Hong Kong Law Reform Commission

Chapter 6 - Regulating intrusion by the broadcast media

6.1 The potential impact of the medium concerned is an important factor in considering the "duties and responsibilities" of a journalist. Compared with the print media, the broadcast media have a much more immediate and powerful effect. The broadcast media have means of conveying through sound and moving images, meanings which the print media are not able to impart.[151] In Hong Kong, all television and radio programmes (except those produced by RTHK) are broadcast by licence of the Chief Executive-in-Council. All licensed television and sound broadcasters, including cable and satellite television broadcasters, are regulated by the Broadcasting Authority under the Broadcasting Authority Ordinance (Cap 391). These broadcasters are under a statutory duty to comply with the Codes of Practice on programme standards issued by the Broadcasting Authority. RTHK has also agreed that it would abide by the Authority's Code of Practice on programme standards and submit to its jurisdiction.[152]

6.2 The Broadcasting Authority consists of three public officers and not less than six nor more than nine lay members appointed by the Chief Executive. Some of its functions are to monitor television and radio broadcasts in Hong Kong to ensure compliance with the regulations, codes of practice and licence conditions; to consider complaints about broadcasts relating to breaches of standards set out in the codes; and to issue and revise codes of practice on programming and advertising standards.

6.3 Upon receipt of a complaint, the Commissioner for Television and Entertainment Licensing, as the executive arm of the Authority, would investigate the complaint. If there is prima facie evidence of a breach of any of the provisions of the regulations, licence conditions or codes of practice, the complaint would be referred to the Complaints Committee which consists of not less than five members appointed by the Authority. The Committee will consider representations from interested parties and make recommendations to the Authority. The final decision on complaints rests with the latter. If the Authority rules against a broadcaster, it may impose a fine and issue directions requiring the broadcaster to take such action as the Authority considers necessary. A broadcaster who is aggrieved by a direction of the Authority or a provision of a code may appeal to the Chief Executive-in-Council.

6.4 The Broadcasting Authority makes use of various mechanisms to ensure that the licensed broadcasters comply with the stipulated standards. These include: selective monitoring of television and radio broadcasts; meetings with senior management of the broadcasters; periodical surveys; public hearings; and public consultation through the Television Viewing Advisory Scheme. There is also an advisory committee to review the codes of practice.

6.5 Since the Broadcasting Authority is entrusted with powers and functions to ensure that the licensees fulfil their obligations and responsibilities, one way to strengthen the protection of privacy against intrusion by broadcasters would be to entrust the Authority with the task of monitoring whether the journalistic activities of the broadcasters are intrusive. The Consultation Paper therefore recommended that the Broadcasting Authority should adopt in its Codes of Practice on Programme Standards, provisions relating to (a) unwarranted invasion of privacy in programmes broadcast in Hong Kong, and (b) unwarranted invasion of privacy in connection with the obtaining of material for inclusion in such programmes.

6.6 The Privacy Commissioner, the Law Society, the HK Democratic Foundation and the Hong Kong section of JUSTICE supported this recommendation. Television Broadcasts Ltd was of the view that the electronic media was adequately governed by the Codes of Practice issued by the Broadcasting Authority. HK Commercial Broadcasting "strongly" opposed the adoption of privacy provisions in the Codes. In their view, incidents of intrusion committed by licensed broadcasters when gathering and reporting news were few and far between. The RTHK Programme Staff Union also expressed reservations about adopting this recommendation. The Union was concerned about any move to give the Authority additional powers over the media. We note, however, that paragraph 3.7 of the RTHK Producers' Guidelines contains detailed provisions concerning respect for privacy.[153] It is also fairly common for the broadcasting codes in other jurisdictions to include privacy provisions. Examples are the Code on Fairness and Privacy adopted by the Broadcasting Standards Commission in the UK;[154] the BBC Producers' Guidelines;[155] the Programme Code of the Independent Television Commission in the UK;[156] the Commercial Television Code of Practice adopted by the Australian Broadcasting Authority;[157] the Journalistic Standards and Practices of the Canadian Broadcasting Corporation;[158] the Guidelines for Programme-Makers of the Radio Telefís Éireann in Ireland;[159] the Free-to-Air Television Code of Broadcasting Practice approved by the Broadcasting Standards Authority of New Zealand;[160] and the Privacy Principles adopted by the NZ Broadcasting Standards Authority in determining complaints alleging a breach of section 4(1)(c) of the Broadcasting Act 1989.[161]

