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Hong Kong Law Reform Commission |
7.1 This chapter examines the effectiveness of the self-regulatory measures adopted by the journalistic profession and the newspaper industry in Hong Kong. The first part gives an overview of the environment in which the media operates, followed by a summary of the advantages and disadvantages of industry self-regulation in general. The second part discusses the extent to which the profession's Journalists' Code of Professional Ethics and the codes of ethics issued by individual journalists' associations can uphold the ethical standards of journalists. The effectiveness of the HK Press Council promoted by the Newspaper Society is discussed in Chapter 8.
7.2 Any discussion of media intrusion should not overlook the fact that the media is both a social institution and an economic enterprise. It involves the production of goods and services that are both public (something that is necessary for the working of society as a whole) and private (commodities that satisfy the private needs of individuals).[164] The many social and cultural functions of the media and the political role of the media in acting as a watchdog of Government cannot obscure the fact that its activities are also economic in nature. Although there are media organisations whose primary object is to make their views known to the public rather than to make a profit, most media organisations are commercial entities that have to make a profit to survive. These organisations are run as business enterprises and have to operate according to the dictates of market economics.
7.3 The dominant criterion applied by most media organisations is therefore circulation or readership. A media organisation usually wants to attract as large an audience as possible so that it could increase its advertising value. To the extent that the goal of profit-maximisation may be at odds with the requirement of the "special duties and responsibilities" under Article 19 of the ICCPR, the self-interest of a media organisation may conflict with the public's interests when it purports to exercise freedom of the press under Article 27 of the Basic Law. It is therefore necessary to ensure that the media does not abuse its freedom to the detriment of the public's interests. The question is how the media can be regulated without hampering the press' checking function.
7.4 All newspapers or periodicals printed or produced in Hong Kong, whether for sale or free distribution, must be registered under the Registration of Local Newspapers Ordinance (Cap 268).[165] As at 30 September 2002, 50 newspapers[166] and 738 periodicals were registered under the Ordinance, including 25 Chinese-language newspapers, 13 English-language newspapers, 506 Chinese-language periodicals, and 109 English-language periodicals. However, the number of newspapers actually sold on the news-stands is less than these figures. Only two English-language dailies and about ten Chinese-language dailies are widely read by the local public.
7.5 Nonetheless, the press industry faces competition unknown in the past. New means of information dissemination such as subscription television, satellite television, video-on-demand programme services and the many services offered on the Internet, are taking business away from local publishers. In the face of intense competition and a downward economy, the overriding concern of some media proprietors has been to increase or maintain their market share. Commercial pressure may therefore prevail over professional and ethical considerations. A newspaper may find it difficult not to use material which other newspapers may wish to use. The fear that a competitor gets a scoop the next day puts some journalists under pressure to intrude into the private lives of individuals even though no vital public interest is at stake. To attract more readers and advertising revenue, a newspaper may provide more coverage for stories about people's private lives.
7.6 In September 1999, Professor Chan Yuen-ying, Director of the HKU Journalism and Media Studies Centre, wrote that it was "despicable" for newspapers to print pictures of sex-abuse victims, even though the women's faces were covered as they were led away by the police. She called on owners and editors of leading papers to pledge that they would stop publishing these pictures, and on reporters and photographers to stop hounding victims who were already traumatised. According to Professor Chan, her appeal was met with "dead silence".[167] Nonetheless, the journalistic profession and some sections of the press industry are aware of the problem and have taken steps to improve the situation. Before we examine the self-regulatory attempts of the journalists' associations and the HK Press Council, we first set out the advantages and disadvantages of self-regulation.
7.7 Self-regulation is generally characterised by the industry formulating rules which govern its relationship with the public, consumers or clients, with the industry solely responsible for enforcement. It implies that members of the industry have accepted mutual obligations and agreed that their behaviour be regulated by an organised body. There will normally be a procedure for resolving complaints and for the application of sanctions against those who infringe the rules.[168]
7.8 Advantages of self-regulation – The following are the major advantages of self-regulation:
(a) It allows members of the industry more freedom to run their affairs.
(b) It can be quicker and less costly to put in place than statutory regulation.
