The Regulation of Media Intrusion

Submission of the Hong Kong Bar Association on
the Law Reform Commission

Consultation Paper on "The Regulation of Media
Intrusion"

A. Introduction

1 The object of the consultation paper is to "examine existing
Hong Kong laws affecting privacy and to report on whether legislative
or other measures are required to provide protection against and to
provide remedies in respect of undue interference with the privacy
of the individual." It makes a total of 39 recommendations. The
principal recommendations relate to the setting up of a statutory
press council with powers to draw up a privacy code, to receive complaints,
to investigate and make determinations on and punish breaches of the
code, including imposition of financial penalties.

B. Fundamental Principles

2. Press freedom and freedom of the speech are cornerstones of a
free democracy and are fundamental to the rule of law. The media has
a very important role to play in society in this regard. It is a purveyor
of information and a public watchdog. It ensures that the government
is accountable to the public through, not only the dissemination of
information, but also the exposure of corruption and abuse of power.

3. The importance of press freedom and freedom of the speech is enshrined
in Articles 27 and 39 the Basic Law, Article 19 of the ICCPR and Article
10 of the European Convention of Human Rights.

4. Like other fundamental rights, press freedom is not absolute.
Article 19 of the ICCPR emphasizes that the exercise of the rights
carries with it special duties and responsibilities. While any restriction
on press freedom must be justified on the most stringent grounds,
it is also important to ensure that press freedom is not to be abused,
and in particular, not to be used as a disguise to intrude upon the
privacy of individuals. The Royal Commission on the Press in the UK
put it thus:-

"[P]roprietors, contributors and editors mut accept the limits
to fress expression set by the need to reconcile claims which may
often conflict. The public, too, asserts a right to accurate information
and fair comment which, in turn, has to be balanced against the claims
both of national security and of individuals to safeguards for their
reputation and privacy except when these are overridden by the public
interest. But the public interest does not reside in whatever the
public may happen to find interesting, and the press must be careful
not to perpetrate abuses and call them freedom."

See Royal Commission on the Press, Final Report, (London, Cmnd
6810, 1977), §2.2

C. The Need for Regulation

5. The consultation paper at chapter 2 lists an avalanche of examples
where the press has in recent times blatantly "crossed the line".
The examples encompass incidents from intrusion on privacy through
fabrication of stories which sensationalises to graphic publicity
of victims of crime and tragedy.

6. To these examples one may justifiably add the tragic incident
of the passing away last year of the late Raymond Faulkner, SC. One
asks with despair what news value or legitimate public interest the
close up picture in the Apple Daily of the deceased spread
eagled on the floor of his apartment could possibly have and can imagine
what untold misery and grief the picture must have caused members
of his family and those close to him.

7. In an industry-wide poll conducted in November 99 by Lingnan University
to which over 1,000 journalists responded, over half were themselves
dissatisfied with media ethics.

8. A survey conducted in 1990 revealed another shocking statistic.
About half of the journalists in Hong Kong have not received professional
education in journalism. It also revealed that 20% of Hong Kong journalists
have not received post-secondary or university education.

9. Insofar as journalists regard themselves as professionals and
are exercising the press freedom guaranteed under the Basic Law, it
is an anomaly that they are not subject to any regulatory measures
which would normally be applicable to a profession.

10. In light of the foregoing, it is right that there should be some
form of mechanism to address the mischief and to uphold the professional
standard. This should be seen as a means of reinforcing professionalism
rather than a threat to press freedom.

11. Accordingly, we support the existence of effective media regulation.
The question is what form of media regulation should be in place.
We believe, whatever be the form of media regulation, that it should
be effective, that the process of regulation should be transparent,
and that no single media organisation should dominate the process.

D. The proposed statutory press council

12. We do not support the establishment of a statutory press council
as proposed by the sub-committee because:

(1) that there is government involvement; and

(2) that the council has power to impose substantial financial punishment.

Government Involvement

13. What is contemplated under the proposal is that the Chief Executive
appoints a person of high standing, independent of the government
and is perceived to be neutral
to chair an Appointments Commission.
The members of the Appointments Commission will then be appointed
by the Chief Executive upon advice from the chairman. In turn the
Appointments Commission will select the members of the Press Council.

See Recommendations 7-11 (§§8.28-8.29) at pp.139-141 of
the consultation paper

14. It would be tempting to make a direct comparison between the
Appointments Commission and a body like the Selection Committee which
partially appointed the current Legislative Council. However, whilst
the Selection Committee is essentially a body handpicked by Beijing
with little meaningful democratic criteria applicable to Beijing’s
selection process, it is arguable that there is at least some protection
against arbitrary appointment of the chairman based on the wording
of the current Recommendation.

