. |
8.28 The members of the Appointments Commission may be appointed in one of the following ways:
Option A
The Chief Executive invites an independent person of high standing, in consultation with the industry, to appoint an independent Appointments Commission. After that independent person has decided on the names for appointment, the Chief Executive shall appoint the members of the Appointments Commission in accordance with his recommendations.
Option B
The Appointments Commission is appointed by the Chief Executive direct. However, he is obliged to consult the news media before making his appointments.
8.29 We
prefer Option A where the appointment of members of the Appointments Commission
would have to undergo a two-tier process. The independent person must have
credibility and acceptable to the press industry. He must be independent of the
Government and is perceived to be neutral. For example, a serving or retired
judge, or a vice-chancellor or president of a university, might be a suitable
candidate provided that he has credibility and is acceptable to the
industry.
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Recommendation 8 We recommend that the Chief Executive should invite an independent person, in consultation with the press industry, to appoint the members of the independent Appointments Commission. The independent person should be someone of high standing in the community. |
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Recommendation 9
We recommend that: (a) the Appointments Commission should consist of three members
including the chairman;
(b) persons who would be disqualified from being appointed to the
Council or who are connected with the practice or teaching of journalism should
be disqualified from appointment to the Appointments Commission;
(c) members of the Appointments Commission should be appointed for a
term of 3 years;
(d) members of the Appointments Commission should be deemed to be a
public servant within the meaning of section 2 of the Prevention of Bribery
Ordinance (Cap 201) and for the purposes of that Ordinance;
(e) the Appointments Commission should be allowed to regulate its
procedure;
(f) the Appointments Commission should consult widely before appointing
members of the Council; and
(g) the Appointments Commission may discharge its functions through an
officer in the public service who should do all things necessary for
implementing the decisions of the Commission. The officer should be provided
with such staff as may be required.
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8.30 The Council should consist of not less than 12 or more than 20
members, including the chairman. As the members should have had some knowledge
of Hong Kong, the members should have been ordinarily resident in Hong Kong for
at least 7 years when appointed to the
Council.[332]
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Recommendation 10 We recommend that the Council should consist of not less than 12 nor more than 20 persons who have been ordinarily resident in Hong Kong for at least 7 years when appointed to the Council. |
8.31 We have considered whether PCPP members should be appointed by
the Appointments Commission direct or by the Chief Executive in accordance with
the recommendations of the Appointments Commission. This is not merely a
question of formality but is also a question of public perception as to the
degree of independence enjoyed by the Council. We believe that appointing
members of the Council by the Appointments Commission would demonstrate that the
Council is wholly independent of the executive authorities.
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Recommendation 11 We recommend that members of the Council should be appointed by the Appointments Commission direct. |
8.32 We consider that both the press and the public should be
represented on the PCPP. There are at least four options:
(a) 1/3 press members & 2/3 public members (including chairman);
(b) 1/2 press members & 1/2 public members (including chairman);
(c) 1/2 press members, 1/2 public members (excluding the chairman who is also a public member); and
(d) 2/3 press members & 1/3 public members (including chairman).
8.33 We
decide that there should be a mix of Press Members and Public Members with a
slight bias towards Public Members. We therefore prefer Option (c) where half
of the members (excluding the Chairman) would be Public Members. To ensure that
the Council would not be dominated by the press, the Chairman of the Council
should be a Public Member.
8.34 We have also considered whether the
Chairman should be appointed by the Appointments Commission or elected by all
members of the Council or by the Public Members only. In line with the general
practice that any person who is empowered to appoint the members of a public
body may appoint the Chairman of that
body,[333] we decide that the
Chairman should be appointed by the Appointments Commission instead of elected
by members of the Council.
8.35 Since it is essential that the principle
of natural justice is observed in the proceedings of the PCPP, it is desirable
to have a person with legal background to be the Chairman of the
Council.
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Recommendation 12
We recommend that: (a) half of the Council members (excluding the Chairman) should be drawn
from members of the public (to be known as Public Members) and the other half
from members of the press (to be known as Press Members);
(b) the Chairman of the Council should be a Public Member;
(c) the Chairman of the Council should be appointed by the Appointments
Commission; and
(d) a retired judge or a senior lawyer of at least 7 years’
standing in the legal profession should be appointed to be the Chairman of the
Council.
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8.36 Press Members should have had experience in the practice or
teaching of journalism. It is desirable that academic journalists be
represented on the Council because it is they who teach students to become
journalists and provide professional training to working journalists. Press
Members may be drawn from the press in one of the following ways:
Option A
Each of the following news associations are entitled to nominate one or two Press Members to the Council: (a) the Newspaper Society of Hong Kong; (b) the Hong Kong Chinese Press Association; (c) the News Executives’ Association; (d) the Hong Kong Journalists Association; (e) the Hong Kong Federation of Journalists; and (f) the Hong Kong Press Photographers Association. The Appointments Commission shall appoint such persons as are nominated by the above associations.
