Cap. 391 - Broadcasting (Miscellaneous Provisions) Ordinance

To provide for the vesting of functions of the Broadcasting Authority in the Communications Authority; and to provide for necessary arrangements consequential on the enactment of the Communications Authority Ordinance and for matters incidental thereto or connected therewith. (Amended 17 of 2011 s. 28) [1 September 1987] L.N. 277 of 1987(Format changes—E.R. 2 of 2012) Part 1 Preliminary 1. Short title This Ordinance may be cited as the Broadcasting (Miscellaneous Provisions) Ordinance.(Amended 17 of 2011 s. 28) 2. Interpretation In this Ordinance, unless the context otherwise requires—Authority (管理局) means the Communications Authority established by section 3 of the Communications Authority Ordinance (Cap. 616); (Amended 17 of 2011 s. 28)Broadcast Complaints Committee (廣播投訴委員會) and Committee (委員會) mean the Broadcast Complaints Committee appointed under section 10; (Amended 17 of 2011 s. 28) broadcasting (廣播) means— (a) in relation to sound broadcasting, transmitting sound (otherwise than as part of a television broadcast) for general reception by means of radio waves; (b) in relation to television broadcasting services, the provision of a television programme service within the meaning of section 2(1) of the Broadcasting Ordinance (Cap. 562); (Replaced 48 of 2000 s. 44) (c) (Repealed 48 of 2000 s. 44) Code of Practice (業務守則) means— (a) in relation to sound broadcasting, a Code of Practice issued by the Authority under section 19; (b) in relation to television broadcasting, a Code of Practice approved and issued under section 3 of the Broadcasting Ordinance (Cap. 562); (Replaced 48 of 2000 s. 44) (c) (Repealed 48 of 2000 s. 44) Commission (競委會) means the Competition Commission established by section 129 of the Competition Ordinance (Cap. 619); (Added 14 of 2012 s. 176 and E.R. 1 of 2013. Format changes—E.R. 1 of 2016) licence (牌照) means— (a) in relation to sound broadcasting, a licence granted under section 13C of the Telecommunications Ordinance (Cap. 106); (b) in relation to television broadcasting services, a licence granted (or deemed to be granted) under section 8 of the Broadcasting Ordinance (Cap. 562); (Replaced 48 of 2000 s. 44) (c) (Repealed 48 of 2000 s. 44) licensee (持牌人) means a company granted any such licence. (Replaced 52 of 1989 s. 2. Amended 17 of 2011 s. 28)(Amended 17 of 2011 s. 28; E.R. 2 of 2012) Part II (Repealed 17 of 2011 s. 28) 3. (Repealed 17 of 2011 s. 28) 4. (Repealed 17 of 2011 s. 28) 5. (Repealed 17 of 2011 s. 28) 6. (Repealed 17 of 2011 s. 28) 7. (Repealed 17 of 2011 s. 28) 8. (Repealed 17 of 2011 s. 28) Part 3 Function and Powers of the Authority (Amended 17 of 2011 s. 28) 9. Functions and powers of the Authority (1) The Authority shall have the following functions—(a) the functions imposed on it under the Broadcasting Ordinance (Cap. 562);(b) the functions imposed on it under Part 3A of the Telecommunications Ordinance (Cap. 106);(c) to administer the provisions of licences and any other provisions of such licences that confer a function on the Authority;(d) to secure proper standards of television and sound broadcasting with regard to both programme content (including advertisements) and technical performance of broadcasts including, without limitation, restrictions on the time of day when programmes and advertisements may be provided, whether for the same or different licensees or broadcasts;(e) to submit proposals and recommendations to the Chief Executive in Council with respect to technical, programme and advertising standards of television and sound broadcasting in order to assist the Chief Executive in Council in the making and amendment of regulations under the Broadcasting Ordinance (Cap. 562) or under Part 3A of the Telecommunications Ordinance (Cap. 106) governing such standards;(f) to conduct inquiries into such matters as may be referred to it by the Chief Executive in Council and to report the conclusions of such inquiries to the Chief Executive in Council;(g) such other functions as are assigned to it under this or any other Ordinance.(2) The Authority shall have, in addition to the powers expressly or impliedly conferred on it by or pursuant to this Ordinance, the Broadcasting Ordinance (Cap. 562) or Part 3A of the Telecommunications Ordinance (Cap. 106) or any other Ordinance, such incidental powers as are reasonably necessary for the performance of its functions.(Replaced 48 of 2000 s. 44. Amended E.R. 2 of 2012) 9A. (Repealed 48 of 2000 s. 44) 9B. (Repealed 48 of 2000 s. 44) 9C. (Repealed 48 of 2000 s. 44) 9D. (Repealed 48 of 2000 s. 44) 10. Broadcast Complaints Committee (Amended 17 of 2011 s. 28)(1) The Authority shall appoint a Broadcast Complaints Committee consisting of not less than 3 members of the Authority. (Amended 17 of 2011 s. 28)(2) The Committee may appoint such other persons to be members of the Committee as it deems fit.(3) A member of the Committee appointed under subsection (2)—(a) may be appointed to advise generally or on any particular matter; and(b) shall not have a vote on matters before the Committee.(4) The Committee shall appoint one of its members appointed under subsection (1) to be its chairperson. (Amended 17 of 2011 s. 28)(5) A member of the Committee—(a) shall, subject to paragraph (b) and to subsection (6), hold office for such period as the Authority or, in the case of a member appointed under subsection (2), the Committee, may determine; and(b) may resign from the Committee at any time by notice in writing addressed to the Authority or, in the case of a member appointed under subsection (2), to the chairperson of the Committee. (Amended 17 of 2011 s. 28)(6) A member of the Committee appointed under subsection (1) shall cease to hold office if he ceases to be a member of the Authority.(7) Subject to this section and to section 11, the Committee shall determine its own procedures. 11. Consideration of complaints by the Broadcast Complaints Committee (Amended 17 of 2011 s. 28)(1) Subject to subsections (2) and (3), where a person makes a complaint to the Authority that a licensee or any other person has contravened—(a) this Ordinance, the Broadcasting Ordinance (Cap. 562) or Part 3A of the Telecommunications Ordinance (Cap. 106); (Replaced 52 of 1989 s. 4. Amended 36 of 2000 s. 28)(b) the terms or conditions of a licence; or(c) a Code of Practice,the Authority shall refer the complaint to the Broadcast Complaints Committee. (Amended 17 of 2011 s. 28)(2) Subsection (1) shall not apply to a complaint concerning—(a) any matter in respect of which the Authority may, under Part 11 of the Competition Ordinance (Cap. 619), perform concurrently with the Commission the functions of the Commission under that Ordinance; or (Replaced 14 of 2012 s. 176 and E.R. 1 of 2013)(b) any matter referred to in section 19 of the Broadcasting Ordinance (Cap. 562) or any script or material supplied for broadcasting by the Government and broadcast by a licensee. (Replaced 48 of 2000 s. 44)(2A) The Authority shall refer to the Government a complaint which falls within subsection (2)(b). (Added 48 of 2000 s. 44)(3) The Authority may refuse to refer to the Committee a complaint that—(a) is, in the opinion of the Authority, trivial or frivolous; or(b) is not made in writing.(4) The Committee, upon receipt of a complaint referred to it under subsection (1), shall—(a) give the licensee or other person the subject of the complaint a reasonable opportunity to make representations both orally and in writing;(b) consider any representations made, whether orally or in writing, by or on behalf of the complainant and the licensee or other person the subject of the complaint;(c) consider any evidence received by it, whether tendered on behalf of the complainant or otherwise, which it considers relevant to the complaint; and(d) make recommendations concerning the complaint to the Authority.(5) (Repealed 17 of 2011 s. 28)(6) The Committee may receive such evidence as it thinks fit and neither the provisions of the Evidence Ordinance (Cap. 8) nor any other rule of law relating to the admissibility of evidence shall apply in proceedings before the Committee.(7) For the purposes of this section the Committee shall have and may exercise any of the powers vested in the Authority by section 25 of the Broadcasting Ordinance (Cap. 562), by section 22 of this Ordinance, by any term or condition of a licence for satellite television services or satellite sound services or by any term or condition of a licence granted under section 13C of the Telecommunications Ordinance (Cap. 106) requiring a licensee to supply to the Authority on demand any material, including the script thereof. (Amended 52 of 1989 s. 4; 10 of 1992 s. 5; 22 of 1993 s. 52; 36 of 2000 s. 28)(Amended 48 of 2000 s. 44; E.R. 2 of 2012) 11A. (Repealed 14 of 2012 s. 176) 12. (Repealed 17 of 2011 s. 28) 13. (Repealed 17 of 2011 s. 28) 14. (Repealed 17 of 2011 s. 28) 15. (Repealed 17 of 2011 s. 28) 16. (Repealed 17 of 2011 s. 28) Part 4 Sound Broadcasting Licences (Part 4 added 52 of 1989 s. 8) 17. Application This Part applies only in respect of sound broadcasting. 18. (Repealed 22 of 1993 s. 54) 19. Codes of Practice (1) The Authority may from time to time—(a) issue Codes of Practice relating to standards of programmes and advertisements broadcast by a licensee; and(b) issue Codes of Practice providing for the technical requirements with which a licensee shall comply in broadcasting. (Amended 17 of 2011 s. 28)(2) Codes of Practice issued under this section shall not be inconsistent with standards established by regulations made under section 13O of the Telecommunications Ordinance (Cap. 106). (Amended 36 of 2000 s. 28) 20. Directions by the Authority The Authority may issue directions in writing to a licensee requiring it to take such action with regard to the standards of programmes or advertisements, including the time of their broadcasting and the content or balance of any programme, or with regard to the technical standards of broadcasts, as the Authority considers necessary in order for the licensee to comply with any regulations made under section 13O of the Telecommunications Ordinance (Cap. 106), and Code of Practice or any term or condition of its licence and the licensee shall give effect to such direction.(Amended 22 of 1993 s. 55; 36 of 2000 s. 28) 21. Inquiry by Authority (1) Where he considers that there may be cause for revoking a licence the Chief Executive in Council may direct the Authority to conduct an inquiry for the purpose of making recommendations concerning the revocation of the licence specified in the direction. (Amended 55 of 1999 s. 3)(2) In conducting an inquiry under this section the Authority may consider information and matter received from any source.