Hong Kong Law Reform Commission

Chapter 1 - Public responses to the Consultation Paper

1.1 The Privacy Sub-committee concluded in the Consultation Paper on Media Intrusion that there was a pressing social need to protect members of the public from unwarranted invasion of privacy by the print media. Since they considered that voluntary self-regulation was unlikely to succeed in the near future, the Sub-committee provisionally recommended that an independent Press Council for the Protection of Privacy ("PCPP") be created by law to deal with complaints from members of the public about breaches of a press code on privacy-related matters. The Sub-committee recommended that the members of that Council be appointed by an independent Appointments Commission, the members of which (including the chairman) should be appointed by an independent person, who should be chosen by the Chief Executive in consultation with the press industry.

1.2 The Sub-committee further recommended that the Council should consist of not less than 12 nor more than 20 members. Half of them (excluding the Chairman) should be drawn from members of the public and the other half from members of the press. Any person, whether or not they are related to the press, should be entitled to make nominations for press membership in the Council. Further, a retired judge or a senior lawyer should be appointed to be the Chairman, and the Privacy Commissioner should be designated as an ex officio member of the Council.

1.3 As regards the powers and functions of the Council, the Sub-committee recommended that it should have the power to receive complaints (including third party complaints) of alleged breaches of a Privacy Code drawn up by the Council; to initiate its own investigations; to attempt conciliation before a complaint is investigated; and to rule on alleged breaches of the Code. The Council should be under an obligation to ensure that the complaints procedure is fair to the parties. Where the Council has decided on a complaint, it may declare that the newspaper has acted in breach of the Code; reprimand the newspaper; require it to publish an apology, correction or the findings of the Council; or impose a fine on a newspaper which is found to be in serious breach of the Code. The maximum fine should be $500,000 for a first offence and $1,000,000 for a second or subsequent offence. A newspaper which failed to publish an apology, correction or other matters required by the Council should also be liable to a fine. A person aggrieved by any decision of the Council or anything contained in the Code should have a right of appeal to the Court of Appeal.

1.4 During and after consultation, some commentators suggested that the Sub-committee's proposals in their Consultation Paper were made at the behest of the Chief Executive and the Administration, or that the latter had influenced the deliberations of the Sub-committee in order to achieve the object of controlling the media. These allegations call into question the integrity and independence of those who have given their service to the Sub-committee voluntarily for over 12 years. The Sub-committee firmly denies these allegations. The Sub-committee's work on media intrusion began in mid-1997, and the need to examine this aspect of privacy was recognised as early as 1994 when the Commission published its Report on Reform of the Law Relating to the Protection of Personal Data.[2] The Sub-committee's proposals were the product of full and frank discussion of the issues involved. Neither the Government nor any interest group dictated to the Sub-committee any aspects of its recommendations.

1.5 The Sub-committee received about 80 written submissions. The list of respondents is at Annex 1. Comments made by private individuals and NGOs have also been taken into account in reaching our conclusions. In reviewing the preliminary proposals in the Consultation Paper, we have taken careful note of the degree of public support or censure accorded to each proposal. We are grateful to all those who have contributed to the debate, particularly those who have taken the time and trouble to send in a written submission. Broadly speaking, the respondents can be divided into eight categories:

(a) respondents who agreed in principle with the Consultation Paper's proposal to establish an independent Press Council for the Protection of Privacy by law;

(b) respondents who did not agree with all the recommendations in the Consultation Paper but agreed that an independent press council should be established by law;

(c) respondents who preferred a self-regulatory press council with a statutory basis provided by a Private Member's Bill;

(d) respondents who agreed that the Government had a role to play in ensuring that a self-regulatory press council was successful;

(e) respondents who preferred a voluntary press council without excluding the possibility of Government involvement if the voluntary body was later found to be ineffective;

(f) respondents who preferred a voluntary press council (with or without other self-regulatory measures);

(g) respondents who preferred self-regulatory measures other than the establishment of a voluntary press council;

(h) other respondents who expressed major objections to the proposals in the Consultation Paper.

1.6 We should stress that this classification is for convenience only and merely aims at giving the public a general idea of the perspectives taken by the respondents. A respondent should not be labelled solely by reference to the category into which he has been classified. The categories are not mutually exclusive and there is some overlap between them.

1.7 Before we summarise the views of the respondents, we think it would be helpful to quote the opinion of Professor Yash Ghai of the Faculty of Law at the University of HK. Although Professor Ghai was unhappy with the tone of the Consultation Paper, which he felt tended to undervalue the importance of the media, he agreed that the Sub-committee had an arguable case for its proposals. He preferred a scheme of self-regulation by the industry itself, but at the same time noted that the Consultation Paper had offered persuasive arguments why self-regulation was unlikely to be effective – at least until there was a major change in the attitude of the proprietors and editors of leading papers, and a willingness to accept, and police, self-imposed restrictions. Professor Ghai pointed out that the Sub-committee's proposals were narrow and specific in scope. They were concerned with press intrusion on a person's privacy, when a person's conduct or affairs were of no public concern. They did not deal with other aspects of the freedom of expression. He said:[3]

