Cho Man Kit v Broadcasting Authority

Photo Source: The Standard
https://www.thestandard.com.hk/section-news/section/4/219829/LGBT-charter-in-planning-stages

Cho Man Kit v Broadcasting Authority HCAL 69/2007

Summarised by Lau Lok Yiu, Yoyo  (Associate)

Facts:

In 2006, the Radio Television Hong Kong (RTHK) produced a documentary-style television programme named “Gay Lovers”, which recorded the day-to-day lives of two gay couples and explored the fears and aspirations of the homosexuals in Hong Kong. However, the broadcast of the programme led to a number of complaints received by the Broadcasting Authority. Therefore, the Authority reached and published the determination that the content of the programme failed to meet the requirement of impartiality and the programme should have been broadcast at a later hour, which in other words meant that the broadcast of the programme violated the code of practice. Dr. Cho Man Kit asserted that the ruling of the Authority was discriminatory, unreasonable, unlawful and based on misinterpretation of the code of practice, and thus applied for a judicial review to quash the determination made by the Authority.  
Issues:

1. Whether the content of the programme failed to meet the requirement of impartiality; and 
2. Whether the programme was unsuitable for broadcasting during family viewing hours.  

  
Decisions and Reasonings:

In response to Issue 1, the code of practice requires all programmes dealing with factual issues to preserve due impartiality if they consider matters of public policy or controversial issues of public importance. The court interpreted “due impartiality” in a broad sense that the programme should be fair and not prejudiced either for or against the issues discussed. Hence, despite the absence of different opinions on homosexual marriage, on any reasonable viewing, the programme was not designed to actively advocate any specific idea, but it was merely a study of the human condition. Therefore, the court observed that the Authority had misinterpreted the code of practice; and this resulted in an impermissible restriction on the speech freedom of broadcasting, which founded on a discriminatory factor – homosexuality. In short, the court decided that the content of the programme had fulfilled the requirement of impartiality.  
Concerning Issue 2, the Authority claimed that homosexuality was a controversial issue which might be offensive and unsuitable for immature children in Hong Kong. The court held that the protection of the sensibilities of children was a permissible restriction on speech freedom of broadcasting. Yet, the court noted that it might be unrealistic to suggest that modern children in Hong Kong were so vulnerable that they should not watch the programme. However, it went to the merits of the Authority’s ruling but not its lawfulness. In a nutshell, the court decided that the Authority’s determination on Issue 2 was lawful. 

Moreover, the Broadcasting Authority argued that its determination was published and became a final decision, so it was impossible to reconsider the determination. Yet, the court observed that there was no form of appeal process towards the determination. Thus, it would be procedurally unfair to regard the determination as a final decision. Hence, the court stated that the Authority had the power to revisit the determination made.  
In conclusion, the court held that: 

1. The Broadcasting Authority should bring up and quash the determination; and  
2. The decision of the Authority that it had no power to revisit its determination was wrong in law.  

Comments :

The decision is essential in the way that the court has interpreted “due impartiality” in the code of practice of broadcasting in a broad sense. This helps avoid any form of discrimination against the homosexuals and protect the freedom of speech of broadcasting to a large extent. Also, the court leaves a note that it is unrealistic to say that modern children in Hong Kong are so vulnerable that they should not watch programmes about homosexuality, which seems to imply that homosexuality may not be offensive and unsuitable for children in Hong Kong. However, as Ms. Puja Kapai recommended [1], the court should serve as a conduit for minority representation in different cases. Therefore, it is better for the court to take the merits of the Broadcasting Authority’s ruling into account. In this way, the court must be more helpful for the LGBT+ community to maintain their rights.    

[1] Puja Kapai, ‘A Principled Approach Towards Judicial Review: Lessons from W v. Registrar of Marriages’ (2011) 41 Hong Kong Law Journal 49-75.