(c) Internalising the costs of regulation to the industry would improve the efficiency and quality of regulation.
(d) The self-regulatory body can normally command a greater degree of expertise and technical knowledge of practices than a Government agency.
(e) The rules and procedure of the self-regulatory body are less formal.
(f) The costs for the formulation, interpretation, amendment and enforcement of standards are lower.
(g) Self-regulation can harness common interest in maintaining the reputation of those involved in the activity and can generate a sense of ownership amongst those in the industry. It is therefore more likely to secure a high level of compliance.
(h) The rules are imbued with the moral authority of a document written by the industry for themselves. It would be embarrassing for a member of the industry when he has been found by his peers to have breached the rules.
(i) Since the rules are developed by those directly involved in the industry, they are practicable and can best reflect the issues and needs of the particular sector.
(j) The self-regulatory body acts with greater speed in decision making and can be easily adapted to reflect changing circumstances.
(k) Because of the flexibility of self-regulation, a self-regulatory system can resolve disputes quickly and in an informal manner. It can therefore provide a quicker and cheaper means of redress than legal remedies through civil proceedings.
(l) Where the ethical standards extend beyond the letter of the law, self-regulation would raise the standards of the industry over and above the basic minimum requirements.
(m) The complainants need not take any risks on the costs and uncertain outcome of a legal remedy.
7.9 Disadvantages of self-regulation – Self-regulation commonly lacks many of the virtues of conventional state regulation in terms of transparency, credibility, accountability, compulsory application to all, greater likelihood of rigorous standards being developed, cost spreading, and availability of a range of sanctions.[169] As a result, the self-regulatory standards are usually weak, the enforcement of standards is ineffective, and any punishment imposed is mild. The following are the major disadvantages of self-regulation:
(a) Since a self-regulatory body is not the end-product of a political process, it may not be perceived as a fully legitimate dispute resolution body.
(b) The self-regulatory body is not accountable to any body politic through the conventional constitutional channels.
(c) The capacity of the self-regulatory body to make rules governing the activities of a profession may constitute an abuse if it lacks democratic legitimacy in relation to members of the profession.
(d) The self-regulatory scheme may not cover all the members of an industry. Where there is only partial coverage, it is often those who have not joined the scheme which tend to be the main source of problems.
(e) There can be distortion of the market. Non-members who do not follow the rules can under-cut the market with lower standards.
(f) The industry may subvert regulatory goals to its own business goals.
(g) There are doubts about the ability of professional or trade bodies to represent both the interests of their members and the interests of the public. Doubts about independence and impartiality are particularly acute where the adjudicating body does not have public members.
(h) The organisations involved in enforcement may not be open and transparent about their processes and outcomes.
(i) It is unlikely to consult widely amongst the stakeholders before setting standards.
(j) The standards set by the self-regulatory body may be lower than expected or treated as maximum standards by the industry.
(k) The members may not take self-regulatory requirements seriously. A self-regulatory body often has difficulty enforcing its standards against recalcitrant members.
(l) Only a limited range of sanctions may be available for breach of the self-regulatory code.
(m) Self-regulatory bodies lack the powers essential for effective enforcement, such as the power to summon persons and order the production of documents.
(n) Industry may be unwilling to commit the resources needed for monitoring, enforcement and carrying out wide-ranging research.
(o) Self-regulation may fail when the threat of Government regulation recedes, and inadequate self-regulation may act as a barrier to adequate legislation.
7.10 The following observations made by the National Consumer Council in the UK on self-regulation are also pertinent:[170]
"With some exceptions, a trade or professional organisation cannot be expected to carry responsibility for running a self-regulatory scheme. Its first job is to represent its members' interests. At best, trade bodies have persuasive influence, rather than real power, over their membership and are generally in a weak position to secure commitment to a code's provisions or to enforce them effectively. However committed, they will be caught between alienating their own membership yet still generating public scepticism about their impartiality. There appear to be real difficulties for most trade associations, too, in securing the resources and commitment needed for adequate monitoring and publicity."
7.11 Journalism is not a licensed profession. Any person can practise journalism without studying journalism, and there is no need for a journalist to apply for any licence or to become a member of a journalists' association. Neither the Government nor the journalists' associations have the power to regulate who can practise the profession.