"Whether restrictions on press intrusion into a person's privacy are inconsistent with its freedom depends substantially on the reasons why we value press freedom. We value press freedom because the press can expose corruption in public and private spheres, facilitate the accountability of the government, inform the public on matters of general concern, promote public debate on policy and ethical questions, and provide a forum for the expression of views of the people. Intrusion on people's privacy does not promote these objectives, except when relevant questions of the morality or competence of those in charge of public affairs are concerned. Publication of private grief or conduct serves little public interest; and provides no justification for the violation of the right to privacy of those whose life is so openly paraded in newspaper columns. It panders to readers' sense of titillation, debases the nature of public discourse, and leads to a downward spiral in the ethics and practice of journalism.

Any regulation of the press is undesirable. But in the face of widespread disregard of the rights and privacy of individuals and irresponsible journalism, some regulation may be unavoidable. It should also be recognised that the press is in many ways in a more favourable position than individuals or other groups with regard to the exercise of the freedom of expression. Unlike them, the media has large resources. It deploys enormous influence with those in authority. It shapes and mobilises public opinion. It has powerful sanctions against those who oppose it. It is now internationally accepted that the nature and scope of restrictions on the freedom of expression may depend on the reach and influence of the media, especially as regards restrictions to do with morals, ethics and privacy."

(a) Respondents who agreed in principle with the Consultation Paper's proposal to establish an independent Press Council for the Protection of Privacy by law

1.8 Heung Yee Kuk New Territories agreed to the introduction of measures to deal with complaints about press intrusion and breaches of a press code. The Kuk suggested that the press council should draw its members from different sectors and walks of life so that the public could have confidence in it. The HK Association for School Discipline and Counselling Teachers supported the Sub-committee's proposals. However, it considered that the PCPP should be expanded to become a Media Council, which would not only deal with privacy issues, but also issues such as undue publicity of sex and violence, false and inaccurate reports, and glorification of crime. The HK Federation of Women commented that intervention by law should not give rise to criticism if the press failed to regulate themselves. Freedom from press intrusion was as important as freedom of the press; nor were press freedom and legal regulation irreconcilable. The HK Performing Artistes Guild noted that the local media had abused press freedom in recent years. It commented that their practice in gathering and reporting news had degenerated: from being civilised to vulgar and even to flagrant intrusion upon the privacy of individuals. The HK Women Professionals & Entrepreneurs Association agreed with the proposals so long as public interest and press freedom were given prime considerations. Press representatives should be increased to at least 60%, as a wider representation would mean greater involvement of the profession, and hence a greater likelihood of compliance.

1.9 Several private citizens also supported the proposals. Mr S Wong commented that all persons working in the media had a vested interest in this area. He therefore suggested that the Appointments Commission should be appointed by a panel of judges instead of the Chief Executive. Dr Angela W Y Ng, a registered doctor, commented that the ambit of the proposed PCPP was very restricted. She considered that the ambit should be expanded to cover the publication of pornographic and indecent materials, false and inaccurate reports, and libellous material that did not involve privacy intrusion. She agreed with Dr Alexander Ng, Vice-Chairman of the Association of Licentiates of the Medical Council of HK, that there should be an effective mechanism to monitor the press.[4] Mr Harry Macleod, Deputy Director of Public Prosecutions, agreed with the proposals. He pointed out that it was clear that there were abuses by some sections of the media. This had led not only to distress, embarrassment and humiliation to those individuals concerned, and their families, but had also in some instances threatened the administration of justice. He could not see how the proposals could in any way undermine or diminish the important role of a free press in Hong Kong.

1.10 Another respondent, who was a medical practitioner, believed that self-regulation by the journalistic profession would not succeed. He noted that journalists had to write their reports according to the policy laid down by the newspapers proprietors. It was rare for journalists to recognise their editorial independence and even rarer to exercise it to any significant degree. Journalists would be fired if they acted contrary to their employer's wishes. Moreover, the three most popular newspapers belonged to two belligerent camps whose animosity and mutual contempt would prevent them from co-operating towards a common cause. He therefore supported the Sub-committee's proposals.

(b) Respondents who did not agree with all the recommendations in the Consultation Paper but agreed that an independent press council should be established by law

1.11 The Society for Truth and Light proposed setting up an independent statutory news council whose members are not appointed by the Government. The following were their major recommendations:

(a) Half of the members should be elected by bodies that were representative of the news media. The remaining half should be elected by bodies that were representative of other interested parties, such as the education sector, the social welfare sector, the legal sector, parents' groups and media concern groups. The Privacy Commissioner and a representative from the Television and Entertainment Licensing Authority might also be members.

(b) The Chairman should be a retired judge or an experienced legal professional appointed by the Government. However, the appointment must be approved by a resolution passed by other members of the Council.

(c) The main functions of the Council should include the following: (i) to draw up and keep under review a professional code for the news media; (ii) to receive and inquire into complaints from the public; to hear representations made by both parties; and to adjudicate on complaints; (iii) to censure in public, reports that were in breach of the professional code; offending organisations should be obliged to publish the reprimand and the length of the text should be such as was specified by the Council.

(d) The Council should be immune from libel actions.

(e) Its secretariat should be funded by the Government.

(f) The ambit of the Council should not be confined to privacy. It should be extended to reports that give undue publicity to sex and violence, reports that are false and inaccurate, and those that glamorise crime.

(g) Newspapers that were found to have breached the code could be admonished or reprimanded. No fine should be imposed for the first offence. However, for the second or subsequent offences, the maximum fine should be $500,000. In order to give room for small newspapers to survive, the level of fine actually imposed should depend on the sales figure of the offending newspaper.

(h) The Government should set up two funds. One would be to assist victims of press abuse whose complaints had been upheld by the Council to sue the organisation at fault for damages. The second would be to provide organisations with financial assistance to promote media education.

1.12 The Campaign Against Information about Sex and Violence, the Society for Truth and Light, the Boys' & Girls' Clubs Association of HK, the HK Association for School Discipline and Counselling Teachers, the Cooperation Scheme of School and Social Work, the Federation of Parent-Teacher Associations in Wong Tai Sin District, and the Committee on Home-School Co-operation made a joint submission. They considered it necessary to set up an effective non-government-appointed media council to deal with the misconduct of the media. They proposed that the ambit of that body should not be confined to privacy matters. Rather, it should be extended to include news reports which played up sex or violence, glamourised crime, or were based on facts that were deliberately fabricated. The members of that body should be elected by interest groups within and without the press industry. While half of the members could be elected by various organisations in the media industry, the body should also have representatives from various interest groups in the community (such as teachers, social workers, lawyers, parents, academics and the Privacy Commissioner). The body should have authority to: (a) formulate and keep under review a code of practice for the news media; (b) receive and conduct investigations into complaints from the public; (c) publicly censure coverage that contravened the code of practice; and (d) require the organisations concerned to publish the censure in such size as was specified by the body. The power to impose a fine should not be excessive. Further, the body should be immune from libel actions.

1.13 Ms Joyce Yee-man Nip, Assistant Professor of the Department of Journalism at HK Baptist University, commented that the PCPP should not have power to impose a fine and should be constituted by election on the basis of individuals.[5] However, out of pragmatic considerations, votes could be restricted to members of the press and certain sectors of society, such as education, culture and social work. Ms Nip agreed that the Council should have the power to require newspapers to publish an apology or correction as required, and that failure to publish the apology or correction should attract a small fixed fine. Moreover, the elected press council should be funded by way of a statutory levy on newspapers and magazines. To ensure co-operation from newspapers and magazines, Ms Nip considered it desirable that the Council should have a statutory status. She justified the regulation of media intrusion by an elected body created by law on the ground that proper and legitimate regulation could help the news profession to play the social role expected of it more effectively. Dr Kwan Kai-man, Assistant Professor of the Department of Religion and Philosophy at HK Baptist University, also favoured the creation of a non-governmental statutory monitoring body, the members of which should come from the press and the general public.

1.14 Mr Lau Nai-keung considered that the proposed PCPP was a feasible mechanism but had weaknesses.[6] He commented that the press council should have the following features:

(a) It should be created by statute and have the status of a private body sponsored by the Government.

(b) It should be vested with the authority to receive and investigate complaints; publish the results of investigation; and censure the offending organisations.

(c) It should, when necessary, represent the public or victims in instituting legal proceedings against an offending organisation.

(d) Its funds should be appropriated by the Legislative Council.

(e) In relation to its membership, the Government could initially draw up a list of organisations after public consultation. The organisations on the list would then nominate representatives to the council in an open, fair and just manner prescribed in the legislation. This list should be reviewed through public consultation every five years.

(f) Its jurisdiction should cover the print media as well as the broadcast media; and the ambit of the council should include undue coverage given to sex and violence, glorification of crime, and incorrect, unfair and inappropriate reports.

(c) Respondents who preferred a self-regulatory press council with a statutory basis provided by a Private Member's Bill

1.15 The HK Bar Association[7] considered that there should be some form of mechanism to address the mischief and to uphold professional standards. This should be seen as a means of reinforcing professionalism rather than a threat to press freedom. The Bar therefore supported the existence of effective media regulation. The question was what form of media regulation should be in place. Whatever be the form of media regulation, it should be effective; the process of regulation should be transparent; and no single media organisation should dominate the process.

1.16 The Bar did not support the establishment of a statutory press council as proposed by the Sub-committee because there was Government involvement and the council had power to impose substantial financial punishment. The Bar submitted that the Sub-committee had not come up with an effective mechanism to ensure that the chair of the Appointments Commission was a truly independent person. The Bar argued that the relevant yardstick under the proposal was that of the Chief Executive. Once the Chief Executive's decision had been taken to appoint a particular individual, it would be difficult to see whether and, if so, how that decision could be effectively challenged, even if in theory judicial review might be available. It followed that there could be a legitimate fear that political contamination would transmit across the layers or the bodies.