(3) The following provisions shall apply in relation to the making of recommendations by the Authority under this section—(a) the Authority shall not recommend the revocation of a licence unless—(i) it has given to the licensee concerned notice in writing stating that the Authority is considering the making of such a recommendation and the grounds upon which such a recommendation is being considered; and(ii) it has given the licensee concerned the opportunity of making representations or objections concerning the recommendation under consideration; and(b) the Authority shall consider any representation or objection made to it by the licensee concerning the recommendation under consideration and such further information or matter as it may consider necessary having regard to such representations or objections.(4) The notice referred to in subsection (3) shall, in addition to stating the matters required by that subsection, state that representations and objections concerning the recommendation under consideration may be made to the Authority (either orally or in writing or both) during such period (being a period of not less than 28 days beginning on the date of receipt by the licensee of the notice) as shall be specified in the notice.(5) The Authority shall thereafter make recommendations to the Chief Executive in Council. (Amended 55 of 1999 s. 3) 22. Investigation of licensee’s business (1) If the Authority is satisfied that it is necessary for the proper performance of any of its functions under this Ordinance, it may in writing authorize any person to do all or any of the following at all reasonable times— (Amended 17 of 2011 s. 28)(a) require any person whom he reasonably believes to be employed in connection with the business of a company to which this section applies to produce for examination any book, record or other document which relates to such business and which is in his possession or under his control;(b) examine and, if he thinks fit, take copies of, or copies of any entry in, any book, record or other document so produced;(c) remove any such book, record or other document for further examination; and(d) require any director or servant of such company to give him such explanation or further particulars in respect of a book, record or other document produced in compliance with a requirement under paragraph (a) as he shall specify.(2) Where any information or matter relevant to an investigation under this section is recorded otherwise than in a legible form, the powers conferred by subsection (1) to require the production of any book, record or other document shall include power to require the production of a reproduction of the recording of any such information or matter or of a relevant part of it in a legible form.(3) A magistrate may, if satisfied by information on oath laid by the chairperson or vice-chairperson of the Authority or by the Director-General of Communications— (Amended 17 of 2011 s. 28)(a) that it is reasonably necessary for the proper performance of the functions of the Authority that entry be obtained to any building or other premises in which a company to which this section applies carries on business; and(b) that permission to enter such building or premises has been refused or that entry is likely to be refused, issue a warrant authorizing a person authorized under subsection (1) to enter such building or premises, and such person may exercise therein the powers specified in subsection (1).(4) A person who is a director or a servant of a company to which this section applies shall assist and shall not obstruct a person exercising a power under this section in respect of such company.(5) Any book, record or other document removed under this section may be retained for any period not exceeding the period of 6 months beginning on the day of its removal or, where the book, record or other document is required in connection with any criminal proceedings, for such longer period as may be necessary for the purposes of those proceedings.(6) Where a person removes a book, record or other document under this section he shall, as soon as reasonably practicable, give a receipt for it, and he shall, permit any person who would be entitled to inspect it but for such removal to inspect the document at any reasonable time and to make copies of and take extracts from it; but any such permission shall be subject to such reasonable conditions as to security or otherwise as the Authority may impose.(7) Every person exercising any power under subsection (1) shall upon request, produce for inspection evidence of his identity and of his authorization under subsection (1).(8) This section applies to a company that is a licensee or a subsidiary (as defined by section 15 of the Companies Ordinance (Cap. 622) for the purposes of that Ordinance) of a licensee. (Amended 28 of 2012 ss. 912 & 920) 23. Confidential material to be safeguarded (1) Subject to subsection (2)—(a) any information which is furnished, and any book, record or other document which is produced, by a licensee to a person authorized under section 22(1), thereby, shall be confidential; and(b) unless the licensee otherwise permits and except in accordance with such permission no such information or book, record or other document or any copy thereof shall be divulged or shown to any person other than in confidence to members of the Authority or any committee of the Authority, or to a public officer acting in the performance of his duties under or for the purposes of this Ordinance.