Option B
Press Members are nominated by associations representing the interests of various sectors of the press industry, such as proprietors, publishers, editors and journalists, and by colleges and universities which have a department of journalism. The news associations may nominate non-members and may make such number of nominations as they think fit. The Appointments Commission can only appoint a person nominated by these associations, colleges and universities.
Option C
The Appointments Commission calls for nominations from the news associations and the general public. Any individuals, organisations and associations, whether or not they are related to the press, are entitled to make nominations for Press Membership in the Council. However, due to the requirements of a Press Member, only persons who are connected with the press can be nominated as a Press Member.
8.37 Since
the associations listed in Option A do not represent all the journalists and
newspapers in Hong Kong, the selection of Press Members on that basis is open to
criticism. It is unlikely that the associations would nominate a non-member if
they are entitled to nominate only one or two members. Furthermore, newspapers
and journalists who have not joined any news associations would not be entitled
to make any nominations under Option A.
8.38 Option B is an improvement
of Option A because the number of nominations made by each association is not
restricted and there is a greater chance of a non-union member nominated to be a
Council member. Nonetheless, Option B may still be criticised on the ground
that the right of nominations are restricted to the news associations and the
educational institutions. Press Members appointed on this basis may be accused
of not representative of the industry. Option C answers this concern to a large
extent. Under that option, every person would be entitled to make a nomination,
whether or not that person or organisation is a journalist, newspaper publisher
or news association. We are in favour of this option because the right to
nominate a Press Member should not be confined to the news associations but
should be open to all organisations (including all newspaper publishers and news
associations) as well as members of the public (including all journalists and
academics).
8.39 We have considered the option of restricting the
right of nominations to proprietors and journalists. But since journalists are
not required to be registered or join a union and there are no minimum
qualifications to be a journalist, it would be difficult to lay down the
criteria for qualification to be a journalist for the purposes of making a
nomination. In any event, we think that the right of nomination should be as
wide as possible. As long as the nominee meets the requirement of a Press
Member defined in the legislation, it does not matter whether the nomination
comes from the press or the public. All journalists and newspapers publishers,
whether or not they are members of a news association, should be entitled to
make a nomination. Likewise, journalists who have not joined any news
associations should also be entitled to be nominated to the Council as a Press
Member.
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Recommendation 13
We recommend that: (a) Press Members of the Council should have had experience in the
practice or teaching of journalism;
(b) any individuals, organisations and associations, whether or not they
are related to the press, should be entitled to make nominations for Press
Membership in the Council; and
(c) Press Members should vote as individuals and not as representatives
of the organisations or associations that nominated them.
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8.40 Since Public Members should be independent of the press, they
should not be engaged in or connected with the business of publishing newspapers
or magazines. They should not have any financial or other interest as is likely
to affect prejudicially the discharge by them of their functions as Public
Members of the PCPP.
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Recommendation 14 We recommend that Public Members of the Council should not be engaged in or connected with the business of publishing newspapers or magazines in the last three years prior to the appointment to the Council. |
8.41 Since some of the privacy complaints handled by the PCPP
would touch on data protection issues, it is desirable to provide a link between
the Council and the Office of the Privacy Commissioner for Personal Data by
designating the Privacy Commissioner as an ex officio member of the
Council.
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Recommendation 15 We recommend that the Privacy Commissioner for Personal Data should be designated as an ex officio member of the Council. He should be counted as one of the Public Members of the Council. |
8.42 We consider that there should be provisions in the legislation
providing for disqualification from membership of the Council. The Council
should not be subject to pressure from outside which would affect the proper
discharge of its functions. We list out below, categories of disqualified
persons which may be included in the legislation:
(a) a person nominated as a candidate for election as the Chief Executive of the HKSAR;
(b) a member of:
(i) the Executive Council;
(ii) the Legislative Council;
(iii) the Provisional Urban Council or the Provisional Regional Council; or
(iv) a Provisional District Board;[334]
(c) a member of any national, regional or municipal congress, legislature, assembly or council of any place outside Hong Kong;
(d) an Information Officer, a directorate officer, or an officer in the Administrative Officer grade in the civil service;
(e) a salaried functionary of a government, whether central or local, of any place outside Hong Kong;
(f) a person who is of unsound mind and incapable of managing himself and his affairs; and
(g) an undischarged bankrupt.
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Recommendation 16 We recommend that there should be provisions in the legislation providing for disqualification from membership of the Council. |
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Recommendation 17 We recommend that members of the Council should be appointed for a period of 3 years and should be eligible for reappointment. |
8.43 Members of public bodies are normally entitled to such
remuneration and allowances as may be determined by the Chief Executive. We
think that the Chairman and members of the PCPP should be treated in the same
way as those of other public bodies. One would expect that other public bodies
would be used as a yardstick in determining whether the Chairman and members of
the Council should be entitled to receive remuneration and allowance, and in
determining the amount of remuneration and type of allowance payable to them if
they are so entitled.
8.44 Since the Chairman would bear the primary
responsibility for the successful running of the regulatory system and would be
expected to devote a significant proportion of his time to the Council, it is
only reasonable that he should receive a substantial amount of remuneration to
compensate for his service, particularly if we are to attract a distinguished
person with legal background to lead the Council in performing the unenviable
task of balancing privacy with press freedom.