1.17 The Bar agreed that a press council must have teeth. However, it pointed out that these could be in the form of powers of censure or reprimand, or to compel an apology and/or a correction to be printed. The Bar noted that none of the proposals to set up a non-statutory monitoring body could in truth be effective without the participation of all newspapers and magazines in Hong Kong and, in particular, the dominant papers which found themselves under constant public attacks for breaching media ethics. The Bar also did not believe that market censure would work. Even if a boycott were successful, it would not provide any meaningful redress to the aggrieved individual whose interest was of paramount concern.

1.18 In the Bar's view, an effective monitoring body must have statutory backing with jurisdiction over all print media; must be truly free from Government interference; and must provide quick and accessible redress to parties aggrieved by the press. In this respect, the Bar agreed with the proposals of Professor Johannes Chan:

(a) A Private Members' Bill should be tabled before the Legislative Council for the establishment of a statutory press council. The drafting of this Bill could be left to the media. The role of the Government would then be confined to commenting on the procedural propriety of the Bill and not its content.

(b) The press council should comprise both members of the media and other lay members.

(c) It should have jurisdiction over all print media in Hong Kong, which would include all magazines and newspapers.

(d) It should receive and handle complaints from the public as well as initiate its own investigations.

(e) Once a complaint was upheld, the council should have power to reprimand the paper or order that an apology and/or correction be published by the offending newspapers in a prominent place. However, it should not have the additional powers of imposing financial penalties, which should be a matter for the court, except when its rulings were flouted.

(f) The press council could formulate its own code of ethics. The draftsmen of the code should be familiar with, and experienced in, the media.

(g) The code should primarily be directed at media intrusion on privacy and inaccurate reporting, with room for future expansion to cover sleaze, violence and improper news collecting methods.

(h) The legislation should confer protection by qualified privilege in respect of anything done by the council, its members or employees in good faith in the exercise of powers or functions conferred by legislation.

1.19 Before Professor Johannes Chan became a member of the Privacy Sub-committee, he pointed out that establishing a voluntary press council to receive and deal with complaints from the public suffered from the following drawbacks:

(a) If news organisations that have a large share of the market chose to stay out, the authority and credibility of the council would be called into question from the very beginning.

(b) The council would not have jurisdiction over news organisations that had not participated in the scheme. News organisations that were not members could refuse to appear at its hearings.

(c) As regards news organisations that had agreed to participate, the council would not have any effective means to enforce its adjudications where the offending news organisation did not agree to the adjudication and refused to publish its decision.

1.20 Professor Chan argued that a Private Member's Bill could obviate the danger of Government interference, while at the same time conferring legal status and authority on the press council so that it would not be a body that could be dissolved at any time, or that might become a toothless body with no enforcement mechanism. The council needed to have statutory authority because a voluntary body would be loosely organised and would only bind organisations which had become members.[8]

1.21 Both the HK Christian Service and Professor Leonard L Chu, Dean of the School of Communication at HK Baptist University, supported the proposal made by Professor Johannes Chan. Dr Anne S Y Cheung, then Assistant Professor of the Department of Law at the University of HK, also supported Professor Chan's proposal. However, she argued that it would be more appropriate to utilise the existing regime under the Personal Data (Privacy) Ordinance to regulate media intrusion, which could be more effectively dealt with by extending and redefining the power of the Privacy Commissioner. If the Sub-committee concluded otherwise, the Press Council should have the following features:

(a) independent from the Government, with no proactive power;

(b) uphold the twin missions of defending press freedom and promoting accountability;

(c) deal with complaints concerning media practice in other areas;

(d) sanctions mainly limited to the use of publicity;

(e) media organisations should be given a chance to resolve complaints before investigation starts; and

(f) a waiver should be included to avoid overlapping jurisdictions.

(d) Respondents who agreed that the Government had a role to play in ensuring that a self-regulatory press council was successful

1.22 Caritas-HK (Youth and Community Service) considered that self-regulation by the media was the best mechanism. Nevertheless, they recommended that the Government should support the work of the voluntary press council, for example, by granting immunity from libel suits to the council by legislation, and financing the day-to-day operations of the council.[9] In a newspaper article,[10] Mr To Yiu-ming, Assistant Professor of the Department of Journalism at HK Baptist University, commented that Government intervention was necessary because of market failure, but this fact did not entitle the Government to monitor the press by allowing the Chief Executive to appoint members of the press council. The objective of the Government should be to strengthen the ability of the press to regulate itself. For instance, it could provide financial support; enact legislation granting privilege to the press council for commenting on the performance of the press; offer assistance in the establishment of a secretariat; and provide legal consultancy services. Any involvement beyond these should be kept to a minimum. Mr To further commented that the authority of the council must be founded on principles of democracy to guarantee its credibility. The members of the council should be returned by a democratic election in which editors and reporters participated so that the council could be representative of the industry.

