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Political Advertising in Hong Kong

2015/3/3 — 10:23

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A. Introduction and Executive Summary

1. Between December 2013 and now, the Government launched two major television and radio broadcasting campaigns.  The first, which ran from December 2013 to July 2014 and urged Hong Kong residents to provide their views on electoral reform for the method of selection for the Chief Executive in 2017.[1]  (the “Public Information Campaign”).  The second, running from August 2014 to the present urges Hong Kong residents to accept the 31 August 2014 Decision of the Standing Committee of the National People's Congress (the “8.31 Decision”) (i.e. “袋住先” “pocket it now”) (the “Political Advertising Campaign”).   

廣告

2. This document sets out the Progressive Lawyers Group’s position in relation to the Political Advertising Campaign.  IN SUMMARY:

(1) Political Advertisements are Unlawful in Hong Kong
It is unlawful in the Hong Kong SAR for free-to-air television and radio broadcasters to air political advertisements or announcements that are of a “political nature”.  This restriction ensures that the democratic or consultative processes in Hong Kong are not unduly distorted or influenced, by groups with large financial resources, or with advantageous access to broadcasting media.

廣告

(2) The Government’s Advertising Campaign is Political Advertising and hence Unlawful
The advertisements broadcast pursuant to the Political Advertising Campaign cannot be lawfully classified as announcements in the public interest or public service advertisements (“API”) because they:

  (a) Neither inform nor educate the public of information but seek to persuade and influence the viewer that the Government proposals under the 8.31 Decision are able to secure universal suffrage and participation in the election of the Chief Executive in 2017 in accordance with the Basic Law;

  (b) Place additional pressure on Legislative Council members who have pledged to veto any legislative proposal limited to the 8.31 Decision framework as they are expressed the view that such proposals do not amount to “true” universal suffrage in accordance with the Basic Law;

  (c) They present factual matters incorrectly or omit important factual information most likely due to their political nature and slant; and

  (d) They fail to suggest the possibility of alternative views regarding the proposed electoral reforms or their validity under the Basic Law.

(3) The Government is requiring broadcasters to breach the law and distorting pluralistic debate on matters of public controversy
Broadcasters are required to broadcast APIs as a condition of their broadcast licenses.  Failure to do so will result in a breach of their license conditions.  By requiring broadcasters to air political advertisements under the API exemption, the Government is in effect requiring the broadcasters to breach the law, so that the debate concerning issues of public controversy are distorted in its favour.

3. This is not the first time the Government’s use of APIs has been criticised.  We fully agree with the submissions of the Hong Kong General Chamber of Commerce dated 25 November 2014.  At paragraph 4.9 they write[2]

“A considerable part of today’s API’s … are more about political issues than of broad public interest or genuinely important government messages such as those involving public health, safety, weather warnings or disasters requiring prompt delivery to members of the public via free TV.” 

4. As a Government which has repeatedly called upon the residents of Hong Kong to abide by the law, we urge the Government to withdraw all its Political Advertising Campaign with immediate effect.


B.  The Law on Political Advertising in Hong Kong

B.1 Political Advertising and the Freedom of Expression

5. Political advertising is a form of freedom of expression protected by the Basic Law.  The prohibition of political advertising over broadcast media amounts to an interference to that fundamental right.

6. Specific prohibitions on political advertising have been upheld in jurisdictions such as the Canadian Supreme Court,[3]  the English Supreme Court[4]  and the European Court of Human Rights, Grand Chamber.[5]

7. Other jurisdictions such as Australia[6]  , the United States and various European states[7]  allow political advertising but impose varying degrees of regulation (such as imposing reasonable limits to campaign expenses and duration and regularity of such adverts. 

B.2 Statutory Prohibition on Political Advertisement

8. Insofar as Hong Kong is concerned, the existing statutory scheme in force prohibits any broadcast advertisements which are of a political nature. 

9. The Broadcasting Ordinance, Cap. 562 (“BO”), which regulates the provisioning of broadcasting services by radio and television licensees expressly prohibits political advertising.  Schedule 4 Rule 12 of the BO expressly provides that “a licensee shall not include in its service any advertisement of a religious or political nature or concerned with any industrial dispute.”  (emphasis added)

10. The Generic Code of Practice on Television Advertising Standards (the “Code”)[8]  as approved[9]  by the Communications Authority (“Comms Authority”) defines an “advertisement” under Chapter 2, Paragraph 1 of the Code as:

“any material included in a … programme service which is designed to … promote the interests of any organization, commercial concern or individual; whether by means of words, sound effects (including music) and/or of visual presentation and whether in the form of direct announcements, slogans, descriptions or otherwise, as well as any promotional reference in the course of a programme to any products or services.”

