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The following is issued on behalf of the Broadcasting Authority:
At its meeting on March 17, 2007, the Broadcasting Authority considered the motion passed by the Legislative Council Panel on Information Technology and Broadcasting (Legco Panel) at its meeting on March 12, 2007, to urge the authority to withdraw its decisions concerning the complaints against the Radio Television Hong Kong (RTHK) television programme "Hong Kong Connection - Gay Lovers" (铿锵集 - 同志、恋人) and the movie "An Autumn's Tale" (秋天的童话) broadcast on Television Broadcasts Limited (TVB). The authority's response to Legco Panel, which has been issued, is as follows.
"The Broadcasting Authority is an independent statutory body established under the Broadcasting Authority Ordinance (BAO) (Cap. 391) with the responsibility of, among others, securing proper standards of television broadcasting and deciding whether any broadcast material is in breach of the relevant Code of Practice. According to legal advice, the authority having made a decision in exercise of a statutory power is functus officio, i.e. it has performed its functions and is wholly without power as a matter of law to rescind its decision.
"In discharging its statutory responsibility, the authority recognises and is fully committed to safeguarding the existing freedom enjoyed by Hong Kong residents, including freedom of speech. On the complaint cases on the Radio Television Hong Kong (RTHK) television programme "Hong Kong Connection - Gay Lovers" (铿锵集 - 同志、恋人) and the movie "An Autumn's Tale" (秋天的童话) broadcast on Television Broadcasts Limited (TVB), the authority fully understands that its ruling has aroused divergent views from different sectors of the community. The authority has handled these complaints in accordance with the established procedures under the ordinance. In arriving at its decisions on the two complaint cases, the authority has carefully considered the two programmes against the relevant provisions in the Code of Practice which was promulgated after extensive consultation with the public and the broadcasters, and has fully taken into account the representations of the broadcasters concerned and all other relevant factors.
"As an industry regulator, the authority is committed to adopting an open and participatory approach in its decision-making process, in line with international best practices. In regulating broadcast contents, the authority is fully aware of the need to reflect the prevailing community standards. In this connection, the authority has, since 2005, conducted annual opinion surveys to gauge public attitudes on broadcasting standards. To engage the industry in this process, representatives of the broadcasting industry are involved in steering the survey and the survey results are released to the public.
"The use of undesirable language in broadcast materials has been a major concern by the viewing public. In this connection, the Television and Entertainment Licensing Authority (TELA), the executive arm of the authority, has compiled a Glossary of Undesirable Expressions (Glossary) after extensive consultation with the broadcasting industry. The Glossary is updated from time to time and the last review was conducted in 2004. It is due for a review again this year and TELA will consider how best to involve the public in the coming review."
At the same meeting, the authority also considered a complaint case about breach of the licence condition on copyright by TVB Pay Vision Limited substantiated. Please see Annex for details.
The authority also noted that in February, 2007, the Commissioner for Television and Entertainment Licensing dealt with 54 cases (85 complaints) under her delegated authority, of which two cases (two complaints) were classified as minor breaches, and 39 cases (70 complaints) as unsubstantiated, under section 11 of the Broadcasting Authority Ordinance. Thirteen cases (13 complaints) were outside section 11 of the ordinance. Please refer to the authority website: www.hkba.hk for details of the complaints.
Annex:
Summary of Substantiated Complaint Cases:
Breach of Licence Condition on Copyright by TVB Pay Vision Limited (TVBPV)
A complainant alleged that TVBPV had breached Condition 22 of TVBPV's domestic pay television programme service licence by infringing the copyright of Asia Television Limited (ATV) and Television Broadcasts Limited (TVB) in retransmitting the four free-to-air channels of ATV and TVB in 2004 without the consent of ATV and TVB.
Condition 22 of TVBPV's licence provides that TVBPV shall not do, or permit, any act or conduct in relation to its service which is an infringement of any intellectual property right, including but not limited to any copyright.
The authority decided that TVBPV had breached Condition 22 of TVBPV's licence on the following grounds -
(a) TVBPV admitted that it had retransmitted ATV's channels during the periods from January 27, 2004, to April 4, 2004, and from July 25, 2004, to September 20, 2004, and TVB's channels from January 27, 2004 to September 2, 2004 without the respective consent of ATV and TVB. TVBPV also admitted that in retransmitting the channels, it altered the signals by stripping off the stereo sound from the broadcasts;
(b) the authority had taken into account the decision of the Court of First Instance of the High Court (HCA2055/2004) relating to the retransmission of TVB's free-to-air channels without TVB's consent. As TVBPV in this case also altered the broadcasts by stripping off the stereo sound in retransmitting the channels of ATV and TVB, the facts of the present case were on all fours with those of the aforementioned court case and the exemption under section 82 of the Copyright Ordinance (Cap. 528) did not apply to TVBPV's retransmission; and
(c) TVBPV admitted infringement of the copyright by not fully retransmitting the signals of ATV and TVB.
TVBPV was advised to observe more closely Condition 22 of TVBPV's licence.
Ends/Friday, March 23, 2007
Issued at HKT 19:09
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