(e) Respondents who preferred a voluntary press council without excluding the possibility of Government involvement if the voluntary body was later found to be ineffective

1.23 The Privacy Commissioner for Personal Data pointed out that invasion of an individual's privacy and unauthorised collection and use of personal data did not necessarily occur simultaneously. The number of complaints against the media received by his office was low. However, non-contravention of the PD(P)O did not preclude a finding of an invasion of privacy; unwanted publicity given to an individual's private life by a media organisation might not contravene a data protection principle.

1.24 The Commissioner supported the creation of a voluntary self-regulatory press council rather than a statutory body as recommended. However, he qualified his support by stating that the voluntary body must be made to work effectively. He stated that to be effective, there must be "equitable representation" of three categories of rights (自律三權), namely: (a) the rights of the press (ie, freedom of expression, and freedom to investigate and report in the public interest); (b) the rights of the individual (ie, the right to privacy, the right to be informed, the right to truth and the right to dignity); and (c) the rights of the community (ie, the right to the rule of law).[11]

1.25 The Commissioner suggested that the press council should have the following features:

(a) The chairperson should not be a member of the industry, but should be nominated and selected by the professional associations that represented the print media.

(b) The other members should be equally divided between those representing the rights of the press, and those representing the combined rights of the individual and the community.

(c) Press members must include proprietors, editors, and journalists.

(d) The members representing the interests of individuals and the community could be drawn from the statutory bodies (eg the Privacy Commissioner's Office, the Equal Opportunities Commission and the Consumer Council), academia, the legal profession and members of the public.

(e) The Privacy Commissioner should be represented on the council because issues concerning privacy and the collection and use of personal data are the very substance of his work.

(f) One of the functions of the council would be to draft a code of professional practice or ethics. Matters pertaining to press collection and use of personal data should be an integral part of the code.

(g) The rulings of the council should be binding on members.

1.26 The Commissioner continued that after a reasonable period of time had elapsed, the work of the council should be subject to an independent review of its effectiveness. The review panel should consist of three members: (a) a representative of the public nominated by the Legislative Council; (b) a representative of the press nominated by the council; and (c) a retired High Court judge nominated by the Chief Justice. The review panel's report should be presented to the Government. The Commissioner listed the "critical success factors" for determining whether the council was effective:

(a) support for the council from mainstream press players;

(b) the ability to resolve resourcing and funding considerations;

(c) the ability of members to strike a reasonable balance between the interests of the three rights;

(d) the speedy drafting of a workable press code;

(e) development of an effective complaint and redress mechanism;

(f) members' compliance with Council rulings; and

(g) the exercise of influence in gaining acceptance of rulings by all parties.

1.27 The Commissioner concluded that if the council did not live up to public expectations, this might make it more likely that a statutory body would be established to address media intrusion.

1.28 The HK Council of Social Service thought that the Consultation Paper should be concerned not only with privacy matters, but should also monitor sensational treatment of sex and violence in news coverage, as well false or inaccurate news reports, and those which glorified crime. It noted that some media reports had exposed in detail the family background and personal particulars of the victims involved, causing further harm to the victim and his family. It proposed that a non-governmental media council be set up by the media to undertake various monitoring functions and to let the public express their views on news coverage. The Council of Social Service suggested that more than half of the members should be elected by media associations, and representatives of various organisations in society, including the Privacy Commissioner, should be invited to become members. However, if the media did not form a media council or the council was not made to run effectively, other means of setting up a credible monitoring agency should be considered, and the possibility of government involvement in the monitoring work should not be ruled out.

1.29 In the view of Dr Kenneth W Y Leung, Associate Professor of the School of Journalism and Communication at the Chinese University of HK, media organisations that were unwilling to regulate themselves should be subject to regulation by a third party insofar as they had abused their freedom of speech in order to obtain commercial gains for their own advantage.[12] He said that the problem of ensuring that all media organisations participated in the self-regulatory system, and that of effective enforcement of adjudications, could be resolved if a statutory body were established. However, he considered that the media should be allowed to keep its house in order by way of a voluntary press council. It was only if the situation had not improved in two years' time that the proposal to establish a statutory body should be revisited. Dr Leung thought that Professor Chan's proposal was worth trying.

(f) Respondents who preferred a voluntary press council (with or without other self-regulatory measures)

1.30 The Newspaper Society of HK agreed that there was a problem of privacy intrusion in some news reports. However, it did not accept the view that the press could not regulate itself. The Society believed that the problem could be resolved by self-regulation. It was therefore in favour of creating an independent press council, which comprised representatives of newspapers and members of the public, and did not have power to impose punishment. Membership of the Council would be voluntary. The Society respected the stance of those newspapers that were sceptical about the idea of a press council. It believed that the operations of the council would not be seriously affected by their absence. If the council could operate smoothly in the future, then newspapers which were sceptical would be moved to join. The HK Chinese Press Association did not deny that certain individual news organisations had committed some glaring transgressions, but was of the view that existing measures were sufficient to deal with the problems. It did not perceive a need to create a media council. The Society of Publishers in Asia believed that the creation of the proposed PCPP might inhibit free speech or have a chilling effect on the exercise of free speech. The council might also undermine the values and functions of freedom of expression. The Society preferred a self-regulatory approach, such as the establishment of a non-statutory, independent press council, which could address privacy concerns without adverse implications for press freedom. The HK News Executives' Association commented that the proposed PCPP could not be truly independent of the Government if the very first step in its establishment involved an appointment by the Chief Executive. The Association thought that a non-governmental organisation, exempt from legal liability, would be the most appropriate self-regulatory mechanism to monitor the news media and to adjudicate on complaints received from the public.

