Hong Kong Law Reform Commission

Chapter 8 - The Hong Kong Press Council

• Objects and composition
• Complaints procedure
• Operation
• Strengths and weaknesses
• Lack of remedies for intrusion by non-member newspapers
• The Hong Kong Press Council Bill

Objects and composition

8.1 Objects and ambit – The HK Press Council was incorporated in June 2000 as a company under the auspices of the Newspaper Society of HK, the HKNEA and HKFJ.[187] It is funded by donations and subscription fees paid by member newspapers. The primary object of the Council is "to promote the professional and ethical standard of the profession of the Newspaper industry and, in particular, to deal with the complaints of the public to the acts of the members of the Newspaper industry." Initially, the Council only dealt with complaints relating to intrusion on privacy. As from July 2001, it also accepts complaints about articles of a prurient, indecent or sensational nature.

8.2 Membership – Members of the Council are the subscribers to the Memorandum of Association and such other persons as the Executive Committee may admit. Newspapers and magazines registered under the Registration of Local Newspapers Ordinance and professional journalists' organisations are eligible to become Press Members.[188] The Public Members must not be less than 50% of all Council members.

8.3 As at March 2003, the Council had 29 members: 12 of them were Press Members and 17 were Public Members. Each of these members had one vote at a General Meeting. The 12 Press Members represented ten newspapers and two professional organisations, namely, China Daily HK; HK Commercial Daily; HK Daily News; HK Economic Times; The Standard; Ming Pao Daily News; Sing Tao Daily; South China Morning Post; Ta Kung Pao; Wen Wei Po; the HKNEA and the HKFJ. The ten newspapers accounted for less than 20% of Hong Kong's total newspaper readership. The following newspapers were not members of the Council: Apple Daily, HK Economic Journal, Metro, Oriental Daily News, Sing Pao Daily News and The Sun. Apple Daily, Oriental Daily News, Sing Pao Daily News and The Sun are said to control 80% of the newspaper market by readership in 2002/03.[189] The HKJA and HKPPA also refuse to join. The HKJA is of the view that the best way to deal with media excesses is for individual publications to put their house in order, through the use of corrections and apology columns, the printing of letters from aggrieved individuals, and the appointment of news ombudsmen to consider complaints from readers.

8.4 The constitution of the Council provides that Public Members must comprise not less than 50% of all members. Public Members are appointed at the invitation of the Executive Committee, which has the power to withdraw, revoke, cancel or suspend any such invitation "if it considers that it is in the interests of the Council to do so". Public Members should be "persons of eminent attainment, rank or situation or persons in the journalist, legal, education or other professions who are willing to render advice and service towards the attainment of the objects of the Council". The Public Members of the Council in March 2003 included the head of a university, a retired High Court judge, a Senior Counsel, a former chairman of the Law Society, three education workers, two social workers, a law professor, the Vice-President of the HK Performing Artistes Guild, the General-Secretary of the Society for Truth and Light, an industrialist, a news executive and three journalism professors.[190]

8.5 Executive Committee – Members of the Executive Committee are elected by ordinary resolution at the AGM. The Executive Committee is responsible for the management of the Council, its property and funds. It meets at least once a month. It has power to appoint officers for its Secretariat and determine the number of members and appoint committees. The Chairman of the Executive Committee is nominated by Press Members and elected by the members at a general meeting.[191] He must not engage in the newspaper or journalistic profession at the time of his appointment and during his office as Chairman of the Committee. The Vice-Chairman is elected from Public Members but can be nominated by Press or Public Members. He should not be engaged in the newspaper profession when elected by the Members. As at March 2003, the Chairman was Professor Edward K Y Chen, President of Lingnan University and former Chairman of the Consumer Council, and the Vice-Chairmen were Professor Leonard Chu, Director of the Centre for Media and Communication Research at HK Baptist University, and Mr Melvin Wong, barrister and Vice-President of the HK Performing Artistes Guild.[192] The Executive Committee had 19 members in total, comprising nine Press Members and ten Public Members of whom two were journalism professors and one was a news executive.

8.6 Journalist Practice Rules – All members are required to comply with the Articles, Bye-laws and the Journalist Practice Rules of the Council.[193] Any refusal or neglect to do so, or any conduct unworthy of a member, shall render a member liable to expulsion. The Executive Committee has "in the interim period" adopted the Journalists' Code of Professional Ethics (issued jointly by the HKNEA, HKJA, HKFJ and HKPPA) as guidelines for local journalists in carrying out their duties.[194] The Council may, after full consultation with the four journalists' associations, modify the Code as and when necessary.

Complaints procedure

8.7 A complaint may be made orally by an interview at the Secretariat or by lodging a notice of complaint. Upon receipt of a complaint, the Secretariat will direct it to the Screening Committee, which comprises not less than three members appointed by the Executive Committee, to consider whether there is a prima facie case against the respondent. Should the Screening Committee decide that a prima facie case has been made out, it will forward the complaint to a Complaints Committee, which comprises not less than three persons (including at least one Public Member and one Press Member) appointed by the Executive Committee. If the Screening Committee rejects the complaint, a decision in writing and the reasons therefor will be forwarded to the Executive Committee. If the Executive Committee upholds the decision, a reply together with the reasons therefor will be sent to the complainant.

8.8 Where the respondent is a not a member of the Council, the Screening Committee would invite it to comment on the complaint and obtain its consent to submit to the Council's jurisdiction. If the Screening Committee receives no response but the complaint discloses a prima facie case, then the complaint would be forwarded to the Executive Committee to decide whether to issue a general statement commenting on the complaint.

8.9 A Press Member whose newspaper is the subject of a complaint is not eligible to be appointed as a member of the Complaints Committee. Any member of the Screening Committee or Executive Committee who is a director, partner, editor or employee of the respondent may not be involved in the consideration of the complaint, nor may he attend and vote in any meeting of the Screening Committee or Executive Committee in deciding whether or not there is a prima facie case against the respondent.

8.10 Upon the appointment of a Complaints Committee, the Director General will request the respondent to give a reply within 14 days. Upon receipt of the reply, he will send a copy thereof to the complainant. The respondent is free to seek legal advice in answering the allegation and dealing with the complaint. The Complaints Committee will assist the parties to resolve the matter through peaceful negotiation and conciliation if appropriate. If the Committee considers that an inquiry should be held, the respondent will be provided with copies of all documents made available to the Committee. The Committee may proceed even if the respondent fails to appear at a hearing. The Complaints Committee may receive such evidence as it considers relevant to the hearing, whether it would be admissible in a court or not. If the complaint is made against a non-member who is unwilling to submit to the jurisdiction of the Council, the Committee may nonetheless determine the matter in accordance with all the evidence before it.

8.11 If a Complaints Committee is satisfied that a complaint is substantiated, it will forward its findings to the Executive Committee, which may then decide that the respondent and/or its editor, publisher, employee, contributor or freelance writer be reprimanded; direct the respondent to publish the directive or a summary of findings; direct the respondent to give a written apology to the complainant in a form agreed by the Executive Committee; and direct the respondent to publish an apology in its newspaper. By joining the Council, the newspaper members have undertaken not to commence legal proceedings against the Council or any members of the Executive or Complaints Committee in connection with or arising out of an inquiry. The authority of the Council rests on the willingness of members to respect the Council's adjudications and to admit mistakes publicly.

Operation

8.12 The Council handled 74 complaints between September 2000 and December 2002, ie, 32 complaints per year on average. About 15% of these related to privacy intrusion alone, 49% related to inaccurate reporting, and 26% related to indecency, violence and sensationalism.[195] It should be borne in mind, however, that an inaccurate report about an identifiable individual also gives rise to a privacy concern, and the percentage of complaints that are related to privacy may therefore be higher than it appears to be. Only 31% of complaints were directed at member newspapers, while complaints against non-member newspapers and magazines accounted for 58% and 11% respectively.

8.13 The number of complaints received by the Council has been low, but this may be due to: (a) the fact that the Council does not have jurisdiction over magazines and several popular newspapers; (b) the fact that inaccuracy and news-gathering activities fall outside the remit of the Council; (c) lack of publicity about the Council's complaints procedure; and (d) low awareness among members of the public of their right to be protected from unlawful or arbitrary interference with their privacy by the press. Only 5% of the respondents in an HKPC survey commissioned in January 2002 were aware that the Council provides an avenue for making a complaint against a newspaper.[196] In relation to the effectiveness of the Council in resolving complaints, the 2000/01 Annual Report said that "most" of the member newspapers were supportive and positive in responding to complaints against their newspapers, and that the Council had promptly resolved "most" of the complaints related to member newspapers. The fact that the Council is not able to fully address complaints against magazines and non-member newspapers will be discussed after we have examined the Council's strengths and weaknesses.