15. That said, it is crucial to note that the Law Reform Commission
has come up with no effective mechanism to ensure that the chair of
the Appointments Commission is a truly independent person.
Independent by one’s yardstick may not be and often is not independent
by another’s. The danger here is that the relevant yardstick
under the proposal is that of the Chief Executive and once his decision
is taken to appoint a particular individual, it is difficult to see
whether and if so how it can be effectively challenged even if in
theory judicial review may be available.

16. It follows that there may be a legitimate fear in thinking that
political contamination would transmit across the layers or the bodies.

Financial Penalty

17. Under the proposal, the Council may, in addition to other powers,
impose a fine on a newspaper of up to HK$500,000 for a first offence
and HK$1,000,000 for a second or subsequent offence.

See Recommendation 32 (§§8.69-8.71) at pp. 155-156 of
the consultation paper

18. In the 1998 Wynne Baxter Godfrey Lecture entitled "Can
Self Regulation achieve more than Law" (copy enclosed at Annex
B)
, the current chairman of the British Press Complaints Council,
Lord Wakeham observed:-

"Which is more effective: damages levied against a newspaper
which would be the result of some form of legal remedy; or a critical
adjudication based on the editors' own Code?

Conventional wisdom might have it that people only ever take notice
when the bottom line is hit. But I have to say it is a view which
I think naive. If a newspaper is successful, then the sorts of damages
which would be levied on it - certainly of the level we see in cases
before the Strasbourg Court - would be absolutely meaningless. Newspapers,
I suspect, would be quite happy to face damages of £10,000 or £15,000
- knowing full well that increased sales would more than make up for
it. In France, for example, where a privacy regime produces frequent
fines on newspapers and magazines, some publications wear the fine
as a badge of honour - and put the total on their front cover every
week. Damages - and the inherent suspicion that they have only been
levied because of some interesting material contained in the publication
- become a marketing tool, not a deterrent.

The same is not true of a critical adjudication by the Press Complaints
Commission - which has to be published in full and with due prominence
by an editor. The reason for this is that a critical adjudication
is an admission by an editor that he or she has broken the rules which
he or she framed and agreed to abide by. Far from being a marketing
tool, it instantly becomes a tool in the armoury of the competition
- that this is a newspaper which does not live up to the ethical standards
that the newspaper industry expects. That is the reason, in my view,
why all newspaper editors both seek to abide by the Code and fight
like wild cats to avoid a critical adjudication. It is also the reason
why when editors get something wrong, they like to put it right as
quickly as possible - lest they fall foul of the PCC by delaying and
breaching the Code. The fact that adherence to the Code is now contained
in the contracts of employment of virtually all editors - making flagrant
breaches of it a contractual matter for the publisher - is an added
incentive."

19. We respectfully agree. We accept the observation of Professor
Wacks that, "if we are to have a press council, then clearly
it makes sense for that body to have teeth. If it’s simply to
be a talking shop or a body that merely raps journalists across the
knuckles, it seems to be a waste of time and money to establish the
body." However, teeth of any press council can be in the form
of powers of censure, reprimand, compelling an apology and/or a correction
to be printed. We would to this extent endorse Recommendations
30, 31 and 33 (pp. 153-7 of the consultation paper
).

E. Self-Discipline/Self-Regulation

20. Despite the laudable efforts by various media groups to propose
the setting up of a non-statutory monitoring body to head off legislation,
the sad reality is that none of the proposals (see above at §§4.2-4.4)
can in truth be effective without the participation of all
newspapers and magazines in Hong Kong, in particular, the dominant
papers which find themselves under constant public attacks for breaching
media ethics.

21. On 18th November, 1999, the Newspaper Society of Hong Kong (an
organisation with membership of 10 local newspapers) submitted a proposal
for an independent non-statutory press council which will handle complaints
relating to privacy intrusion. It is suggested that each participating
newspaper would be given a seat with a proposed membership of between
29-35. The press would make up less than half its number. The Chairman
would be nominated by members and approved by a _ majority. Based
on a set of guidelines, the body would handle, investigate and rule
on complaints against media intrusion as well as make recommendations.

22. This proposal has not received widespread support. The current
membership of the Newspaper Society of Hong Kong 10 newspapers. Although
recent press reports suggest that NSHK had contacted 6 non-membered
dailies for support, viz., The Sun, Oriental Daily News, Apple
Daily, HK Economic Journal, HK Economic Times
and Sing Pao,
we are not aware that any positive response have been forthcoming.

23. Although the JF and NEA have agreed that a non-statutory monitoring
body is needed to police a code of ethics, the HKJA and PPA have expressly
objected to the joining of such a body, insisting instead on self-discipline
being tried first.