(2) Subsection (1) shall not be construed as prohibiting the disclosure of information—(a) with a view to the institution of or otherwise for the purpose of any criminal proceedings or any investigation in connection therewith, whether under this Ordinance or otherwise, in Hong Kong; or(b) in connection with civil proceedings to which the Authority is a party. 24. Authority may impose financial penalties (1) The Authority may, by notice in writing addressed to a licensee, require the licensee to pay to the Government the financial penalty specified in such notice in any case where a financial penalty is payable under subsection (2). (Amended 17 of 2011 s. 28)(2) A financial penalty may be imposed on a licensee by the Authority where the licensee—(a) fails to comply with any of the terms or conditions of the licence;(b) fails to comply with a provision of this Ordinance or Part 3A of the Telecommunications Ordinance (Cap. 106) or a regulation made thereunder; (Amended 36 of 2000 s. 28)(c) fails to comply with any Code of Practice; or(d) fails to comply with any direction issued by the Authority under this Ordinance.(3) A financial penalty imposed on a licensee under subsection (2) shall not exceed—(a) $80,000 for the first occasion on which a penalty is so imposed on that licensee;(b) $200,000 for the second occasion on which a penalty is so imposed on that licensee; and(c) $400,000 for any subsequent occasion on which a penalty is so imposed on that licensee. (Amended 48 of 2000 s. 44)(3A) The Authority shall not impose a financial penalty under this section unless, in all the circumstances of the case, the financial penalty is proportionate and reasonable in relation to the failure or series of failures concerned giving rise to that penalty. (Added 48 of 2000 s. 44)(4) No financial penalty shall be imposed under subsection (2) unless the Authority is satisfied that the licensee has been afforded reasonable opportunity of complying with the requirement in respect of which the penalty is sought to be imposed.(Amended E.R. 2 of 2012) 25. Recovery of financial penalty (1) Any financial penalty imposed by the Authority under section 24 shall be recoverable by the Government as a civil debt in any court of competent jurisdiction.(2) Any certificate in writing purporting to be made by the Authority to the effect that a financial penalty imposed under section 24 is owing to the Government shall be prima facie evidence of that fact.(Amended 17 of 2011 s. 28) 25A. Licensee to include correction or apology in sound broadcasting service (1) Subject to subsection (3), the Authority may, in a case described in subsection (2), direct a licensee by a notice in writing served on it, to include in a sound broadcasting service specified in the notice, a correction or apology, or both, in a form approved by the Authority, in such manner (including within such period and within such time of day) as is specified in the notice.(2) The Authority may issue a direction under subsection (1) if it is satisfied that the licensee did not comply with—(a) a licence condition;(b) a requirement under this Ordinance applicable to the licensee;(c) a direction or order issued, or determination made, under this Ordinance applicable to it; or(d) a provision in a Code of Practice applicable to it.(3) The Authority shall not issue a direction under subsection (1) unless the licensee has been given a reasonable opportunity to make representations in writing to the Authority regarding the matter complained of.(4) Where the licensee carries out a direction under this section, it may announce that it is doing so pursuant to the direction.(Added 48 of 2000 s. 44) 26. Appeal to the Chief Executive in Council (1) A licensee aggrieved by— (Amended 10 of 1992 s. 7)(a) any decision of the Authority in the exercise of any discretion vested in it under the licence, this Ordinance, Part 3A of the Telecommunications Ordinance (Cap. 106) or any regulation made thereunder; or (Amended 36 of 2000 s. 28)(b) anything contained in any Code of Practice or direction issued by the Authority, may within 30 days of the notification to him of the decision or direction of the Authority or within 30 days of the date of issue of the Code of Practice, as the case may be, appeal by way of petition to the Chief Executive in Council. (Amended L.N. 145 of 1992)(2) Except in the case of the suspension of a licence under any provision of the licence, an appeal made under this section shall not affect the operation of the decision, direction or Code of Practice appealed against prior to the determination of the appeal.(3) The Chief Executive in Council may determine an appeal lodged under this section by confirming, varying or reversing any decision, or direction of the Authority or by amending any Code of Practice to the extent that it is inconsistent with the determination.(Amended 55 of 1999 s. 3; E.R. 2 of 2012) 27. (Repealed 17 of 2011 s. 28) 28. Transitional If there is any period between the last day of the last report submitted by the Broadcasting Authority under the repealed section 15 and the date of commencement* of the Communications Authority Ordinance (Cap. 616), the Communications Authority must submit a report in respect of that period and that section applies to the report as if it had not been repealed.(Added 17 of 2011 s. 28)Editorial Note:* Commencement date : 1 April 2012.