11. APIs are excluded from the definition of an “advertisement”. They are therefore not subject to the Code and are, by definition, excluded as political advertisements.

B.3 Definition of Announcements in the Public Interest

12. APIs are important to convey important and often emergency information to the public.  They are required to be provided by all broadcasters free of charge

13. APIs typically include messages such as those involving public health, healthy eating, road safety, weather warnings or disasters requiring prompt delivery to members of the public.  As such an advertisement can only be defined as a API if its true purpose is to inform and educate the public by means of imparting information which is in the public interest.[10]  

B.4 Definition of Political Advertisement

14. The term “advertisement of a political nature” is not defined anywhere in the BO or in the Code. 

15. In Mok Charles Peterv Tam Wai Ho & Anor, the Court of Final Appeal[11]  held that:

“What is or is not ‘political’ must be a question of fact depending on a given context...A working (but by no means comprehensive) test of what constitutes a ‘political’ advertisement might be ‘something that expressly or impliedly encourages the public to vote a person or group into public office on the strength of their credentials; or what they promise to do once in office; or the unsuitability of some other person or group aspiring to or already in public office’.  (emphasis added).[12] 

16. In the UK where political advertising is similarly prohibited by statute, the Communications Act 2003[13]  defines political advertising as including advertisements which are directed towards a political end (such as influencing the outcomes of referendums, the legislative process, the policies, decisions of the Government, public opinion on matters which are a matter of public controversy).[14]  

17. We are of the view that the definition of “political advertising” in the Communications Act 2003 provides a useful and persuasive guide in considering whether an advertisement is of a “political nature” in a given context.


C. The Political Advertising Campaign

C.1 The Public Information Advertisements

18. On 4 December 2013, Government commenced a series of advertisements in television and radio broadcasts comprising of the slogans “政改三人組 實現普選” (Let’s Talk and Achieve Universal Suffrage”).[15]

19. This was followed up with another series of advertisements in television and radio broadcasts comprising of the slogans:

  (1) “由你由我一齊實現普選” (Let’s Achieve Universal Suffrage Together) on 6 February 2014;[16]

  (2) “把握機會實現普選” (Seize the Opportunity to Achieve Universal Suffrage) on 4 April 2014;[17]  and

  (3) “有根有據實現普選” (A Clear Basis for Universal Suffrage) on 8 June 2014.[18]

20. We are of the view that the aforesaid advertisements are APIs and not objectionable because they were for the purpose of informing the public about the ongoing public consultation on electoral reform and were inviting the general public to provide their views on the electoral method for the Chief Executive election in 2017.

C.2 袋住先 Pocket it Now – the Political Advertising Campaign

21. We of the view that the video and radio broadcast of  “有票,真係唔要” (Your Vote, Don’t Cast it Away!)[19]  released on 7 August 2014 is of a political nature and wrongly designated as an API:

  (1) By 7 August 2014, the Government had submitted its report to the NPCSC for deliberation.  It will be recalled that certain segments of the public were aggrieved by the report, who felt that the report did not reflect their views at all;

  (2) In that context, the combination of protest imagery (which suggests violence and turmoil), and the voiceover asking rhetorically “Wanna Change?” is clearly intended to influence and cast in a negative light, all those who oppose the limited reforms proposed by the Government to the NPCSC in its consultation report as troublemakers or an impediment to reform; and

  (3) There is nothing educational or informative or pressing about the aforesaid advertisement. 

22. Subsequent to the 8.31 Decision, the Government aired on television and radio channels, the following advertisements:

  (1)  “有票,梗係要” (Your Vote, Gotta Have It!)[20]  on 2 September 2014; and

  (2)  “2017 機不可失” (2017, Seize the Opportunity)[21]   10 January 2015.

23. In relation to the:

  (1) “Your Vote, Gotta Have It!” campaign, the video and radio broadcasts suggests, at the conclusion, “In 2017, I want to do more than just watch”. This is clearly directed to persuade and influence the viewer to demand the right to vote in 2017— in other words, to support the Government’s proposals under the 8.31 Decision; and

  (2) “2017, Seize the Opportunity” campaign, the voiceover declares “in the past we could only watch on TV, we did not take part in making the decision, only 1200 people voted, in 2017, 5 million persons can vote”, which is likewise directed to persuade and influence the viewer to demand the right to vote in 2017.

24. We are of the view that the aforesaid advertisements are also of a political nature and wrongly designated as APIs.  This is because there is nothing educational or informative or pressing about the aforesaid advertisements. 

25. Instead:

  (1) The advertisements seek to persuade and influence the viewer that the Government proposals under the 8.31 Decision can secure universal suffrage and participation in the election of the Chief Executive in 2017;

  (2) The advertisements also include slogans such as “Seize the Opportunity “機不可失”, “Your Vote. Gotta have it 有票, 梗係要!”, and “Your Vote. Don’t cast it away 有票, 真係唔要?”. They are designed to encourage public support for the passing of the Government’s proposal of the electoral reform, which is clearly a political matter;

  (3) The Government’s reasons and justifications of why such a proposal should be passed, which include the Government’s own interpretation of the Basic Law, are delivered by the Chief Secretary, the Secretary of Justice Rimsky Yuen, and the Secretary for Constitutional and Mainland Affairs who are persons of political weight and authority;

  (4) The message that only a select few could take part in all the past elections through voting is factually inaccurate.  The advertisements fail to inform the public that no votes were cast for the 2002 Chief Executive Elections because Mr. Tung Chee Hwa was the only validly nominated candidate at the close of nomination and therefore no elections took place;[22]  and

  (5) The Government did not provide, or even suggest the possibility of, alternative views regarding the Proposed Electoral Reforms, or Basic Law interpretations. Again, there is nothing educational or informative or pressing about the advertisements.

26. The advertisements also fall within the definition of “political nature” when seen in the context and circumstance that they are being broadcast, namely, that 24 pan-Democratic Legislative Council members have publicly pledged to veto the proposed legislative package which the Government requires passage of to give effect to the 8.31 Decision. 

27. The Political Advertisement Campaign therefore seeks to influence the legislative process by influencing the public opinion against the aforesaid Legislative Council members so as to pressure them to accept, rather than veto the intended legislative package

28. This view is supported by and consistent with the Comms Authority’s (or its predecessor) previous decisions concerning cases on political advertising by broadcasters:

  (1) In 2010:  Commercial Radio was fined HK$60,000 for broadcasting an advertisement for "March for Universal Suffrage" ("普選大遊行"廣告) held by the Alliance for Universal Suffrage. In making rationalizing its decision to fine Commercial Radio, the Broadcasting Authority held, inter alia:[23]

“Having regard to the facts of the case and the information from the website of the Alliance for Universal Suffrage about the event, the BA considered the March a political activity. Since there was no universal suffrage in Hong Kong at present, the remark "係時候普選啦" (it's time for universal suffrage) in all versions would reasonably and likely be understood as a call for a change in the existing election system. The BA also considered that the advertisement sought to promote a political message ("記住維園參加普選大遊行") (remember to join the March for Universal Suffrage at Victoria Park). Taken together, the BA concluded that the advertisement under complaint was clearly an "advertisement of a political nature" (emphasis added).”

  (2) In 2010:  Commercial Radio was fined HK$30,000 for airing certain episodes of the radio programme “Night Rider 18” (十八仝人愛落區), which was sponsored by the Democratic Alliance for the Betterment and Progress of Hong Kong (“DAB”). The Broadcasting Authority considered such to be political advertisements, since Commercial Radio failed to “[seek] prior approval of the BA and CR had failed to arrange clear announcement on the DAB’s sponsorship of the Programme.”[24]

D. Conclusion

29. In conclusion, we are of the view that the Government’s use of APIs to promote its Political Advertising Campaign is illegitimate.  We are particularly concerned for the following reasons:

  (1) Television and Radio Broadcasters must, as a matter of their licensing conditions, broadcast advertisements which are designated as APIs.[25]   Broadcasters are not entitled to charge the Government or change the contents of such APIs. This means that any political advertisement dressed up as an API is open for abuse as it gives the Government unfettered access to broadcast media for free while denying those who oppose Government initiatives the same access to broadcast media;

  (2) Given that broadcasters must broadcast APIs, what the Government has done is to place broadcasters in an impossible position by dressing up political advertisements as APIs such that broadcasters had no choice but to broadcast adverts which are of a political nature under the Political Advertising Campaign and in breach of their licensing conditions and illegal under the BO;

  (3) All other political parties are unable to express their views on an equal footing because any political advertising by them is unlawful.  This serves to distort any debate and ensures that pluralistic views are not aired;

  (4) Such broadcasts which have the effect curbing, influencing, and distorting free and pluralistic debate on matter of public controversy cannot therefore be said to be made in the public interest;

  (5) The Government in abusing the API exemption is essentially abusing the licensing conditions against free-to-air broadcasters to broadcast advertisements of a political nature; and

  (6) The Government has failed to abide by the same standards to which it has held political parties to – there is no distinguishable difference between the previous cases against Commercial Radio for airing political nature adverts for the Alliance for Universal Suffrage and the DAB.