Strengths and weaknesses

8.14 Strengths – We welcome the formation of the HK Press Council and commend the efforts of all those who have contributed to its formation and smooth operation, in particular, the Newspaper Society of HK, the HKNEA, the HKFJ, the public members who have volunteered their service to the Council, and those who have provided the funds for its daily operation. The following are some of the strengths of the Council:

(a) Independence

(i) The Government is not involved in the process, in particular the appointment of the Council members.

(ii) Although the Council is initiated by the Newspaper Society, it is open to all local newspapers and is independent of the Society.

(iii) The operation of the Council is independent of the founding members and the press industry.

(iv) The Council regularly reviews the scheme in the light of changing circumstances and expectations. The Council's decision to accept third party complaints and to publish their findings on their website are good examples.

(b) Public membership

(i) The Council admits public members, who must be in the majority. There are also more Public Members than Press Members on the Executive Committee.

(ii) Both the Chairman and the Vice-Chairman of the Executive Committee must be Public Members elected by the full Council.

(iii) It is generally agreed that the Public Members are persons of integrity and the Chairman is a person of high standing in the community.

(c) Procedural fairness

(i) The procedure of the Council is informal but fair to the parties.

(ii) The Bylaws ensure that the Screening Committee, Complaints Committees and Executive Committee are impartial and independent.

(d) Industry code

(i) The Council starts off by using a code that is agreed by the four journalists' associations as the yardstick for deciding complaints.

(ii) The Council recognises that there is a need to keep the code under review.

(e) Complaints procedure

(i) The complainants do not have to incur any costs in lodging a complaint.

(ii) The Council does not rule out third party complaints.

(iii) The Council is assisted by a Director General who is an experienced journalist.

(f) Funding

(i) Since the running costs of the Council are financed by one or more anonymous donors and not by the industry or the member newspapers, the well-being of the Council is not dependent on the financial support of those whose conduct is subject to its scrutiny.

(ii) The taxpayers do not have to bear the costs of the Council.

(g) Transparency

(i) The Council maintains a bilingual website, which contains useful information about its composition and complaints procedure.

(ii) The Council has adopted the practice of publishing an annual report and complaints statistics.

(iii) The outcome of the Council's investigations has also been made public on its Chinese website since early 2002. Members of the public are able to assess whether the rulings are proportional and consistent.

8.15 Weaknesses – Although the efforts made by the Newspaper Society, HKNEA and HKFJ are praiseworthy, the HK Press Council is not without weaknesses:

(a) Press representation on the Council

(i) Although magazines are eligible to become press members, no magazines have been admitted so far. Magazines are therefore not represented on the Council, and the Council generally does not rule on complaints about magazines.

(ii) The HKJA, the largest journalists' union in Hong Kong, and the HKPPA are unwilling to support the Council by becoming its members.

(iii) Apple Daily, HK Economic Journal, Metro, Oriental Daily News, Sing Pao Daily News and The Sun, representing about 80% of total newspaper readership, are not members of the Council.

(iv) Press membership of the Council is voluntary and existing press members may withdraw at any time.

(v) Since all newspaper members are treated alike with equal representation and voting on the Council irrespective of their readership, the Council may be dominated by newspapers that do not have a high circulation, while mass circulation papers such as Oriental Daily News and Apple Daily (with 40% and 27% of total Hong Kong readership respectively) may consider the current set up of the Council unfair to them.

(vi) The Council may reject the application of a newspaper for membership without giving any reason.[197]

(b) Public representation on the Council and its committees

(i) Although the Public Members of the Council must comprise not less than 50% of all Council members and, in March 2003, the actual number of Public Members on the Executive Committee exceeded that of Press Members (by one), there are no provisions in the Council's Articles of Association guaranteeing that the Public Members on the Executive Committee, which is responsible for the adjudication of complaints and the day-to-day operation of the Council, will always be in the majority.

(ii) Since there is no requirement that the Public Members must be represented on the Screening Committee, this Committee might be controlled or dominated by the Press Members.