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Recommendation 18 We recommend that a member of the Council should be removed from office if he is, or becomes, ineligible or incapable of carrying out his duties as a Public or Press Member of the Council. |
8.45 We decide that it is unnecessary to make a temporary
appointment when a Council member resigns or the office of a member becomes
vacant before the expiry of his period of
appointment.[335] We think that
it is preferable for the Appointments Commission to appoint a newcomer to fill
the vacancy. Such an arrangement would have the added advantage of maintaining
continuity by minimising the impact of a reshuffle at the end of the 3-year
term.
8.46 We decide that the PCPP should be allowed to regulate its
procedure except that the person presiding at a PCPP meeting should always be a
Public Member and that the Council should be under an obligation to ensure that
the complaints procedure is fair to the parties. The Council may wish to note
the following when drafting the rules of procedure:
(a) The quorum for any meeting of the Council should be not less than half of its members for the time being and, while a member is disqualified from taking part in a decision or a deliberation of the Council in respect of a matter, he should be disregarded for the purpose of constituting a quorum of the Council for deciding, or deliberating on, that matter.
(b) All matters for determination at a meeting of the Council should be decided by a majority of votes of the members present and voting thereon. In the event of an equality of votes the Chairman or other member presiding should have a casting vote in addition to his original vote.
(c) For the purposes of any meeting of the Council, if the Chairman is absent or vacates the chair, those members present at that meeting may by resolution appoint any Public Member to act in his place.
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Recommendation 19 We recommend that the Council should be allowed to regulate its procedure except that the person presiding at a Council meeting should always be a Public Member and that the Council should be under an obligation to ensure that the complaints procedure is fair to the parties. |
8.47 We decide that there should be provisions requiring PCPP members
to declare their interest in specified circumstances. The following is an
example illustrating how such provisions may be drafted:
“If a member of the PCPP has -
(a) a pecuniary interest, whether direct or indirect; or
(b) a personal interest greater than that which he has as a member of the public,
in any matter under discussion at a meeting of the Council,
(i) the member shall disclose the nature of his interest at the meeting;
(ii) the disclosure shall be recorded in the minutes;
(iii) where the disclosure is made by the member presiding, he shall vacate the chair during the discussion;
(iv) the member (including one who has vacated the chair under paragraph (iii)) shall, if so required by the majority of the other members present at the meeting, withdraw from the meeting during the discussion and shall not in any case, except as otherwise determined by the majority of the other members present at the meeting, vote on any resolution concerning the matter or be counted for the purpose of establishing the existence of a quorum.”
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Recommendation 20 We recommend that there should be provisions requiring Council members to declare their interest in specified circumstances. |
8.48 Under the Television Ordinance and the Broadcasting Authority
Ordinance, the Broadcasting Authority may issue Codes of Practice relating to
programme and advertising standards for television and sound
broadcasters.[336] The
Authority’s Codes of Practice Committee is charged with the responsibility
of reviewing existing codes and drawing up new codes for new services. New
codes and amendments to existing codes have to be endorsed by the Authority
before they are put into effect.
8.49 We consider that the PCPP should
prepare and issue a code of conduct for the guidance of both the press and the
public in relation to the gathering and publication of personal information by
newspapers. The Council should consult the general public, the industry and
other interested persons, including the Office of the Privacy Commissioner for
Personal Data, before it finalises the Code.
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Recommendation 21 We recommend that the Council should have power to draw up and keep under review a code of conduct on privacy-related matters (“the Privacy Code”). |
8.50 Where a person complains to the PCPP alleging that a newspaper
has breached the Privacy Code, the Council would investigate if there is
prima facie evidence of a breach. If so, the complaint would be referred
to a Complaints Committee for further investigation. However, the Council may,
before referral to a Complaints Committee, attempt to conciliate the parties if
they have no objection. The Council may decide not to undertake or continue an
investigation if the complaint is frivolous or vexatious or is for any other
reason unwarranted.
8.51 We consider that a Complaints Committee should
consist of 5 members of the
Council.[337] Three
members of the Committee, including the chairman, should be Public Members.
8.52 We decide that the PCPP should also receive complaints from
third-parties. Where a third-party complaint is received in a case where the
individual directly affected has not made a complaint, the Council should be
required to seek that individual’s views as to whether he has any
objection to the Council investigating the matter. The Council should normally
respect his wish if he raises any objection but it may make general comments on
the case without revealing his identity.
8.53 Where the PCPP has
reasonable grounds to believe that an act may be a breach of the Code, it should
have power to carry out an investigation on its own initiative to ascertain
whether the act constitutes a breach of the Code.
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Recommendation 22
We recommend that the Council should have power: (a) to receive complaints (including third-party complaints) of alleged
breaches of the Privacy Code;
(b) to initiate its own investigations if the Council has reasonable
grounds to believe that an act is a breach of the Privacy Code;
(c) to attempt conciliation before a complaint is referred to a
Complaints Committee for investigation; and
(d) to rule on alleged breaches of the Privacy Code.
|
|
Recommendation 23
We recommend that: (a) a Complaints Committee should consist of 5 members including the
chairman;
(b) three members of a Complaints Committee, including the chairman,
should be Public Members;
(c) a Complaints Committee may appoint other persons to be members of
the Committee to advise generally or on any particular matter. These members
should not have a vote on matters before the Committee; and
(d) the quorum for any meeting of a Complaints Committee should be four
members of whom two should be Press Members and two should be Public
Members.
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Recommendation 24
We recommend that upon receipt of a complaint, the Complaints Committee should: (a) give the parties a reasonable opportunity to make
representations;
(b) consider any representations made by or on behalf of the
parties;
(c) consider any evidence received by it, whether tendered on behalf of
the complainant or otherwise, which it considers relevant to the complaint;
and
(d) advise the Council whether there has been a breach of the Privacy
Code and, if so, make recommendations to the Council which would then adjudicate
on the complaint.
|
8.54 We decide that the PCPP and the Complaints Committees
should be able to receive evidence that are relevant to the complaint even
though the evidence is inadmissible at law. Neither the provisions of the
Evidence Ordinance (Cap 8) nor any other rule of law relating to the
admissibility of evidence should apply in proceedings before the Council or
Committee.
8.55 The Council and the Complaints Committees should be able to obtain any information, document or thing from such persons, and make such inquiries, as they think fit. However, no individual or organisation should be compelled to provide information to the Council. It would be up to the parties to a complaint to co-operate with the Council in its investigation.
8.56 Since
the proceedings should be informal, we consider that the parties should not be
represented by lawyers in any hearings before the Council and the Complaints
Committee unless the Council or Committee decides
otherwise.
8.57 Provided that the parties have been given an opportunity
to make representations and the procedure is otherwise fair to the parties, it
is not necessary for the Council to hold any hearing and no person should be
entitled to be heard by the Council. Any hearings to be held by the Council
need not be conducted in public.
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Recommendation 25
We recommend that: (a) neither the provisions of the Evidence Ordinance (Cap 8) nor any
other rule of law relating to the admissibility of evidence should apply in
proceedings before the Council and the Complaints Committees;
(b) the Council and the Complaints Committees may obtain any
information, document or thing from such persons, and make such inquiries, as
they think fit; and
(c) the parties should not be represented by lawyers in any hearings
before the Council and the Complaints Committees unless the Council or a
Complaints Committee decides otherwise.
|
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Recommendation 26
We recommend that the Council may decide not to undertake or continue an investigation into a complaint if: the subject matter of the complaint is trivial; (a) the complaint is frivolous or vexatious;
(b) the complaint, or a complaint of a substantially
(c) similar nature, has previously initiated an investigation as a
result of which the Council was of the opinion that there had been no breach of
the Privacy Code; or
(d) any investigation or further investigation is for any other reason
unwarranted.
|
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Recommendation 27 We recommend that no appeal may be made against any decision not to undertake or continue an investigation. If the Council decides not to undertake or continue an investigation, it should inform the complainant of that decision and of its reasons. |
8.58 We decide that the PCPP should have discretion to undertake or continue an investigation into a complaint even though the complainant has withdrawn the complaint, provided that such investigation is warranted in the public interest. This power is necessary because the complainant may withdraw his complaint in consequence of pressure or inducement from the offending newspaper but the Council may nevertheless find that a matter of public interest is at stake such that it would be proper for the Council to continue with the investigation. One would expect that the Council would protect the identity of the complainant from disclosure if this is in his interest.
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Recommendation 28 We recommend that the Council may undertake or continue an investigation into a complaint notwithstanding that the complainant has withdrawn the complaint, provided that the investigation can be justified in the public interest. |
8.59 Since some complainants might have a remedy by way of
proceedings in court against the newspaper concerned, it has been argued that
the PCPP should not adjudicate unless a complainant has signed a waiver agreeing
not to take any legal action in respect of the subject matter giving rise to the
complaint.
8.60 Both the Younger Committee and the Press Council in
the UK were in favour of the waiver requirement. They argued that without a
waiver:[338]
8.61 However, the Calcutt Committee remarked that such an attitude was
old-fashioned because the trend in dispute resolution has been to expose
one’s hand for the sake of speed and lower costs. If a newspaper has a
reasonable defence, a complainant might withdraw his complaint. If the
newspaper has a weak case, it would agree to an early
settlement.[339]
8.62 We
consider that it would be unfair to victims of press intrusion to elect between
lodging a complaint with the PCPP and bringing a legal action in the courts of
law. Only if the Council has authority to award compensation or grant an
injunction should the signing of a waiver be made a condition precedent to the
investigation of
complaints.[340]
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Recommendation 29 We recommend that a complainant should not be required to sign a waiver agreeing not to take any civil proceedings in respect of the subject matter giving rise to the complaint before his complaint can be investigated by the Council. |
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Recommendation 30
We recommend that where the Council has decided on a complaint, it may: (a) declare that the newspaper has acted in breach of the Privacy
Code;
(b) reprimand the newspaper;
(c) require the newspaper to publish on one or more
occasions: (i) an apology, and to decide on the form, content and location of such an apology; (1) a summary of the complaint; (d) publish the matters referred to in (c)(iii) above in one or more
newspapers circulating in Hong Kong.
|
8.63 It is necessary to give the Council a power to publish its findings and observations in a Hong Kong newspaper because the offending newspaper might refuse to publish the same as required by the Council.