30. As a Government which has repeatedly called upon the residents of Hong Kong to abide by the law, we urge the Government to withdraw all its political adverts with immediate effect.

 

Progressive Lawyers Group
1 March 2015

 

Footnotes:

[1] Chinese: http://www.2017.gov.hk/tc/multimedia/videos_audio.html
English: http://www.2017.gov.hk/en/multimedia/videos_audio.html

[2] http://www.chamber.org.hk/FileUpload/201411251631265682/TO-BO20141125.pdf

[3] Harper v AG [2004] 1 S.C.R. 827 (Canada) at paras 92 - 103

[4] R (On the Application of Animal Defenders International) v Secretary of State for Culture Media and Sport. [2008] UKHL 15.

[5] Animal Defenders International v United Kingdom (2013) 34 BHRC 137.  The Grand Chamber upheld the House of Lords decision on the basis that the UK is entitled to a margin of appreciation to prohibit political advertising as there is no European consensus.

[6] Australian Capital Television v Commonwealth (1992) 177 CLR 106

[7] Fn. 5 above at para. 123

[8] Similar provisions are provided in the Generic Code of Practice on Radio Advertising Standards Broadcasts.

[9] The Comms Authority is conferred with powers under s.3 of the BO to approve a Code of Practice which licensees must adhere to as a condition of their broadcast license.

[10] Ofcom v Mayor of Tower of Hamlets, Ofcom Broadcast Bulletin, Issue Number 222, 21 January 2013,pp.20-47, http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast-bulletins/obb222/ obb222.pdf

[11] Mok Charles Peter v Tam Wai Ho (2012) 15 HKCFAR 489, para 63-67, per Ma CJ.

[12] Mok Charles Peter v Tam Wai Ho [2009] 5 HKC 417, paras 41-42, per Reyes J.

[13] Repealed the Television Broadcast Act (upon which the BO is premised)

[14] s. 321(2) – (3) of the Communications Act 2003.

[15] Video clipping of Chief Secretary, Secretary for Justice and Secretary for Constitutional and Mainland Affairs informing that the consultation process has begun with a slogan “Let’s talk, Let’s Listen”.

[16] Video clipping of Chief Secretary, Secretary for Justice and Secretary for Constitutional and Mainland Affairs informing that the consultation process has begun, with various Hong Kong residents appearing and saying “with us” to achieve universal suffrage together.

[17] Video clipping of various Hong Kong residents discussing how universal suffrage can be implemented in 2017, ending with the Chief Secretary informing everyone to “Seize the Opportunity”.

[18] Video clipping of the Secretary for Justice stating that the selection of Chief Executive by universal suffrage in 2017 will be a constitutional milestone.

[19] Video of clippings of various past protests with voiceover asking a question “Wanna Change?”.

[20] Video of the past Chief Executive Elections with voiceover of a Hong Kong resident who was only able to observe past elections, but will be able to participate in the 2017 Chief Executive Elections

[21] Same as Fn.2 above

[22] http://www.elections.gov.hk/elections/ce_election/en/result.htm

[23] http://ba_archives.ofca.gov.hk/en/complaints/complaint_bacc/bacc201006e.html#a4

[24] http://ba_archives.ofca.gov.hk/en/complaints/complaint_bacc/bacc201009e.html#a2

[25] See, for example, Clause 18 in the most recent license of Television Broadcasts Limited, available at http://www.cedb.gov.hk/ctb/eng/broad/doc/TVB.pdf; Clause 18 in the most recent license of Asia Television Limited, available at http://www.cedb.gov.hk/ctb/eng/broad/doc/ATV.pdf; and Clause 20 in the most recent license of Hong Kong Cable Television Limited, available at http://www.cedb.gov.hk/ctb/eng/broad/hkctv_1.pdf.

 

 

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