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The following is issued on behalf of the Broadcasting Authority:
At its meeting on June 25, the Broadcasting Authority (BA) deliberated the court's judgment delivered on May 8 on the judicial review of the decisions of the Broadcasting Authority in respect of a television programme called "Hong Kong Connection - Gay Lovers" (Gay Lovers) produced by Radio Television Hong Kong (RTHK). The authority respects the court's ruling and concluded that it would not appeal against it.
In considering the matter, the authority noted that the court's ruling focused on three areas:
(a) Whether the BA is empowered to consider complaints against television programmes made by RTHK, a government department;
(b) The "family viewing policy" of the BA in protecting the minors; and
(c) The "due impartiality" requirement the BA imposes on factual programmes dealing with matters of public policy or controversial issues of public importance, and the interpretation of the requirement.
On (a), the BA noted the court's view that the BA had not acted outside its powers when considering the complaint against RTHK's programme "Gay Lovers" and making its decision pursuant to the administrative scheme contained in the Memorandum of Understanding (MOU) signed between the Government, RTHK and the BA.
"The MOU is designed to put all broadcasting services in Hong Kong, commercial or otherwise, under a uniform set of content regulatory standards," a spokesman for the Broadcasting Authority said.
As regards (b), the BA welcomed the court's ruling that the BA's finding that the programme concerned was not suitable for broadcasting during the family viewing hours was lawful. With respect to the specific programme concerned, the court agreed that as young viewers might not have sufficient maturity to understand the programme concerned, the programme should have been broadcast at a time when young viewers could be expected to have the benefit of parental guidance.
"This is a positive endorsement of the BA's family viewing policy as enshrined in its Codes of Practice (Code) and the BA will continue to expect this policy to be observed by all broadcasters," the spokesman said.
As regards (c), the BA noted that the court accepted the promulgation of the code by the BA as a means to ensure that the standards of television programmes reflect Hong Kong's generally accepted standards of taste and decency. The court's ruling has also confirmed that the constraints imposed under the code are compatible with the Hong Kong Bill of Rights Ordinance. The court was concerned solely about the application of the "due impartiality" provisions of the code to the programme in question. Among others, the court was of the view that the programme in question was not designed as a vehicle to "advocate" any particular point of view and did not attempt to advance any public cause. It considered that the presentations portraying human condition and generally not prejudiced either for or against the issues raised are consistent with the application of the relevant provisions. Even though the BA had taken a different view in applying the "due impartiality" provision, it respects the court's ruling and will take this into account in applying the code in future.
For background of the case, please refer to Appendix A.
The BA is mindful of the need to set standards of content regulation which reflect social values and in this regard will endeavour to seek views from the community and broadcasters in drawing up the code. For this purpose, the BA has engaged a local university to conduct a research study on the use of language in broadcasting. An executive summary of the study (Chinese version only) is at Appendix B. As recommended by the study, the BA will continue to gauge the views of the community through its established channels including the Television and Radio Consultative Group, which comprises 540 members from 18 districts who are openly recruited based on the demographic characteristics.
In June 2008, the Broadcasting Authority also approved the application of Hongkong International Theme Parks Limited for renewal of its "other licensable television programme service licence" to provide television programme service in hotel rooms for a validity period of 12 years.
The BA noted that in May, 2008, the Commissioner for Television and Entertainment Licensing (CTEL) dealt with 155 cases (301 complaints) under her delegated authority, of which four cases (four complaints) were classified as minor breaches, and 84 cases (177 complaints) as unsubstantiated, under section 11 of the Broadcasting Authority Ordinance (BAO). Sixty seven cases (120 complaints) were outside the ambit of section 11 of the BAO. The monthly complaints figures dealt with by the CTEL since January, 2008, are shown in Figure 1. A breakdown of the unsubstantiated cases by nature is at Figure 2. Please refer to the BA website: www.hkba.hk for details of the complaints.
Appendix A
Background of the Judicial Review case in relation to the TV programme "Gay Lovers"
In July, 2006, the BA received 22 complaints about "Gay Lovers" produced by RTHK broadcast on TVB Jade on July 9, 2006, from 7.35pm to 8pm. The Commissioner for Television and Entertainment Licensing (CTEL) considered the case unsubstantiated under her delegated authority. In December, 2006, the BA considered an appeal case against the CTEL's decision and issued a strong advice to RTHK for breaching the relevant provisions in the code concerning impartiality and family viewing hours.
As the programme was about homosexuality and the legalisation of homosexual marriage which were controversial in many societies including Hong Kong, the BA considered it a factual programme dealing with matters of public policy or controversial issues of public importance in Hong Kong and hence should be subject to the impartiality rule under the Code. The BA considered the programme presented only the merits of homosexual marriage and featured only the views of three homosexuals on the legislation of homosexual marriage, rendering the presentation unfair, partial and biased towards homosexuality and having the effect of promoting the acceptance of homosexual marriage. Furthermore the programme was unsuitable for broadcast within the family viewing hours as children and young viewers watching the programme might have no knowledge of homosexuality and might be adversely affected by the partial contents of the programme if parental guidance was not provided.
An interviewee of the television programme "Gay Lovers" applied for judicial review against two decisions of the BA dated January 20 and March 23, 2007. The hearing of the application for judicial review took place before the Hon Hartmann J on February 18 and 19, 2008. In his Judgment delivered on May 8, 2008, Hartmann J found that the findings made by the BA in respect of the RTHK programme "Gay Lovers" were made pursuant to the administrative scheme contained in the MOU signed by the Government, the BA and RTHK, and not pursuant to any purported extension of its statutory powers; the BA's finding regarding impartiality arose out of a misunderstanding of its own code; and the BA's finding that "Gay Lovers" was not suitable for broadcasting during family viewing hours was lawful.
Ends/Thursday, July 3, 2008
Issued at HKT 19:01
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