24. Our primary position is that if the media can come up with some
form of effective regulatory mechanism which applies to all media,
we would support this. However, in light of the past experience and
what has happened in the last few months, we have no reason to believe
that any voluntary system as that proposed by the Newspaper Society
of Hong Kong, however pure the motives, can be expected to be respected,
feared or obeyed.

25. In the meantime, we continue to read with horror flagrant transgressions
of media ethics by some delinquent papers:-

(1) On 6th October, 1999, the chief editor of the Apple
Daily
was summoned to court over an inaccurate and prejudicial
report which led to an 8-day murder trial being aborted. The trial
judge, Mr Justice Stock, called the report carried in the daily and
"unmitigated disgrace". He said, "whether he is guilty
or whether he is innocent, it matters not. Isn’t the defendant
entitled to feel that he is getting a fair trial? This is as serious
a murder trial as one is likely as one is likely to come across. It’s
a case that causes the family of the boy great distress, and it means
the father must come to give evidence again ... It require a great
deal of work by counsel, witnesses have given evidence and the time
of the police have been engaged. Costs have been expended, considerably,
and all of that must be thrown out a window because of a newspaper..."
The matter has since been referred to the Secretary for Justice for
a decision on possible future action against the paper.

(2) On 3rd November, 1999 an article in the Oriental
Daily News
published on 2nd November caused a fraud
trial in the High Court to be aborted. Mr Justice Suffiad, the trial
judge, said that he would contact editorial staff of the paper for
an explanation. Prosecutor said that the judge could also contact
the editor of Apple Daily concerning a "lessor" press
report of concern.

26. In a joint submission by the School of Journalism and Communication
at the Chinese University and School of Journalism at Baptist University,
the public was urged to "translate their dissatisfaction against
the media into action, demonstrating the key role of consumers in
the market place."

27. We do not believe that market censure would work.

28. The reason is this. If an electrical appliance or a toy is found
by the Consumer Council to be defective or dangerous it may be that
consumers would stop buying that particular product leading to the
manufacturer to improve its standards or face the consequence.

29. History and experience have shown that this does not begin to
apply in the case of the gutter press. The effect of any individual
boycott of a newspaper is marginal because newspapers are complex
package of which only a portion might offend the readers.

See Regulating the Media (1998),
Thomas Gibbons at pp. 46-48

30. In any event, even if the boycott be successful, it provides
no meaningful redress to the aggrieved individual whose interest is
of paramount concern.

F. A Possible Solution

31. In our view, an effective monitoring body depends on at least
3 things:-

(1) the body must have statutory backing with jurisdiction over all
print media;

(2) it must be truly free from government interference; and

(3) it must provide quick and accessible redress to parties aggrieved
by the press.

32. In this respect, we agree with the proposals proposed by Professor
Johannes Chan as set out in his Ming Pao Daily News article dated
24th September, 1999:

(1) A Private Members’ Bill be tabled before Legislative Council
for the establishment of a statutory press council. The drafting of
this Bill can be left to the media. The role of the government would
then be confined to commenting on the procedural propriety of the
Bill and not its content. This would guarantee that the legislation
if passed would be one that is acceptable to the media;

(2) The legislation will govern the composition, constitution and
power of the press council. The press council should comprise both
members of the media and other lay members;

(3) The press council shall have jurisdiction over all print media
in Hong Kong, which will include all magazines and newspapers;

(4) It can receive and handle complaints from the public as well
as initiate its own investigations;

(5) Once a complaint is held to be justified, the council shall have
power to reprimand the paper, order an apology and/or correction be
published by the delinquent newspapers in a prominent place. However,
it should not have the additional powers of imposing financial penalties,
which should be a matter for the court, except in the limited circumstances
when its rulings are flouted;

(6) The legislation must allow the press council to formulate its
own code of ethics. The draftsmen of the code should be those who
are familiar with and experience in this area of work, namely, the
media.

(7) As to the content of the code, it should primarily be directed
at media intrusion of privacy and inaccurate reporting
with room for future expansion to cover sleaze, violence and improper
news collecting methods;

(8) It is also important to provide the council with legal protection
against the law of defamation. The legislation should confer protection
by qualified privilege in respect of anything done by the council,
its members or employees in good faith in the exercise of powers or
functioning conferred by legislation.

33. We accept that this proposal is not without shortcomings:-

(1) It may take some time for the Bill to be drafted, debated and
passed into law. A period of six months to one year is not uncommon;

(2) Once the legislation is passed, it is open for it to be amended
in the future. The only protection against governmental interference
ties in a democratically elected legislature.

Dated 5th January 2000

Hong Kong Bar Association