(iii) A Complaints Committee, which may have three or more members, could have no more than one Public Member.

(iv) There is no requirement that the Public Members must be independent of the press industry and journalistic profession. Public Members are defined in the HKPC's Constitution as "persons of eminent attainment, rank or situation or persons in the journalist, legal, education or other professions who are willing to render advice and service towards the attainment of the objects of the Council". Since journalists (whether working in the print or broadcast media) and journalism professors have close connections with the press, public representation on the Council may be diluted by the appointment of journalists, journalism professors and other persons working in the press industry (eg the legal officers or training managers of media organisations) to be "Public Members". As a matter of fact, out of the 17 Public Members on the Council in March 2003, three were journalism professors and one was a senior journalist working in a broadcasting organisation. The same senior journalist and two of these three journalism professors were also Public Members of the Executive Committee. The Public Members would be in the minority in both the Council and its Executive Committee if the press-related Public Members are counted as Press Members instead.

(v) Since Public Members who are journalists or journalism professors may be appointed by the Executive Committee to the Screening Committee and Complaints Committees, and one or two of these press-related Public Members may be the only Public Member or Members on the Screening or Complaints Committee in which the Public Members may or may not be in the minority, some may not have confidence in these committees dealing with the complaints in a fair and impartial manner.

(c) Effectiveness

(i) The number of cases satisfactorily dealt with by the Council is small. Within the first 22 months of its operation, the Council received only 11 complaints relating to privacy intrusion alone. The Council upheld four complaints. They took no further action in another three cases on the ground that they involved non-member newspapers.

(ii) About 70% of the complaints were directed against non-member newspapers and magazines, which do not submit to the Council's jurisdiction and are not bound by its adjudications. Hence, members of the public who suffered at the hands of non-member publications do not normally have an adequate remedy.

(iii) The Council invariably asks non-member newspapers to respond to the allegations made against them, but they usually ignore the Council's request for information and refuse to co-operate in the investigation.

(iv) While the name of a newspaper respondent is disclosed in the case report if it is a member of the Council, the Council generally refrains from naming a newspaper respondent if it is not a member even though the complaint is upheld.

(v) Although a member of the Council may lodge a complaint with the secretariat, the Council does not generally initiate its own investigations. Nor does the Council envisage that it is part of its duty to monitor compliance with the Code on a daily basis.

(vi) The Council has no power to enforce its directive if an offending newspaper refuses to comply. It cannot compel a newspaper member to publish the findings promptly with due prominence. The only sanction available is to expel the defaulting member from the Council. But expelling a newspaper from the Council is not in the best interests of press self-regulation.

(vii) The Chairman of the Council admitted that the way some of the member newspapers dealt with corrections and replies was far from satisfactory. He cited delays in publishing a correction or reply and the lack of prominence in a correction or reply as examples.[198]

(viii) The Council and its members could be sued for defamation if they criticised the conduct of non-member publications for breaching the Code.

(d) Purview of the Council and coverage of the Code of Conduct

(i) The Council rules out complaints about news-gathering activities that infringe personal privacy on the grounds that "news-gathering methods do not fall within the purview of [that] Council".[199]

(ii) The Council may decline to deal with complaints relating to inaccuracies or misleading statements on the grounds that these matters do not fall within its purview.

(iii) The Journalists' Code used by the Council as the basis of adjudication is not detailed enough to provide practical guidance to journalists and members of the public.[200]

(iv) To the extent that the Journalists' Code does not require journalists to accept social responsibility when discharging their duties, it fails to give recognition to the requirement under the ICCPR that the exercise of the right to freedom of expression carries with it "special duties and responsibilities".

(e) Transparency

(i) The Annual Reports do not contain enough information to enable the public to judge whether the Council has been effective in providing a remedy to the victims. For instance, the reports do not disclose what directives have been issued by the Council; whether or not the offending newspapers have complied with the directives in full; and what action has been taken if an offending newspaper refused to comply.

(ii) The complaints mechanism is not widely known to the public, particularly those who do not subscribe to the member newspapers.

(f) Accountability

(i) Although the Council discharges an important public function, it is nevertheless a private company not accountable to anyone (whether the judiciary, the legislature, or the general public) other than to its members. The Council is under no legal obligation to observe the procedural requirements under Article 14 of the ICCPR, nor are its proceedings and decisions subject to the scrutiny of the Court. Hence, a complainant would not have any redress if:

l the Council or any of its committees does not act in accordance with its constitution or bylaws;

l the Council does not observe the rules of natural justice when dealing with his complaint;

l the Council unreasonably rejects his complaint;

l he is aggrieved by the ruling of the Council;

l the defaulting newspaper fails to fully comply with the directive of the Council; or

l a non-member newspaper or magazine ignores the ruling of the Council.

(ii) The members of the public can do nothing if:

l the Council is inactive or fails to discharge its functions;

l the Council fails to secure enough funds to maintain its operations;

l the Council amends its constitution or bylaws in such a way as would lessen the protection afforded to victims of press intrusion; or

l the Council changes its practice in such a way as would decrease the transparency of its activities and decision-making process.

(iii) A newspaper or magazine proprietor can do nothing if his application for membership is rejected by the Executive Committee without giving any reasons.

(g) Funding

(i) Although one or more anonymous donors have been generous enough to finance the recurrent costs of the Council, there is no guarantee that the Council will continue to be adequately funded in the future.

(ii) In the light of the present economic climate, the Council does not seem to have enough resources to publicise its services, monitor compliance with the code, obtain all the legal services it requires, promote media education, and undertake research into media ethics.

(iii) The lack of resources to defend libel suits brought by non-member publications has precluded the Council from discharging its adjudicative and education functions to the fullest extent.

(h) Publicity

The Council maintains a website informing the public about its functions and activities. However, we are not aware of any newspaper members giving publicity to the services of the Council by donating space for advertisements in their newspapers, nor are we aware of the Council advertising its services in the media.

8.16 Of all the weaknesses highlighted above, four have been identified as the major obstacles to the Council's playing a greater role in protecting the public from press intrusion:

(a) the lack of representation of magazines and several popular newspapers on the Council;

(b) the risk of the Council's being held liable for defamation if it passes judgment on the conduct of non-member publications;

(c) the rejection of complaints involving the use of news-gathering methods that are privacy-invasive; and

(d) the power to reject a complaint if it relates to inaccuracy or a misleading statement.

We elaborate on the first two issues and explain how the Council deals with them in the following paragraphs.

Lack of remedies for intrusion by non-member newspapers

8.17 Newspaper members have undertaken not to sue each other when joining the Council. They are, however, not immune from libel suits brought by non-members. If the Council issued an adjudication critical of a non-member newspaper and another newspaper published that adjudication, then the non-member might sue the Council and the publisher for libel. The Council is supported mainly by donations, and does not have the resources to meet the legal costs of defending a libel suit. A newspaper criticised by the Council might appeal all the way up to the Court of Final Appeal, and the Council would have to bear part of the legal costs even if it succeeds in its defence. The Council is therefore reluctant to issue adjudications critical of non-member newspapers. The Council has occasionally made general comments in these cases. However, these comments were usually made without naming the newspapers, unless the newspaper concerned already accepted responsibility. Hence, the Council may not be able to provide an effective remedy to individuals aggrieved by the conduct of non-member newspapers.

8.18 After pointing out that about 75% of the complaints in 2000/01 were directed against non-member newspapers and magazines, the Council's annual report in 2001 stated that it was "very difficult" for the Council to investigate these complaints. The report revealed that there was a "nagging frustration" among members at their inability to handle complaints against non-members that had been brought to their attention. The fact that the most widely read newspapers were unwilling to join made it "virtually impossible" for the Council to perform an effective self-regulatory role in enhancing journalists' professional standards. Since the Council had neither the power nor the authority to criticise any newspaper or magazine that was not a member of the Council, and it might incur legal liability or expenses for doing so, the Council was "handicapped" by not being able to provide any assistance to members of the public whose complaints related to non-member newspapers or magazines. The Council was concerned that if this problem could not be overcome, it would be difficult to build up public confidence; and the public would not bother to take up their complaints with the Council.[201] The Council therefore perceived a "desperate need" for the defence of qualified privilege so that the Council could undertake and fulfil its tasks and objectives. The findings of a survey commissioned by the HKPC in January 2002 confirmed the Council's concerns, as 56% of the respondents considered that it had little impact on the ethical standards of newspapers, while only 6% considered that it had a significant impact.