1.31 The HK Federation of Journalists preferred an independent press council constituted by industry representatives and members of the public to handle complaints from the public about press intrusion. The School of Journalism and Communication at Chinese University of HK and the School of Communication at HK Baptist University submitted that the proposal should be shelved because it contradicted the spirit of upholding the freedom, independence and autonomy of the press. They urged the news media to set up an independent, representative and effective self-regulatory body, and the public to translate their dissatisfaction against the media into action by boycotting the inferior media.

1.32 The South China Morning Post believed that the establishment of a "government-authorized and supervised committee" with the power to punish publications which printed material disliked by a committee majority could pose a serious threat to political freedoms as well as freedom of the press. It advocated the founding of a press council modelled after the Press Complaints Commission in the UK. Television Broadcasts Ltd supported the establishment of a PCPP in principle, but was of the view that the Council should be formed by the industry itself and its members should not be appointed by the Government. Metro Broadcast Corporation Ltd agreed that an independent media council should be established to protect members of the public from unwarranted media intrusion, except that it should be established by the industry itself. It commented that the decisions of the council should be binding on the whole industry.

1.33 The Citizens Party opposed the establishment of a statutory press council. It said that the decision to publish or not was often subjective and could vary among practitioners. What was proper journalistic conduct in a particular set of circumstances would depend on a journalist's professional judgment. The Democratic Alliance for Betterment of HK did not think that the proposal could deal with complaints against the press without impinging on press freedom at the same time. No matter how little Government involvement there might be, the proposed PCPP would be regarded as a tool for the Government to interfere with press freedom. The HK Democratic Foundation saw no place for any Government-appointed regulatory body, no matter how indirect a role the Government might play in its appointment. Irrespective of the Government's intentions, such a body would be perceived as a constraint and possible threat to press freedom. It recommended the establishment by the media of its own press council, and that journalists should be provided with contractual protection from forced contravention of these standards and ethics by their editors and proprietors. It further recommended that the terms of reference of the Privacy Commissioner be expanded to encompass the issue of privacy as a whole and that the scope of the PD(P)O be expanded to cover issues of privacy protection in general.

1.34 The Democratic Party objected to the establishment of a Government-appointed press council. It held the view that the proposal to set up an Appointments Commission to appoint members of the press council was a disguised form of appointment by the Chief Executive of a Government press council. It believed that a voluntary self-regulatory body could serve the purposes of monitoring and education at the same time. The Frontier commented that there was no way to ensure that the proposed PCPP, once created, would not be controlled by the Government. It considered that the disadvantages of a press council far outweighed any advantage that it might bring. The Liberal Party did not support the creation of a Government-appointed council because, no matter how well-intentioned it might be, the council would suffer from the fundamental defect that it would be Government-appointed or directly or indirectly appointed by the Chief Executive, thus engendering the community's prejudice against it. The Party was also critical of the proposed council having the power to impose punishment.

1.35 The Boys' & Girls' Clubs Association of HK considered that the problem of media intrusion into the private lives of children in Hong Kong was very serious. It noted that children, whether or not they were parties to a news story, were likely to become the subject of media attention in local media coverage. Although the private lives of children were not matters of public concern, where an adult had become a public figure through a newsworthy event, particulars of the child's private life were sometimes revealed and his privacy intruded upon merely to make the report more interesting to read. The Association therefore considered it necessary to set up a media-monitoring body, but to avoid undermining press freedom, believed a non-governmental body was more desirable.

1.36 The Cooperation Scheme of School and Social Work (which comprised the Learner-Teachers' Association; the HK Federation of Youth Groups, the HK Young Women's Christian Association; the HK Professional Teachers' Union; the HK Social Workers' General Union; and Caritas-HK (Social Work Services)) thought that the proposal set a bad precedent for the Government interfering with press freedom. The Scheme proposed that media conduct be monitored by a media council, the members of which should include organisations having an interest in the performance of the media, such as teachers, social workers, parents, the legal profession, academia and the Privacy Commissioner, as well as representatives of media associations. The council should have jurisdiction over all kinds of media, and the media-transmitted contents to be monitored by the council should include reports that contained an extravagant depiction of sex or violence, and stories that were fabricated or inaccurate, or which glamourised crime. It should also issue a public reprimand against media organisations that had breached its code of conduct, and the latter must publish a notice in the specified format. The council should be immune from liability for libel.

