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Cho Man Kit v Broadcasting Authority

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date08 May 2008
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL69/2007
CourtHigh Court (Hong Kong)
HCAL000069A/2007 CHO MAN KIT v. BROADCASTING AUTHORITY

HCAL 69/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 69 OF 2007

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BETWEEN

CHO MAN KIT Applicant
and
BROADCASTING AUTHORITY Respondent

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Before : Hon Hartmann J in Court

Dates of Hearing : 18 and 19 February 2008

Date of Handing Down Judgment : 8 May 2008

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J U D G M E N T

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Introduction

1. The applicant in this matter is gay, a fact known to him since puberty. In 2006, the applicant appeared in a television programme called ‘Gay Lovers’. It was a documentary-style programme which focused on the day-to-day lives of two gay couples, looking to the difficulties encountered in their lives, their fears and their aspirations.

2. The programme was produced by Radio Television Hong Kong (‘RTHK’), a department of Government.

3. After the broadcast of the programme, the Broadcasting Authority, the respondent in this matter, came to a determination that the content of the programme and the time of its broadcast had violated its code of practice. That determination was published.

4. It is the applicant’s assertion that the determination of the Broadcasting Authority was contrary to law in that it placed an impermissible restraint on the freedom of expression of RTHK and the participants in the programme, that restraint being discriminatory in that it was based solely on the fact that the programme focused on the lives of people of a particular sexual orientation : homosexuals.

5. Included in other forms of relief to which I shall refer later, the applicant therefore seeks an order of certiorari to bring up and quash the determination of the Broadcasting Authority.

Freedom of expression

6. Freedom of speech, which includes freedom of expression; that is, the freedom to chose the manner in which a communication is made, is recognised by the Basic Law as a fundamental freedom. In its 1986 judgment in Lingens v. Austria 8 E.H.R.R. 407, at 418, the European Court of Human Rights emphasised that freedom of speech —

“… constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”

7. The right to freedom of speech, and the right to chose how best to express that right, is not however an unqualified right, one that can be exercised without restraint. The right brings with it ‘special duties and responsibilities’ and may therefore be subject to restrictions. However, art.16 of the Hong Kong Bill of Rights provides that such restrictions may not be such as to effectively destroy the right. It provides that any restrictions —

“… shall only be such as are provided by law and are necessary —

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.”

8. In considering the extent of a restriction to freedom of speech, it is well settled that any such restriction must be narrowly interpreted : see HKSAR v. Ng Kung Siu and Another (1999) 2 HKCFAR 442, at 457.

9. Today, one of the most direct and effective channels of communication is by television broadcast. The right to freedom of speech does not guarantee the right for anybody who wishes to make television broadcasts. Those who are permitted to broadcast may have to comply with codes that set out appropriate standards of programme content. Such codes, however, may not unlawfully restrict the right to freedom of speech and expression.

10. In the greater public interest, Hong Kong statute provides for a system of licensing to control broadcasting and further makes provision for ensuring that what is broadcast meets criteria designed to protect public morals and respect the rights of others.

11. The Broadcasting Authority (‘the Authority’) is established pursuant to s.3 of the Broadcasting Authority Ordinance, Cap.391. Its functions and powers are set out in s.9 of the Ordinance and include the responsibility of securing ‘proper standards’ of television broadcasting not only in respect of technical performance but also in respect of programme content.

12. I understand the term ‘proper’ in this context to mean ‘apt’ or ‘suitable’. The Authority, as I read it, is therefore under a statutory obligation to ensure that programmes that are broadcast meet suitable standards of taste and decency, standards that would be recognised as appropriate; that is, as suitable, by reasonable members of the Hong Kong community.

13. It is to be observed that the applicant does not challenge the constitutional validity of the statutory responsibility placed on the Authority under s.9 to ensure that the content of programmes meets ‘proper standards’.

14. Under the Broadcasting Ordinance, Cap.562, the Authority has the power to approve, issue and to enforce codes of practice in order to regulate the standard of programmes broadcast on television.

15. Codes of practice seek to ensure conformity with Hong Kong’s generally accepted standards of taste and decency. They are therefore (of necessity) broad and somewhat imprecise in their language and demand a significantly subjective element of assessment.

16. All codes of practice, of course, to a greater or lesser degree, put a constraint on freedom of speech. But it is to be further observed that the applicant does not challenge any of the provisions of the prevailing code of practice as being, of themselves, arbitrary or unreasonable. The prevailing code is therefore accepted, for the purposes of this application, as a document which imposes constraints on freedom of expression that do not go further than the allowable restrictions contained in art.16 of the Hong Kong Bill of Rights.

17. In this regard, it should be noted that Hong Kong is not alone in regulating television broadcasting. Television broadcasts come directly into the home and, as such, possess an immediate, almost intimate character. In the United Kingdom, the Broadcasting Standards Commission, in its Code on Standards, has expressed the rationale in the following way :

“There is an implied contract between the viewer, the listener and the broadcaster about the terms of admission to the home. The most frequent reason for viewers or listeners finding a particular item offensive is that it flouts their expectation of that contract – expectations about what sort of material should be broadcast at a certain time of day, on a particular channel and within a certain type of programme, or indeed whether it should be broadcast at all.” [cited with approval by Lord Hoffmann in R (ProLife Alliance) v. BBC [2003] 2 WLR 1403, at 1410]

The prohibition against discrimination

18. A further fundamental freedom, recognised as such by the Basic Law is that all persons are equal before the law : art.25

19. Discrimination is the antithesis of equality. As Lord Nicholls put it in his speech in Ghaidan v. Godin-Mendoza [2004] 2 AC 557, at 566, “it brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced.”

20. The principle of equality before the law recognises that fundamental rights – such as freedom of speech – are to be enjoyed without any distinction by way of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” : art.1 of the Hong Kong Bill of Rights, Cap.383.

21. It is now recognised in our law that the prohibition against discrimination on the basis of sex refers not only to gender but also to sexual orientation : see, for example, Leung v. Secretary for Justice [2006] 4 HKLRD 211, per Ma CJHC at para.53.

22. ‘Discrimination’ occurs when there is a failure to treat all persons equally in circumstances where no reasonable distinction exists to justify that different treatment.

23. In L v. Austria (2003) 13 BHRC 594, para.44, the European Court of Human Rights defined ‘discrimination’ for the purposes of art.14 of the European Convention in the following manner :

“According to the court’s established case law, a difference in treatment is discriminatory … if it ‘has no objective and reasonable justification’, that is if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.”

24. A restriction on freedom of speech, or a difference in treatment of persons who are otherwise entitled to equality of treatment, will be impermissible unless the restriction, or difference in treatment, is rationally connected to some legitimate purpose and the means used is no more than is necessary to accomplish that legitimate purpose. The proportionality test, as it is called, strikes a proper balance between the interests of society on the one hand and the individual’s rights on the other : Leung Kwok Hung and Others v. HKSAR (2005) 8 HKCFAR 229, at 253.

A brief history of how the Authority’s determination came to be made

25. As I have said early, the programme ‘Gay Lovers’ was produced by RTHK. The applicant agreed to appear on the programme, he said, because he wanted to show that the aspirations of he and his long-term partner were in essence no different from most heterosexual...

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