8.64 We decide that the PCPP should not have power to award
compensation for the following reasons:
(a) The primary purpose of the Council is to regulate press intrusion, not to compensate victims of press intrusion for any harm done to them. Only if a newspaper is found to have committed a tort that it should be required to pay compensation to the victim. If the Council had power to award compensation, it would have the effect of widening the scope of the privacy torts proposed in the consultation paper on Civil Liability for Invasion of Privacy.
(b) We have recommended that complainants should not be asked to sign a waiver agreeing not to take civil proceedings in respect of the same subject matter. If a complainant could seek compensation by lodging a complaint with the Council as well as bringing civil proceedings in tort for damages, the newspaper would be subject to double jeopardy.
(c) Council members who are not lawyers would have difficulties developing the principles governing the award of compensation. Although the members may make reference to the law of damages in developing these principles, the issues involved are complicated and difficult to understand.
(d) If individuals were entitled to claim compensation by making a complaint to the Council, the Council would be required to decide not only whether there has been a breach of the Privacy Code, but also whether the breach has caused any harm to the complainant, and, if so, how the compensation should be assessed. Since it is likely that the Council would require the assistance of lawyers and expert witnesses to resolve these issues, the complaints procedure would become more formal, lengthy and costly.
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Recommendation 31 We recommend that the Council should not have power to award compensation to complainants. |
8.65 To ensure that the mechanism will be effective in
regulating press intrusion, the PCPP should have power to impose sanctions on
the offending newspapers. The sanctions should not be confined to a reprimand
and the publication of adjudications, apologies and corrections.
8.66 Under section 37 of the Television Ordinance (Cap 52), the
Broadcasting Authority may impose a financial penalty on a commercial television
company if it fails to comply with any Code of Practice issued by the Authority,
or fails to comply with any direction issued by the Authority under the
Ordinance. A financial penalty cannot exceed $50,000 for the first occasion on
which a penalty is imposed, cannot exceed $100,000 for the second occasion on
which a penalty is imposed, and cannot exceed $250,000 for any subsequent
occasion on which a penalty is
imposed.[341] The above penalties
were fixed in 1988. Given that the advertising revenue received by a television
company is enormous, the penalties have been criticised as being too low in a
notorious case.
8.67 We note that the maximum penalties that may be
imposed under the Control of Obscene and Indecent Articles Ordinance (Cap 390)
are as follows:
8.71 To ensure that the parties would be fairly treated, consideration may be given to allow the parties to be represented by lawyers whenever the Council finds it necessary to consider whether a fine should be imposed in a particular case. As far as financial penalty is concerned, we believe that the Council is as good a judge on the level of fine as a court of law.
Recommendation 32 |
8.72 It has been suggested that the PCPP should have power
to make an interim injunction prior to the Council adjudicating on a complaint.
Such an injunction may require a newspaper not to engage in intrusive behaviour
or republish a picture before the Council announces its findings. We agree that
it is possible that an aggressive newspaper with massive power might subject a
complainant to a campaign of intrusion or harassment which lasts for a number of
days. But a complainant whose privacy has been intruded a second time could
lodge another complaint to the PCPP. Each intrusion would be counted as a fresh
offence which could be made the subject of an investigation by the Council. The
Council would be in a position to fine the offending newspaper for each and
every breach committed by it against the complainant over a period of time. If
the conduct of a newspaper is serious enough to constitute the tort of
harassment, intrusion or public disclosure of private facts proposed in our
consultation papers on Stalking and Civil Liability for Invasion of
Privacy, the complainant may apply for an injunction by bringing civil
proceedings against the newspaper.
8.73 The next question is whether it would be necessary to seek
powers to enforce the adjudications. The Press Council in the UK rejected the
suggestion that its adjudications should be enforceable by judicial or
contractual means on the ground that this would involve a fundamental change to
an informal investigatory
process:[348]
“[The Press Council] did not see this as necessary or desirable for a simple, speedy and fair complaints procedure. If journalists, editors or proprietors risked having to obey a court order to comply with a Press Council adjudication, they would be likely to insist on all the procedural safeguards of a legal system. Investigations of complaints might well become increasingly formalised. The process might well become lengthier, legalistic and costly, not least because the Press Council would need to employ staff to carry out the enforcement procedure.”
8.74 We
are of the view that unless there is reason to believe that every newspaper
against which an adverse ruling has been made will be willing to pay a fine
and/or publish the critical adjudication, an apology or a correction as required
by the PCPP, all decisions of the Council should be enforceable against the
newspapers which have defaulted in complying with the requirements. In the
absence of any enforcement power, a maverick newspaper would flout the Privacy
Code and persistently refuse to comply with the adjudications, leaving the
Council in disrepute.
8.75 We therefore decide that (a) where a
newspaper was fined by the Council for committing a serious breach of the
Privacy Code but has defaulted in payment, the fine should be recoverable as a
civil debt in a court of law, and (b) where a newspaper was required by the
Council to publish an apology, correction or other matters but has failed to do
so, the Council should have power to impose a fine on the newspaper in default.
Our preliminary view is that the maximum fine should be in the order of
$500,000.
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Recommendation 33
We recommend that: (a) any newspaper which failed to publish an apology, correction or
other matters required by the Council should be liable to a fine; and
(b) any fine imposed by the Council should be recoverable as a civil
debt in a court of law.
|
8.76 The decisions of the Council may be subject to judicial review
in exceptional circumstances under general principles of law. A question arises
as to whether judicial review would be sufficient to meet the requirements of
Article 14 of the ICCPR. Article 14 provides procedural guarantees in civil and
criminal trials.[349] It
stipulates, inter alia, that “in the determination of any criminal
charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law.” Our preliminary view is that the
Council would be involved in the determination of “criminal charges”
and “rights and obligations in a suit at law” because of the
following reasons:
(a) A dispute concerning a breach of the Privacy Code involves legal rights and obligations because (i) the critical adjudications of the Council would be enforceable against the offending newspapers in a court of law; (ii) the right of privacy and freedom of expression under the ICCPR are implicated; and (iii) the decisions of the Council may affect the right to property enjoyed by newspapers.
(b) The sanction attached to a breach of the Privacy Code or non-compliance with a decision of the Council has a deterrent and punitive effect. The maximum fine that may be imposed on an offending newspaper is severe enough to render the sanction criminal in the sense of Article 14. The penalty is therefore of a punitive character which makes it similar to criminal sanctions as to its nature and consequences.
8.77 Although
we are satisfied that the Council could satisfy the requirements of a
“competent, independent and impartial tribunal established by law”,
we are of the view that hearings to be held by the Council could not meet the
requirements of a “fair and public hearing” under Article 14. The
availability of judicial review is generally insufficient because on an
application of judicial review, the courts do not review the merits of the
decision but confine themselves to determining whether the authority has acted
illegally, unreasonably or unfairly.
8.78 There are three options
available to ensure that the proposals comply with Article 14 of the
ICCPR:
Option A
The Council shall not have power to impose a fine for breach of the Privacy Code. In addition, all decisions of the Council affecting the newspapers found in breach of the Privacy Code shall not be enforceable at law. In other words, an offending newspaper which fails to publish an apology, correction or other matters specified by the Council shall not be liable to a fine. Any fines imposed by the Council shall not be recoverable as a civil debt.
Option B
The decisions of the Council shall be subject to the control of a judicial body that provides all the guarantees of Article 14 and has full jurisdiction on the law and the facts of the case, such as the Court of Appeal or the Administrative Appeals Board. Provided that the last stage of the proceedings fulfils all the requirements of Article 14, it is unnecessary for the Council to give a fair and public hearing.
Option C
The proceedings of the Council shall have all the guarantees of Article 14.
8.79 Since
a regulatory body without any sanctions would not be effective in regulating
press intrusion, and Option C would render the proceedings formal and
complicated, we prefer Option B and decide that any person aggrieved by a
decision of the Council may appeal to the Court of Appeal. The inclusion of the
Court of Appeal in the complaints procedure would facilitate oversight by senior
judges. Judgments handed down by the Court of Appeal might also develop into a
body of principles for the guidance of the press and the public.
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Recommendation 34 We recommend that any person aggrieved by any decision of the Council or anything contained in the Privacy Code may appeal to the Court of Appeal. |
8.80 The press and the academics have stressed that media education
for the press and the public can improve the professional standards of the news
media, raise the standard of public debate on media ethics, and increase public
awareness of their right to be protected from media abuse. We consider that the
PCPP should be under an obligation (a) to increase the awareness of the public
of their right to be protected from arbitrary interference with their privacy
under Article 17 of the ICCPR, and (b) to increase the awareness of the press of
their responsibility to exercise the freedom of the press under the Basic Law in
accordance with Article 19 of the ICCPR, in particular, the responsibility to
respect the right of privacy under Article 17 of the Covenant when exercising
press freedom. In addition, the Council should make an effort in promoting
awareness and understanding of the Privacy Code and its complaints procedure.
Since the Council would have a duty to keep the Privacy Code under review, it
should also have power to commission research into matters relating to press
intrusion.
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Recommendation 35 We recommend that the Council should have the following functions and powers: (a) to promote awareness and understanding of the
Privacy Code and the complaints procedure of the Council;
(b) to raise the awareness of the general public of their right to be
protected from arbitrary interference with their privacy under Article 17 of the
International Covenant on Civil and Political Rights;
(c) to raise the awareness of the press of their responsibility to
respect the right of privacy when exercising press freedom in accordance with
Article 19 of the Covenant;
(d) to give general comments on matters arising from the Privacy Code;
and
(e) to commission research into matters relating to press intrusion.
|
8.81 Although the PCPP should be independent of the Government, it
should nevertheless be accountable to the public especially if the Council is
funded by public revenue.
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Recommendation 36
We recommend that the Council should publish an annual report of its activities and lay copies of that report before the Legislative Council. In addition to annual reports, the Council may publish periodic reports each containing, as regards every complaint which has been dealt with by it in the period covered by the report, (a) a summary of the complaint and the action taken by the Council on
it;
(b) where the Council has adjudicated on the complaint, a summary of its
findings and decisions;
(c) where a newspaper is required to implement a decision of the
Council, a summary of any action taken by the newspaper; and
(d) any recommendations and comments it thinks fit to make.
|
8.82 We decide that the PCPP and its committees should be immune from
legal action in the exercise of their powers. An indemnity provision would
render statements, reports and other publications made by the Council and its
members, privileged for purposes of the law relating to defamation.
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Recommendation 37 We recommend that no liability should be incurred by: (a) the Council; in respect of anything done by the Council or such
member or employee in good faith in the exercise of powers conferred or
functions imposed by or under the legislation.
|
8.83 Adequate funding of the PCPP on a guaranteed basis is essential
to the success of the scheme. In the UK, all funds required for the operation of
the Press Complaints Commission are provided by the industry through the Press
Standards Board of Finance (Pressbof). The Board operates a scheme which levies
publishers on the basis of turnover. The costs of the Commission are shared
among the different sectors of the press industry, namely, national newspapers,
regional / local / free newspapers, major Scottish newspapers, and magazines.
The relationship between the UK Press Complaints Commission and Pressbof is that
“their budget has been met without demur on the footing that the
Commission remain wholly independent in their necessary expenditures but are
required to satisfy the board that their income has been spent on the purposes
for which the levy was
raised.”[350]
8.84 If the press in Hong Kong is concerned that Government funding
would undermine the autonomy of the PCPP, the Council may be financed by
contributions from the industry. The press may set up a foundation or trust
similar to Pressbof to ensure that the Council has all the financial support to
make it a success. Most press councils in other jurisdictions are funded by
newspaper publishers association and other press-related associations that
participate in the voluntary system. However, since three of the best-selling
newspapers are not members of the Newspaper Society of Hong Kong, it would be
unfair if the Society has to meet all the costs of the Council.
8.85 As
an alternative, the costs may be paid by the publications through a statutory
levy. This option is not without precedent. For example, the Office of the
Telecommunications Authority is funded by licence fees paid by the service
providers. The actual amount paid by a service provider depends on the number
of subscribers to its service. In the case of the PCPP, a convenient way would
be for the Registration of Local Newspapers Ordinance (Cap 268) to require all
newspapers and magazines to pay a fee as an appropriate contribution towards all
or part of the expenses of the Council as a condition of registration. The
amount of fee payable by a newspaper or magazine may be based on the proportion
of its circulation to the total circulation of all newspapers and magazines
registered under the Ordinance. Since company accounts are liable to be
manipulated, it is preferable to base the amount of the fee on circulation
figures which have been examined by external auditors rather than on the annual
profits stated in company accounts. As for newly registered newspapers, they
may be required to pay a flat fee as a start.
8.86 We consider that the
PCPP should be funded by the industry and not by the general public because the
need for the creation of such a body arises from the activities of the press.
The levy should not be an undue burden on the newspapers because they may
recover their share of the costs from the selling price.
8.87 If for any reason it is impractical to levy a fee on newspapers, the costs of setting up and maintaining the Council might be paid by the Government out of money appropriated for that purpose by the Legislative Council.[351]
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Recommendation 38 We recommend that the Council should be funded by way of a statutory levy on all newspapers and magazines registered under the Registration of Local Newspapers Ordinance (Cap 268). The amount of fee payable by a newspaper or magazine should be based on the proportion of its circulation to the total circulation of all newspapers and magazines registered under the Ordinance. |
|
Recommendation 39 We recommend that the Council should be provided with funds to appoint or employ a principal executive officer and such other persons as may be necessary for the efficient carrying out of its functions. In addition, the Council should be allowed to engage the services of technical or professional advisers to assist it in the discharge of its functions. Subject to the approval of the financing body, the Council may determine the remuneration and terms of employment or engagement of any person who may be so employed or engaged. |
8.88 As an interim measure, the first secretary of the Council
may be seconded either from the Government or the secretariat of the Legislative
Council with a tenure of six months. His main duty would be to provide
administrative support to the Chairman and other members of the Council,
particularly in the establishment of an office and the recruitment of supporting
staff.
8.89 We reiterate that press freedom will not be undermined simply
because publishers are not free to intrude into privacy without justification.
On the contrary, our proposals will:
[319] Privacy and Media
Intrusion, Fourth Report, (London : HMSO, 294-I, 1993) Volume I - Report
& Minutes of Proceedings, pp xxi –
xxiii.
[320] D Calcutt,
Review of Press Self-Regulation (London: HMSO, Cm 2135, 1993). See
chapter 3.
[321] It would initially be
for the complainant and the editor to determine whether the reply is
commensurate with the subject-matter of the complaint; but in cases where no
agreement could be reached, the tribunal would have the power to adjudicate and
to direct an editor to publish a reply. The tribunal should have the power to
substitute an amended version of the complainant’s reply if it considers
that that would be more
appropriate.
[322] Li Zhan,
Hsin Wen Dao De (Journalistic Ethics) (Taipei: San Min Bookstore, 1982),
274-275.
[323] PCC, “Key
Benefits of the System of Self Regulation”, at <http://www.pcc.org.uk/
about/benefits.htm> (15.1.99); PCC, “Can Self Regulation Achieve More
Than Law? - Text of the Wynne Baxter Godfree Lecture by the Rt Hon Lord Wakeham,
at The University of Sussex on Friday 15th May 1998”, at
<http://www.pcc.org.uk/adjud/press/pr150598.htm>.
[324]
Cap 268, s 2.
[325]
Publications excluded from the definition of “newspaper” include
academic journals, collections of photographic images, consumer information,
financial and economic reports, and newsletters relating to clubs, societies and
other organizations. See Schedule to Cap
268.
[326] Cap 268, section
2.
[327] In HKSAR v Cheung
Kam Keung [1998] 2 HKC 156, the court agreed that the uploading of computer
files or electronic data to a newsgroup on the Internet constituted a
“publication” under section 2(4) of the Control of Obscene and
Indecent Articles Ordinance (Cap 390). In HKSAR v Hiroyuki Takeda [1998]
1 HKLRD 931, the defendant was found guilty of publishing obscene pictures on
the Internet..
[328]
Secretary for Justice v Oriental Press Group, HCMP 407/1998, at
61.
[329] See B Hanlin,
“Owners, editors and journalists” in A Belsey & R Chadwick (ed),
Ethical Issues in Journalism and the Media (New York: Routledge, 1992),
ch 3.
[330] Guardian, 5
March 1990; cited in B Hanlin,
above.
[331] Cited in S
Jenkins, The Market for Glory (London: Faber & Faber, 1986), p 129.
[332] The Broadcasting
Authority Ordinance (Cap 391) imposes a similar requirement on members of the
Broadcasting Authority. Section 4(8) of the Ordinance provides that a person
shall be regarded as “ordinarily resident in Hong Kong” if he is
resident in Hong Kong for not less than 180 days in any calendar year; or 300
days in any 2 consecutive calendar
years.
[333] See Cap 1,
section 48.
[334] The
interests of these members in increasing their electoral appeal may work against
the impartiality required of a PCPP
member.
[335] But see Cap 1,
section 50.
[336] Television
Ordinance (Cap 52), section 28; Broadcasting Authority Ordinance (Cap 391),
sections 9A and 19.
[337] The
Complaints Committee of the Broadcasting Authority has 5
members.
[338] Summarised in
Report of the Committee on Privacy and Related Matters (London: HMSO, Cm
1102, 1990), paras 15.26 –
15.27.
[339] Report of the
Committee on Privacy and Related Matters, above, para
15.30.
[340] Where the
complainant has brought a legal action when lodging a complaint, the law of
contempt of court would
apply.
[341] For the financial
penalties that may be imposed on a commercial radio company, the figures are
$20,000, $50,000 and $100,000 respectively: Broadcasting Authority Ordinance
(Cap 391), section 24.
[342]
Section 21(1).
[343] Section
22(1).
[344] Section
24(2).
[345] Section
26.
[346] The figures are
quoted in The HKJA and ARTICLE 19, The Ground Rules Change - 1999 Annual
Report, pp 19-21. The Report points out that a comparison by circulation is
not possible because the Oriental Press Group is not a member of the Hong Kong
Audit Bureau of
Circulation.
[347] Calcutt
recommended that the maximum level of fine which the proposed press complaints
tribunal could award against a publisher should be equivalent to 1% of the
publication’s net annual revenue. Sir David Calcutt QC, Review of
Press Self-regulation, above, para 6.20. We have considered linking the
level of penalty to the level of circulation of the newspaper concerned, but a
difficulty with this approach is that a significant portion of a
newspaper’s income derives from advertising. The reliability of
circulation figures is also a matter of concern. Not all newspapers are members
of the Hong Kong Audit Bureau of
Circulation.
[348] Report
of the Committee on Privacy and Related Matters, above, para
15.13.
[349] See generally
Manfred Nowak, U. N. Covenant on Civil and Political Rights – CCPR
Commentary (1993), chapter on Article 14; P van Dijk & G J H van Hoof,
Theory and Practice of the European Convention on Human Rights (1998),
section on Article 6; D J Harris, M O’Boyle & C Warbrick, Law of
the European Convention on Human Rights (Butterworths, 1995), chapter
6.
[350] David Calcutt,
Review of Press Self-Regulation (London: HMSO, Cm 2135, 1993), para
3.91.
[351] For instance, the
expenses incurred by the Solicitors Disciplinary Tribunal and by the Law Society
in connection with proceedings before the Disciplinary Tribunal are payable out
of general revenue: Legal Practitioners Ordinance (Cap 159), section 25.