1.37 The HK Psychological Society acknowledged that the media was expected to play a watchdog role in monitoring the activities of the Government and other public bodies. However, the media might reflect "sicknesses" which exist in society, and could reinforce such "sicknesses" through sensationalism. The Society did not believe that self-regulation could work, given the fierce commercial competition for market share and the media's past record. It supported the establishment of an independent press council which was free from Government intervention at all levels to handle complaints of alleged breaches of a privacy code. Ms Mary M W Lee, a professional psychologist, commented that it was insufficient to rely solely on the media's self-discipline. She recommended the establishment of an independent publicly funded mass media body. She hoped that this body could reflect minority interests, express different voices, and be driven by human values instead of market needs. An independent complaint channel should also be created to investigate complaints and recommend ways for rectification. Ms Lee firmly believed that ethical practices and autonomy of the press could co-exist. She added that the powers of the council should be adequate (but not excessive) so that it could make constructive and healthy change to the "sick culture" of the mass media. Mr Grenville Cross, SC, Director of Public Prosecutions, felt that the media should be given a chance to prove that self-regulation works, given that the Legislative Council was in favour of self-regulation. If the original proposal was to be pursued, then a wholly independent mechanism for making appointments was called for. For example, the members could be elected through representative voting by the media, legal practitioners, social workers, etc. He did not favour a power to fine and the possible involvement thereafter of the Court of Appeal, though the powers to issue a reprimand and to order that the newspaper at fault should publish an apology should be put in place. If they did not prove to be salutary, then the fine could be considered at some later stage.

(g) Respondents who preferred self-regulatory measures other than the establishment of a voluntary press council

1.38 The HK Journalists Association was of the view that there should be no Government involvement in the regulation of media content and ethics, particularly when democracy (and therefore the checks and balances on the Executive) was fragile and incomplete. It was therefore in favour of a non-statutory approach. It proposed that media groups and newspapers should draft and adopt a common code of ethics, and once there was sufficient agreement on the code, representative organisations should endeavour to incorporate its terms into journalists' employment contracts. Newspapers should also be encouraged to appoint their own independent ombudsmen, and to accept and investigate complaints from the public. The Association further proposed that media organisations should "in the longer term" consider setting up an industry-wide ethics committee (without public representation) to take public complaints based on alleged breaches of the common code of ethics. A timetable for considering whether to set up a non-statutory press council with public representation should also be set by the profession.

1.39 The HK Press Photographers Association acknowledged the importance of privacy and admitted that incidents of media intrusion were far from rare and therefore unacceptable. However, it believed that neither a PCPP appointed directly or indirectly by the Government nor a press council formed by citizens was desirable. The Association commented that any intervention by the Government would lead to doubts about the independence and autonomy of the press. It would also deal a severe blow to the credibility of the press and severely undermine the healthy development of the press. The Foreign Correspondents' Club of Hong Kong objected in principle to the creation of any form of statutory oversight body, believing that those news organisations which failed to meet the public's expectations and offended community sensibilities would ultimately fail in the marketplace of ideas. The Club submitted that the Sub-committee had failed to make the case that existing laws, properly applied and enforced, were insufficient to the task, or that careful amendment of those laws could not make them better. Apple Daily submitted that the proposal to set up a Government-appointed press council with wide-ranging power would inevitably curtail press freedom and undermine the public's right to know.

1.40 The Law Society of HK commented that the proposed sanctions, apart from the fines for serious breaches, were ineffectual. It held the view that the media was unlikely to improve its standards if an offending newspaper had to face only a mere "reprimand" or an order that it should publish an apology to the complainant. However, the Law Society concluded that it was more appropriate for the media to exercise self-regulation and to put its own house in order. If the media failed to do so, then it would be appropriate for the matter to be revisited. The Justice & Peace Commission of the HK Catholic Diocese thought that any press council created by law, or appointed by the Government, or created with the involvement of the Government, could never be free from speculation about Government intervention. It considered that a better way would be to let public opinion monitor the press and exert pressure on them. Breakthrough had "strong reservations" about the establishment of a press council or any statutory body to monitor the media.

(h) Other respondents who expressed major objections to the proposals in the Consultation Paper

1.41 The HK section of the International Commission of Jurists (JUSTICE) believed that the Sub-committee had failed to present in a balanced way all the possible options dealing with the problem of media intrusion, including amendments to the PD(P)O, self-regulation through a press council or press ombudsman (whether with statutory powers and immunities or not), and legislation creating torts of infringement of privacy. The HK section of JUSTICE thought that the Consultation Paper discounted the utility of these options and degenerated into a piece of advocacy for a favoured option, namely the establishment of the PCPP. It therefore argued that the public had been deprived of the opportunity of properly examining and commenting on each of these options in detail, and of choosing any of them (whether to be implemented conjunctively or incrementally). The Lawyers' Group of Amnesty International HK commented that the proposal was not an appropriate mechanism to protect individuals from press intrusion. It urged the Government to work with the press to seek alternative solutions to address public concerns about media intrusion and journalistic ethics, rather than establishing an unpopular statutory body. The Association for the Advancement of Feminism commented that the media should be subjected to the scrutiny of the general public, and should not be regulated by a commission created by the Government or by statute.