7.12 The most active journalists' associations in Hong Kong are the HK News Executives' Association (HKNEA), the HK Journalists Association (HKJA), the HK Federation of Journalists (HKFJ) and the HK Press Photographers Association (HKPPA).[171] They are reported to have had about 160, 500, 140 and 100 members respectively in 2000.[172] According to one source, only 18% of local journalists are members of a journalists' association.[173] Although these associations are vocal on issues concerning press freedom, they are also trade unions protecting the interests of their members. It is, however, open to a journalists' association to unilaterally adopt a code of ethics to regulate the behaviour of its members. Out of these four associations, the HKJA and the HKNEA have their own code of ethics.[174]
7.13 Membership of the HKJA is open to "any person employed as a journalist, photographer or artist in publishing and broadcasting and others who earn income from journalism".[175] It has an Ethics Committee composed of three members appointed by its Executive Committee. The Ethics Committee considers alleged violations of the Association's Code of Ethics referred to it by the Executive Committee. It does not initiate an investigation on its own motion. The Ethics Committee has guidelines for the handling of complaints but they are not posted on the Association's website. There are no representatives of the public participating in the adjudication process. The investigations and hearings of the Committee are also conducted in private. The Executive Committee may impose a fine of not more than $100 on any member found to have been guilty of "conduct prejudicial to the interests of the union", or suspend or expel such a member from the union.[176] Any member so fined, suspended or expelled may appeal to an Appeals Tribunal, which comprises three members appointed by the AGM, and then to its General Meeting. Complainants dissatisfied with the decisions of the Ethics Committee do not have any right of appeal. Although its decisions are not legally binding on media organisations and non-member journalists, the Ethics Committee does not deal with a complaint unless the complainant has waived his right to take legal action in respect of the subject matter giving rise to his complaint.[177]
7.14 In addition, HKJA members account for only a small proportion of local journalists. The Association has no jurisdiction over the vast majority of journalists who are not its members. Even if the Association were willing to play a greater role in self-regulation, it does not have enough members to make this a success. Nor are media organisations subject to its jurisdiction. Media organisations may refuse to respond or decline to provide information. Given the one-sided nature of evidence available, the HKJA has at times found it "very difficult" to come to a definite conclusion.[178] Where a journalist or a media organisation is found to have engaged in unethical conduct, the organisation concerned is under no obligation to publish the adverse finding. Nonetheless, to increase the transparency of its adjudicating process, the HKJA decided in October 1999 to publish the findings of its Ethics Committee in its journal and on its website. As at 31 December 2002, a total of 13 judgments were put on the website.[179]
7.15 Apart from a Code of Ethics, the HKJA occasionally issues guidelines on important issues. The Association explains that such guidelines are labelled as "recommendations" because it wants "to avoid the impression that the HKJA wished to impose its will on members." The Chairman of the Ethics Committee made it clear that the Association preferred a non-confrontational approach "insofar as the union does not impose standards on journalists".[180] It would seem that the Association does not wish to force its members to comply with the minimal standards it has set down, even in those areas where it has found it necessary to regulate the conduct of its members. In a poll of HKJA members on media ethics conducted in October 1998, only 20% of the respondents thought that the Association's Code of Ethics should be "strengthened".
7.16 A HKJA member who is found to have breached its Code of Ethics is liable to a fine or expulsion by the Executive Committee. However, only 13% of the respondents in a poll of HKJA members supported the idea of "threaten[ing] to expel unethical members" in a bid to improve ethical standards.[181] In any event, membership of the Association is not compulsory for journalists. Expelling a member will not have any effect on the employment relationship between the expelled member and his employer. He may continue to practise journalism without being a member of any journalists' association in Hong Kong. The possible role of the HKJA in regulating media intrusion is therefore limited.
7.17 The HKNEA comprises senior journalists who play a management role in the news operations of media organisations. Its Code of Professional Ethics is more detailed than that of the HKJA. However, the HKNEA does not represent the views of newspaper publishers; nor are news executives of all newspapers represented on the Association. The Code has no influence on publishers and journalists who are not members of the Association. We are not aware of any complaints mechanism set up by the HKNEA to back up the Code. Even if a complaints mechanism were put in place, it would still suffer the same limitations as those faced by the HKJA's Ethics Committee mentioned above. However, the HKNEA fully supports the establishment and functioning of the HK Press Council.