8.19 Since the major players are not members of the Council and therefore not subject to its rules, member newspapers that are liable to be reprimanded by the Council and admit their faults in public are placed at a competitive disadvantage in the market. Member newspapers may feel that they have placed themselves in an unfair position by voluntarily submitting themselves to the scrutiny of the Council. We therefore consider it important to create a level-playing field for the ethical and responsible newspapers to flourish. However, universal subscription to a self-regulatory scheme is unlikely to be achieved without public or statutory intervention. The HK Press Council Bill promoted by the HKPC represents an attempt to achieve effective self-regulation with statutory backing without any Government intervention.

The Hong Kong Press Council Bill

8.20 In October 2001, the HK Press Council published a consultation paper together with a draft HK Press Council Bill, which was intended to be introduced as a Private Member's Bill.[202] Apart from seeking to grant statutory status to the HKPC, the Bill provided that (a) no member or employee of the Council would be personally liable for any act done by the Council if the member or employee was acting in good faith in the course of the Council's operations;[203] and (b) a report of any finding or decision of the Council made at the conclusion of an investigation into a complaint should be protected by statutory qualified privilege.[204] The defence of qualified privilege would protect a newspaper that had published the Council's finding or decision from liability for defamation unless the publication was malicious. However, the defence would not be available if the newspaper defendant had been requested by the plaintiff to publish a reasonable statement by way of explanation or contradiction but had refused to do so.

8.21 The draft Bill did not have the full support of the major political parties. The HK Journalists Association opposed the Press Council's proposal on the following grounds:

(a) the creation of a statutory body could harm press freedom;

(b) it could open the door to Government intervention;

(c) it failed to take into account the fact that most democracies adopt a voluntary mechanism to keep an eye on the media; and

(d) it ignored improvements in media ethics.[205]

8.22 We have seen from Chapter 4 that media intrusion is still a matter of serious public concern. We point out in Chapter 11 that statutory press councils also exist in democratic societies. We also argue in Chapter 14 that the operation of a statutory press council can be independent of the Government, and an independently constituted press council which operates as a self-regulatory body will not encroach on press freedom.

8.23 For present purposes, we agree that the HKPC is ineffective if it cannot pass judgment on the conduct of non-member newspapers without fear of litigation. We also agree that the media should be encouraged to publish the Council's critical judgments by making the defence of qualified privilege available to the publishers of these judgments. The Bill is therefore a step in the right direction. However, the draft Bill is not without shortcomings:

(a) Objects – Whereas the objects of the HKPC are confined to the promotion of professional and ethical standards in the newspaper industry and the adjudication of public complaints against the conduct of newspapers, the proposed statutory council may, in addition to the promotion of standards and consideration of complaints, "uphold and defend freedom of the press, including but not restricted to publishing reports and making representation to the Government or otherwise on any matter concerning the freedom of the press". Although these objectives are not conflicting, we have reservations asking the same body simultaneously to defend press freedom and to protect private citizens from abuses of press freedom.

In the UK, the twin objectives of the now defunct UK Press Council were to preserve press freedom and to adjudicate complaints against the press. This dual role had been criticised by the third Royal Commission on the Press, which pointed out that its objects of defending press freedom could be carried out by professional or trade associations. The Royal Commission was of the view that "the task of considering complaints against the press is the one object for which such a body as the Press Council is essential, and only if it is independent will citizens be satisfied that their interests are being safeguarded."[206] The Press Complaints Commission that replaced the Press Council no longer has the preservation of press freedom as its mission.

We agree that the defence of press freedom is a legitimate objective. However, it is unnecessary for a press council to be a defender of press freedom if there are already powerful advocates of press freedom and the Government is not a source of complaints. Moreover, the proposed council would be required to balance press freedom with other competing interests (including privacy) when adjudicating complaints. When carrying out this balancing exercise, the council must be, and be seen to be, independent and impartial. A press adjudicating body which is also a defender of press freedom would lose objectivity and not be perceived as independent and impartial in the eyes of the public.

The statutory framework for the protection of personal data is illustrative. The Privacy Commissioner, who is charged with the responsibility of balancing data privacy with other competing interests, is required to monitor, supervise and promote compliance with the provisions of the PD(P)O (which was drafted after taking due account of all the countervailing interests), but not to enforce, safeguard and promote the right to data privacy per se. Since the primary concern of the public is the absence of an effective remedy for unwarranted press intrusion, the press council should be set up as a press complaints body acting as a watchdog of the public, rather than a champion of the press.