1.42 The RTHK Programme Staff Union "strongly oppose[d]" the creation of a statutory PCPP as proposed by the Sub-committee. It believed that the media should be left to put its own house in order. Next Magazine Publishing Ltd submitted that the solution was to ask the Privacy Commissioner to discharge his duties properly, and not to allow the Executive to regulate the media through the backdoor by creating a press council (indirectly) appointed by the Chief Executive as proposed by the Sub-committee. HK Commercial Broadcasting Co Ltd objected to the creation of a PCPP. It firmly believed that self-regulation provided the best means to guarantee press freedom and to ensure the commitment of the press to their social responsibilities. Professor Joseph Man Chan of the School of Journalism and Communication at the Chinese University of HK commented that the media should be given a chance to demonstrate their capability for self-regulation. Mr Kevin Sinclair, a journalist, commented that the proposals did not make sense and were dangerous. Mr Tim Hamlett, Associate Professor of the Department of Journalism at HK Baptist University, commented that in not one of the sub-committee's examples of media intrusion was there the slightest suggestion that the alleged victim had been harmed, still less that he or she had complained. He submitted that the PCPP should be described as a tribunal; the Sub-committee could have designed a council which was informal and relatively powerless, or it could have chosen a tribunal with all the formality and safeguards which that implies.

1.43 The US Freedom Forum Asian Center argued that the Consultation Paper presented no substantial evidence of media intrusion to the degree justifying a monitoring apparatus. It submitted that the community, readers and advertisers supported Apple Daily and Oriental Daily News. The Society of Professional Journalists in the US opposed any governmental entity that could lead to the stifling of a free press in Hong Kong. It also opposed any other action by the HK Government that could weaken the rights of the people of Hong Kong to enjoy freedom of speech and of the press. Mr Floyd Abrams, an American attorney-at-law, commented that the Sub-committee was "playing with fire" when it proposed to establish a council with sweeping authority over what the press chose to print. He said that journalistic judgment in the area of personal privacy often involved a weighing of a variety of factors as to which responsible journalists might differ and the ultimate judgment on those matters was largely one of taste. Such judgments should, in his view, be made by journalistic organisations themselves.

(i) Other comments made by the respondents

1.44 The Legal Aid Department commented that when freedom of expression conflicted with the right of privacy, appropriate sanction was desirable which should only be exercised carefully and legally in order to avoid unnecessary encroachment on, and jeopardising of, press freedom. The Hospital Authority had no comments on the proposed PCPP but welcomed the assistance offered by the proposals, since media intrusion might affect or impair its responsibility to provide health care. The HK Policy Research Institute advised that the experience of the Supreme Council on Audio and Visual Programmes in France provided a useful model. Members of the Council were appointed by persons representing the public, such as the President of France, the leader of the National Assembly, and the Speaker of the Senate. Although the Council monitored the media, its authority commanded high respect in France. The Institute therefore argued that establishing a high level body that monitored the media did not mean that democracy and liberty would be controlled or stifled as a result. On the contrary, it could be an effective mechanism to safeguard press freedom and plurality of opinion.[13] Against Child Abuse commented that the existing self-regulatory monitoring mechanisms were ineffective in protecting the safety and privacy of victims. It suggested that an independent mandated monitoring body be set up which was adequately funded and consisted of experts from both inside and outside the field, and reputable persons from the community. It further suggested that clear principles and guidelines outlining areas of concern should be laid down and reviewed on a regular basis.

1.45 Representatives of the Sub-committee discussed their proposals with the members of the Central and Western Provisional District Board, the Sha Tin Provisional District Board, the Kwun Tong Provisional District Board and the LegCo Panel on Home Affairs on 23 September, 24 September, 4 October and 8 November 1999 respectively. On 17 November 1999, 39 members of the Legislative Council voted in favour of the motion: "That this Council urges the authorities to promote education on media literacy across the board, opposes the establishment of a government-appointed press council and hopes that the media will expeditiously set up an effective self-regulatory mechanism which safeguards freedom of speech and of the press, protects personal privacy and preserves public morality." Three members abstained and no member voted against the motion. In response, the Home Affairs Bureau told the Legislative Council that the best way to improve media conduct would be to have an effective self-regulatory mechanism formed by the press.

1.46 To conclude, the major criticisms of the Sub-committee's proposals may be summarised as follows:

(a) the proposed Council is indirectly appointed by the Government;

(b) the remit of the Council might be widened in the future to cover non-privacy matters;

(c) the power to impose a fine would have a chilling effect on press freedom;

(d) the power to initiate its own investigations and to accept third party complaints might be abused by the Council; and

(e) other alternatives have not been fully explored, such as amending the PD(P)O to give the Privacy Commissioner powers to deal with media intrusion in addition to matters relating to personal data privacy.

1.47 The submissions made by various parties were considered by the Sub-committee with considerable care and enabled the Sub-committee to understand the issues more thoroughly. In addition to written submissions and commentaries in the press, members of the public have also expressed their views through opinion polls. The findings of these opinion polls are summarised in the next chapter.