7.18 At a meeting of the Legislative Council's Home Affairs Panel held in April 1999, a representative of the HK Press Photographers Association informed the Panel that the Association would write to any media organisation which published offensive photographs in breach of professional ethics. However, media proprietors often ignored such complaints, or threatened to take legal action against individual officers of the Association. These threats tended to inhibit the HKPPA and its members from raising criticisms because of the expense involved in defending a lawsuit brought by a maverick newspaper. The Association's representative added that many newspaper photographs were taken by press photographers who were not news photographers. He admitted that there was "very little" the HKPPA could do, apart from refusing to allow those photographers to join the Association. He pointed out that there was no requirement on press photographers to undertake professional training, or to abide by any code of ethics.[182]
7.19 In response to growing pressure for improvements in the ethical standards of journalists, the HKNEA, HKJA, HKFJ and HKPPA jointly issued the Journalists' Code of Professional Ethics in June 2000. The adoption of the Code represents a major step forward. The standards in the Code apply uniformly throughout the industry. Members of the public no longer have to consult each of the four associations to find out the applicable standards. However, compliance with the Code is purely voluntary. Breach of the Code would not necessarily result in any disciplinary sanction by a publisher; nor does the Code have any supporting mechanisms. No institution or mechanism has been set up to investigate alleged breaches of the Code. Although 18 media organisations supported the Code when it was first promulgated, Oriental Daily News and The Sun refused to enter into dialogue with the four associations. However, even if all media organisations expressed support, there is no guarantee that a media organisation would take disciplinary action against the offending journalist and provide redress to the victim when the Code has been breached.
7.20 The Code could have an impact if all media organisations incorporated the Code into journalists' employment contracts by requiring them to abide by the Code. However, a survey of 288 journalists conducted in October 2002 revealed that none of the 13 mainstream newspapers and five broadcasting companies covered by the survey had incorporated the Code into their employment contracts, nor had these media organisations included the Code in their in-house training programmes.[183] This contrasts with the position in the UK where adherence to the Press Complaints Commission's Code of Practice is written into the employment contracts of the "vast majority of editors".[184] The Chairperson of the HKJA was quoted as saying that the four journalists' associations did not encourage news organisations to incorporate the Code into journalists' employment contracts. She said their legal advisers had suggested that the Code should be treated as a set of ethical standards rather than as a legal document: if the Code were incorporated into employment contracts, it would lead to more industrial disputes.[185] Yet even if a media organisation were willing to incorporate the Code into its employment contracts, the Code would not have any impact if the organisation concerned did not enforce the Code against its employee journalists. The publishers are not accountable to the public as to whether the ethical standards in the Code are enforced against their employees. Furthermore, it is a significant omission that the Code does not acknowledge that the exercise of the right to freedom of expression carries with it "special duties and responsibilities" required by the ICCPR. The phrase "accept social responsibility" was included in the draft code but was eventually excised because of "strong opposition" from the HKJA and HKPPA.[186]
7.21 The Newspaper Society and the Chinese Press Association are the two major press bodies representing the proprietors of local newspapers in Hong Kong. The Newspaper Society took the initiative to establish a press council as early as 1985. In that year, the Chairman of the Society, Mr Robin Hutcheon, set up a preparatory committee for that purpose with members drawn from both the journalistic profession and other sectors of the community. He subsequently gave the chair to Mr Justice Simon Li, who was then a judge of the Court of Appeal. Although most press councils in other jurisdictions have lay members and it is common to have a legally qualified person as the chairman, the HKJA had misgivings about the Society's initiatives and speculated that the Government was behind the move. In the face of opposition from the journalistic profession, the committee decided to dissolve itself. However, the Newspaper Society made a second attempt to establish a press council shortly after the Sub-committee recommended that a Press Council for the Protection of Privacy be established by law. This time, the Society had the support of the HKNEA and HKFJ, but not of the HKJA and HKPPA. The operation and effectiveness of the HK Press Council is examined in Chapter 8.