6.7 The Broadcasting Authority responded that they would consult the Privacy Commissioner to ensure that there would be no overlapping of jurisdiction between the two statutory bodies. Chapter 10 of the newly issued Generic Code of Practice on Television Programme Standards provides that domestic free and domestic pay television programme services must comply with the following rules on privacy:

"1. The rights of individuals to privacy should be respected in all programmes. Complaints about programme invasion of privacy can arise from the gathering of material or from the way an individual is treated in the programme itself. In obtaining material for a programme, the licensees must ensure that the provisions of the Personal Data (Privacy) Ordinance (Cap. 486) are observed. The licensees shall only collect material for broadcast purpose by means which are lawful and fair in the circumstances of the case.

2. Licensees should be sensitive to the possibility of causing additional anxiety or distress when interviewing, filming or recording people who are already extremely upset or under stress. People in a state of distress should not be put under pressure to provide interviews. Normally funerals may only be covered with the permission of the family.

3. Children should not be questioned to elicit views on private family matters, nor asked for expressions of opinion on matters likely to be beyond their judgement.

4. Reporting of sexual offences against children should avoid identification of the child."

6.8 We welcome the initiative taken by the Broadcasting Authority. However, the privacy provisions are brief compared to those in the RTHK Guidelines and the codes in other jurisdictions. The Broadcasting Authority Code is mainly concerned with the collection of materials for inclusion in broadcast programmes. It has not laid down any standards in relation to programmes broadcast on television, other than the requirement that reports of sexual offences against children should avoid identification of the child. We consider that the Broadcasting Authority Code should elaborate on the privacy requirements for broadcasters and provide guidelines on both the collection and use of personal information for broadcast purposes.

6.9 The way the provisions are drafted also suggests that the Authority has sought to avoid an overlap of jurisdiction with the Privacy Commissioner. The Broadcasting Authority seems to have subscribed to the view that it should not assume jurisdiction if the conduct in question can be dealt with by the Privacy Commissioner under the Personal Data (Privacy) Ordinance. However, the Ordinance has limitations and does not protect individuals from all kinds of unwarranted media intrusion.[162] In our view, the Broadcasting Authority, being a specialist body with a mandate to balance freedom of broadcasting with other rights and freedoms, is a more appropriate body than the Privacy Commissioner to deal with complaints about intrusion by broadcasters. To conclude, we consider that detailed privacy provisions should be included in the Generic Code of Practice on Television Programme Standards to strengthen the existing protection afforded by the Broadcasting Authority Ordinance.

6.10 Given that intrusion by broadcasters can be adequately dealt with under the Broadcasting Authority Ordinance, the remaining part of this report will be focused on the regulation of intrusion by the print media. It should, however, be borne in mind that the introduction of new communications and information services, in particular online services, has blurred the lines between newspapers, broadcasting, telecommunications and informatics. These services may be used to the detriment of personal privacy if details of an individual's private life are disclosed or made available on the Internet. However, we refrain from making any recommendations for the regulation of unwanted publicity on the Internet. There is still no consensus in the international community about the measures that a Government should adopt to combat the misuse of new communications and information services for carrying out activities which are contrary to human rights. Self-regulation at the domestic and transnational level by providers and operators of these services (especially content providers) in the form of codes of conduct or other measures, with a view to ensuring respect for human rights is therefore preferred.[163] There is, however, a narrow area which we look at more closely, namely, unwanted publicity in the Internet edition of printed newspapers. This subject will be discussed in Chapter 15 in the context of the Registration of Local Newspapers Ordinance.

6.11 Since some have argued that self-regulatory measures are sufficient to address the concerns arising from intrusion by the print media, we examine in the next two chapters the advantages and disadvantages of self-regulation, and whether the self-regulatory measures of the journalistic profession and the press industry are effective or not, with particular reference to the HK Press Council established subsequent to the publication of our Consultation Paper.