| Yawning
Bread. 11 May 2008
Hong Kong broadcasting regulator's decision overturned by court
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The head of programming at Channel 5, Kenneth Liang, himself admitted that turning around his station was an urgent priority. He told the Straits Times, "Ratings have been on a slow decline for a long time. We have lost relevance to our core audience who have been migrating to other distractions." [1] These two instances mentioned by Madison Chua of fines being imposed on broadcasters for whispering "gay" are not new. As far back as June 2003, the now-defunct MediaWorks TV was fined $15,000 by the Media Development Authority (MDA) for broadcasting an interview with actress Anne Heche on the afternoon of 16 March that year, in which she spoke about her lesbian relationship with comedienne Ellen DeGeneres. The MDA rapped MediaWorks for breaching the TV Programme Code, which disallows content that "promotes, justifies or glamorises" gay "lifestyles". In January 2007, a similar case came up in Hong Kong. The Broadcasting Authority there publicly sanctioned Radio Television Hong Kong (RTHK) for airing in July 2006 and October 2006 a documentary-style program looking at the day-to-day lives of two gay couples, the difficulties they encountered, their fears and aspirations. The program was called "Gay Lovers". The regulator said RTHK violated its code of practice which required all non-fiction programs to be impartial. However, no fine was levied because RTHK was government-owned. Cho Man Kit, who had appeared in the program, then sued for a judicial review. In a judgement [2] delivered 8 May 2008, Justice Michael J Hartmann found for the applicant (i.e. Cho), and struck down the Broadcasting Authority's sanction on RTHK. The second part of this essay will examine the reasoning behind the court's decision. * * * * *
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Turning to codes of practice,
he noted that Cho did not challenge the constitutionality of the
Broadcasting Authority's use of such a scheme, but took issue with the way
its provisions were arbitrarily and unreasonably interpreted.
The Broadcasting Authority, in its defence, argued that RTHK's program dealt with matters of some sensitivity, especially the issue of same-sex marriage, and it failed to meet the requirement of impartiality. The judge then honed in what the responsibility to "impartiality" should mean and whether "sensitivity" in this case may justify a heightened duty of care. First, however, the court noted, after viewing the program, that it "did no more than faithfully record the fears, hopes, travails and aspirations of persons who happened to be gay" and the "issue of same-sex marriage was an incident in the programme... not in any way ‘promoted’ in the active and political sense that the word intends." The Broadcasting Authority however, argued: "The fact that only the merits of homosexual marriage were raised in the programme rendered the presentation one-sided. The absence of different views on homosexual marriage had the effect of promoting the acceptance of homosexual marriage. In this respect, the presentation was not impartial." The judge ruled that this was a misapprehension of the meaning of "impartial". The word should be used in the sense of "unprejudiced, unbiased, fair" and does not necessarily have to mean "counter-balanced". Say, there is a program dealing with child slavery. Must a view in favour of child slavery be included? "Impartiality, therefore, may demand no more than that the subject matter is dealt with fairly; that no prejudice is shown -- either for or against -- matters that are portrayed. Indeed, it may be said that such treatment is one of the hallmarks of documentary film-making," Justice Hartman pointed out. Hunter-gatherers in a documentary may express the hope that forests would not be encroached upon; a daughter looking after her invalid mother at home may wish for more state assistance. "Such expressions, in any study of the human condition, are entirely organic to it," he said, before asking rhetorically whether such programs would also be penalised by the Broadcasting Authority for being partial. "The answer is plain enough." Ditto the expressions by the gay interviewees in the program that one day, same-sex marriage might be available to them. "Any portrayal of the human condition will reflect some sympathy with the subject," the judge observed, but "such sympathy ... is not to be read as a form of active ‘promotion’ of any aspiration that arises in the course of the portrayal." The Authority suggested that this case was different in that "homosexuality and the legalization of homosexual marriage were controversial issues which might be offensive... " Hartman pointed out that whether the claim of offensiveness should be given weight must rest on how that sense of offensiveness came about. He recalled that in 2006, the Hong Kong Court of Appeal had cited with approval the following comments by Professor R Dworken in his work, Taking Rights Seriously :
To stress: Prejudice, irrational and unexamined beliefs, however common, are not the kind of "public opinion" that a democracy which believes in fundamental freedoms, must yield to. As you will recall, he had at the start read from the European Court of Human Rights, its reference to how freedom of speech includes such speech that disturbs or offends. The Authority, in interpreting its powers, must do so narrowly so as not to encroach unjustifiably upon this freedom. A discriminatory impulse is an unjustifiable one. This sanction, the judge decided, was "a restriction founded materially on a discriminatory factor; namely, that homosexuality, as a form of sexual orientation, may be offensive to certain viewers." Hence, the court found for the applicant.
Justice Hartmann ruled that the Broadcasting Authority had acted
unlawfully in interpreting "impartial" in the way they did. He
thus quashed the Authority's decision and awarded costs to the
applicant. © Yawning Bread
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Footnotes
Addenda None
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A recent High Court case from Hong Kong should be of much interest given
the way our Media Development Authority (MDA) goes about penalising TV
stations, subject to no effective oversight. Most of the time, the MDA's
fines are imposed because our TV stations have aired innocuous mentions of
homosexuality. The standards being imposed are so divergent from the rest
of the modern world that it prompted this letter in the online edition of
the Straits Times:
