On 27 February 2023, the Communications Authority ("CA") issued a press release summarising its decision against HK Television Entertainment Company Limited ("HKTVE") with respect to its news coverage on candidates running for the 2021 Legislative Counsel General Election ("Election") on its ViuTV Channel ("Programme").1

Relevant Code of Practice and Guidelines

Television programme service licensees, including domestic free television programme service providers such as the HKTVE,2 are required to comply with the Broadcasting Ordinance (Cap. 562), the Broadcasting (Miscellaneous Provisions) Ordinance (Cap. 391), and related subsidiary legislation. These provisions are supplemented by the terms and conditions of the relevant licenses, as well as mandatory Codes of Practice issued by the CA.

These include the Generic Code of Practice on Television Programme Standards ("Code"), which sets out general programme standards and other principles on scheduling, use of language, and indirect advertising etc.4 Among other principles, all licensees are required to preserve due impartiality in news programmes and to present opposing points of view in a balanced manner.3 Domestic free and domestic pay television programme services shall also observe all elections-related regulations and guidelines issued by the Electoral Affairs Commission ("EAC").5

In its present decision, the CA found that HKTVE did not fully observe the EAC's Guidelines on Election-related Activities in respect of the Legislative Council Election ("Guidelines"). Under the Guidelines, media organizations should ensure that fair and equal treatment is given to all candidates when covering elections. Favourable or unfavourable treatment should not be given to any candidate, and media organizations should make sure that their programmes or reports do not constitute election advertisements.6

Accordingly, the names of all candidates of the same constituency should be mentioned in a news report:

"Election-related news involving a particular candidate can be reported by itself even if no other news on other candidates is carried that day. However, the other candidates of the same constituency must at least be mentioned. The mention should be made in the same programme or publication by the media in an appropriate way. They may not necessarily appear within the content of the same report, but in principle, should enable the viewers, listeners or readers to be informed of the other candidates."7

Handling of Broadcast Complaints

Complaints about potential contraventions of television broadcasting legislations, license conditions or Codes of Practice, are made to the CA in accordance with the procedure in the Broadcasting (Miscellaneous Provisions) Ordinance. A complaint which contains prima facie evidence of a breach will be referred to the Broadcast Complaints Committee ("BCC"). The BCC will make recommendations to the CA after reviewing the material under complaint and considering the licensee's representations. The CA will then invite the licensee to make further representations and make its final decision.8

If a contravention is found, the CA may advise the licensee to pay closer attention to the relevant provisions or issue a warning against future violation.9 In serious cases, the CA may impose a penalty, direct the licensee to include a correction and/or apology in its television programme services, or even suspend or recommend that the license be revoked.10

If the licensee wishes to contest the CA's decision, it may either appeal by way of petition to the Chief Executive in Council, or by way of judicial review to the Court of First Instance.11

The Decision

The cause for complaint against the Programme was that it only mentioned some of the candidates running in different geographical or functional constituencies in the Election. Instead of mentioning the names of all candidates in those constituencies or showing their names on the screen, the Programme showed two QR codes at the end of the news report that linked to the information of all candidates and the news anchor urged viewers to scan the codes.

The CA agreed with the EAC that HKTVE failed to mention the names of all candidates of the same constituency in the Programme, as required by the Guidelines. HKTVE was therefore in breach of the Code. As HKTVE had examined its internal process to ensure that it will comply with the relevant requirement, the CA advised HKTVE to observe the relevant provision in the Code more closely and did not impose any sanction.

Takeaway

This decision goes to show that the CA does not deem the use of QR codes as a mechanism to satisfy the requirement of showing the information "in the same programme or publication". Whilst the CA did not elaborate on its decision in its press release, it may have taken into account the fact that not all viewers would watch the end of the news report; and even if they did, they may not be technology-savvy enough to scan the QR codes.

Footnotes

1. Original text of the press release can be found at Communications Authority - Press Releases (Record No.: 2311) (coms-auth.hk).

2. The four categories of licensed television programme services are (i) domestic free television programme services, (ii) domestic pay television programme services, (iii) non-domestic television programme services and (iv) other licensable television programme services.

3. Original text of the Code can be found at code_tvprog_e.pdf (coms-auth.hk)

4. Paragraphs 2 to 5, Chapter 9 of the Code.

5. Paragraph 9, Chapter 12 of the Code.

6. Part I, Chapter 12 of the Guidelines which can be found at Chapter 12 (eac.hk).

7. Paragraph 12.8, Chapter 12 of the Guidelines.

8. The Broadcast Complaint Handling Procedures of the Communications Authority.

9. Section 24 of the Broadcasting Ordinance.

10. Sections 28 to 33 of the Broadcasting Ordinance.

11. Section 34 of the Broadcasting Ordinance; Television Broadcasts Ltd v. Communications Authority and Another (29/01/2016, HCAL176/2013) [2016] 2 HKLRD 41, para. 142.

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