(b) Coverage – Local magazines would not be eligible to be admitted as press members of the statutory council.[207]

(c) Nomination of public members – The nomination of public members would be under the control of press members because a public member would have to be nominated by at least two press members.

(d) Composition of public members – The Bill seeks to ensure that public members are "broadly representative" of the members of the public by providing that the public members "shall" include two lawyers, one social worker, one teacher, and one academic in a tertiary institution. Bearing in mind that there is no limit to the number of public members on the Council other than the requirement that the number of public members must not exceed that of press members by 30%, and that there is no limit to the number of press members on the Council, the provision has the effect of placing a limit on the number of lawyers, social workers, teachers and academics on the Council irrespective of the total number of press or public members. Besides, there is no guarantee that these five members will be elected to the Executive Committee.

(e) Eligibility of newspapers for membership – A local newspaper would only be eligible to be a member of the Council; it would not have a right to become a Council member and participate in the election of the Executive Committee. Under the Bill, the Executive Committee has a discretion to admit a local newspaper as a member. Although the Committee must provide written reasons if it decides not to admit an eligible person to be a press member, and an aggrieved newspaper may request the Council to review the decision, the Bill does not specify the grounds on which an Executive Committee or Council may reject an application.

(f) Residency requirement of complainants – The Council would be able to reject a complaint if the complainant is not a Hong Kong resident. Hence persons who are not qualified to obtain a Hong Kong identity card, such as tourists, overseas students, foreign businessmen and overseas domestic helpers would not have a right to complain even though their right to privacy has been infringed by a local newspaper while they are staying in Hong Kong.

(g) Third party complaints – The Council would be able to reject a complaint "if the alleged infringement of privacy is not related to the privacy of the complainant". In other words, a privacy complaint must be made by the victim. The Council may refuse to entertain a complaint on the ground that it is made by a third party.

(h) Availability of alternative remedy – The Council would be able to decline an investigation if the subject matter of the complaint "can be adequately dealt with elsewhere". Hence the Council would be able to exclude a complaint if the complainant has a remedy at law by bringing legal proceedings. This requirement would deprive the victims of a cheap and speedy remedy as an alternative to legal actions.

(i) Code of Conduct – The Code of Conduct could be amended by not less than three quarters of the press members at a general meeting without the endorsement of the public members or ratification by the full council.

(j) Scope of legal immunity – The immunity to be enjoyed by the members and employees of the Council would extend to "any act done or default" made by the Council "acting in good faith in the course of the operations of the Council". Since two objects of the Council are to uphold and defend freedom of the press (including making representations on any matter concerning press freedom) and to promote and uphold the highest professional and ethical standards of the newspaper industry, the protection covers acts other than those committed in the adjudication of complaints. While there is a need to render Council members immune from lawsuits when exercising their adjudicating function, it is doubtful whether there is such a need when the Council upholds and defends press freedom.

(k) Enforcement of adjudications – Although the Council may require an offending newspaper (whether a Council member or not) to publish a censure, an apology or a correction, it does not have power to enforce the requirement against the newspaper should the latter choose to ignore it.

(l) Duty to make public the findings – The Bill provides that the Council "may" publish the full reports of the Complaint Committees. It does not impose any statutory obligation on the Council to report its adjudicative activities, nor does it require the Council to publish its findings, decisions and reasons therefor on a regular basis.

(m) Duty to publish annual reports – The Bill does not require the Council to give an account of its affairs by publishing an annual report.

8.24 The HKPC is revising the draft Bill. Our comments may therefore be out of date by the time this report is released. As far as the draft Bill is concerned, however, we do not consider that it offers the most appropriate solution to the HKPC's present inability to provide an effective remedy to victims who suffer at the hands of non-member newspapers and magazines. In the next two chapters, we therefore examine the various alternatives which have been suggested. Chapter 9 is devoted entirely to a discussion of whether issuing a code of practice under the Personal Data (Privacy) Ordinance or amending the Ordinance is a viable and desirable alternative to the creation of a statutory body to regulate privacy intrusion by the press.