[164] D McQuail, Mass Communication Theory - An Introduction (SAGE Publications, 1994), ch 6. After noting that information has become a "commodity" and that channels of information and communication now form an industry in many countries, Pierre-Henri Imbert, Director General of Human Rights of the Council of Europe, stated that it was important when addressing the question of the scope and possible limitations of freedom of expression to bear in mind "the significance and the effects of market pressure and competition between media": P-H Imbert, "Welcome address" in Conference on freedom of expression and the right of privacy – Conference reports (Strasbourg: Council of Europe, 2000), DH-MM(2000)7, at <www.humanrights.coe.int/media/>.
[165] The Ordinance does not distinguish between newspapers and periodicals but a "newspaper" published less than five times a week is regarded as a "periodical" for statistics purposes.
[166] Eleven newspapers registered under the Ordinance were published on the Internet.
[167] 陳婉瑩, "請兩大報業老闆高抬貴手！", HK Economic Journal, 24.9.99; Y Y Chan, "The Problem Lies in Generalities", South China Morning Post, 17.3.00.
[168] Better Regulation Task Force, UK, Self-Regulation – Interim Report (Oct 1999), at <www.cabinet-office.gov.uk/regulation/TaskForce/pastreports.htm>, p 3.
[169] N Gunningham & J Rees, "Industry Self-Regulation: An Institutional Perspective", Law and Policy, Oct 1997, vol 19, no 4, 363 at 370, quoting K Webb & A Morrison, "The Legal Aspects of Voluntary Codes", draft paper presented to the Voluntary Codes Symposium, Office of Consumer Affairs, Industry Canada and Regulatory Affairs, Treasury Board, Ottawa, 12-13 Sept 96.
[170] National Consumer Council, UK, Models of self-regulation (Nov 2000), at <www.ncc.org.uk/pubs/self.htm>, pp 42 – 44.
[171] Other journalists' associations in Hong Kong include the Foreign Correspondents' Club, HK Mass Media Professionals Association, and HK Publishers and Distributors Association.
[172] K Y Cheung, "一份香港新聞工作者專業操守守則的誕生"; paper presented at the conference on Media Ethics in the Information Age jointly organised by School of Communication of the HK Baptist University and the Centre for Asian Studies of Chu Hai College, 11-12 Nov 2000, p 2. The HKJA had about 480 members in August 2002.
[173] D Weaver "Journalists Around the World: Commonalities and Differences", in D H Weaver (ed), The Global Journalist (New Jersey: Hampton Press, 1998), p 466, table 23.4. A survey conducted in 1990 revealed that only about 5% of journalists in HK had joined HKNEA and 13% enrolled in HKJA: J M Chan, P S N Lee & C C Lee, HK Journalists in Transition (HK Institute of Asia-Pacific Studies, 1996), 45.
[174] The Code of Ethics of the HKPPA forms part of its constitution but is very brief.
[175] The website of HKJA is at <www.freeway.org.hk/hkja/>.
[176] HKJA Constitution, Rule 7(9).
[177] "記協公開操守委員會裁決", HK Economic Journal, 19.10.99.
[178] HKJA Ethics Committee, "Media Ethics: The HKJA Mechanism", 22.11.98, p 3; FONG So, "Media Ethics: The HKJA Mechanism" in HKJA 28th Anniversary (1996), 30-31.
[180] C Bale, "Journalistic Ethics - The Rights and Wrongs", in HKJA 25th Anniversary (1993), 51.
[181] HKJA Press Release, 22.11.98.
[182] Minutes of special meeting of LegCo Panel on Home Affairs held on 26.4.99, LC Paper No CB(2)653/99-00, paras 19-20.
[183] Justice & Peace Commission and Amnesty International (HK Branch), 新聞工作者人權意識研究, Oct 2002, para 5.2.4.1.
[184] PCC, "Key Benefits of the System of Self-Regulation", at <www.pcc.org.uk/about/benefits. htm> (3.1.03)
[185] "60% Media Supports Journalists' Code", Ming Pao Daily News, 19.6.00.
[186] K Y Cheung, "一份香港新聞工作專業操守守則的誕生", above, p 5.