1. Legal and enforcement framework
1.1 Which legislative and regulatory provisions govern media in Hong Kong?
For present purposes, we define ‘media’ as encompassing television broadcasting, sound broadcasting, print and film.
Media in Hong Kong is primarily governed by the following legislation:
- the Communications Authority Ordinance (Cap 616);
- the Broadcasting Ordinance (Cap 562);
- the Broadcasting (Miscellaneous Provisions) Ordinance (Cap 391);
- the Telecommunications Ordinance (Cap 106);
- the Trade Descriptions Ordinance (Cap 362);
- the Competition Ordinance (Cap 619);
- the Registration of Local Newspapers Ordinance (Cap 268);
- the Books Registration Ordinance (Cap 142);
- the Film Censorship Ordinance (Cap 392); and
- the Control of Obscene and Indecent Articles Ordinance (Cap 390).
1.2 Which bodies are responsible for enforcing the applicable laws and regulations in the media sector? What powers do they have?
Television and sound broadcasting: The Communications Authority is the independent regulatory body responsible for enforcing, overseeing and regulating the television and sound broadcasting sectors. Given the interplay between the media and the telecommunications sector, some responses below refer to the telecommunications sector as well.
The Communications Authority shares concurrent jurisdiction with the Customs and Excise Department to enforce the fair trading provisions of the Trade Descriptions Ordinance (Cap 362) in the telecommunications and broadcasting sectors.
The Communications Authority also shares concurrent jurisdiction with the Competition Commission to enforce the Competition Ordinance (Cap 619) for the telecommunications and broadcasting sectors.
The Communications Authority operates through its executive arm, called the Office of the Communications Authority (OFCA).
The Communications Authority’s powers include the power to:
- grant, renew, regulate and monitor telecommunications and broadcasting licences;
- manage and administer the radio frequency spectrum and the telecommunications numbers;
- develop technical standards and conduct equipment testing in line with international best practices; and
- conduct examination and issuing certificates for the operating personnel of radiocommunications systems.
Separately, the Communications Authority is empowered to:
- make recommendations to the Chief Executive in Council on applications for licences;
- grant and renew television programme licences; and
- conduct examinations and issue certificates for the operating personnel of radiocommunications systems.
Print: The Registrar of Newspapers is the governing body in respect of the Registration of Local Newspapers Ordinance (Cap 268).
The Office for Film, Newspaper and Article Administration (OFNAA) is responsible for registering local newspapers under the Registration of Local Newspapers Ordinance (Cap 268).
The secretary for culture, sports and tourism is the governing body in respect of the Books Registration Ordinance (Cap 142).
Film: The Film Censorship Authority is the governing body in respect of the Film Censorship Ordinance (Cap 392). The Film Censorship Authority’s powers include:
- considering films submitted and issuing certificates of exemption and approval before exhibition; and
- assigning censors or advisers to a film.
OFNAA is responsible for enforcing its film classification system. Its powers include:
- classifying films for public exhibition and publication, and granting exemptions from classification;
- enforcing the age restriction for audience admission and other provisions under the Film Censorship Ordinance (Cap 392); and
- gauging public opinions on film classification standards.
All: The Obscene Articles Tribunal is the governing body of the Control of Obscene and Indecent Articles Ordinance (Cap 390). It adjudicates “on the offensiveness of the articles voluntarily submitted to it by publishers and law enforcement agencies, or referred to it by magistracies in the course of proceedings”.
OFNAA is responsible for controlling the publication of obscene and indecent articles by enforcing the Control of Obscene and Indecent Articles Ordinance (Cap 390). Its duties include:
- regulating the publication and public display of obscene and indecent articles; and
- taking enforcement and prosecution actions against violations of the Control of Obscene and Indecent Articles Ordinance (Cap 390).
1.3 What is the general approach of those bodies in regulating the media sector?
According to OFCA, the Communications Authority “adopts a light-handed and pro-competition approach” to its regulatory obligations.
OFNAA closely follows the standards of taste and decency accepted by the community and reflects them in its decision making to provide a regulatory framework for film censorship, publication monitoring and local newspaper registration.
1.4 What other industry codes of conduct or best practices are applicable in the media sector?
The Communications Authority may issue codes of practice and guidelines in respect of telecommunications services and television and sound broadcasting services. Key codes of practice and guidelines issued by the Communications Authority in relation to media include guidelines for programme standards, advertising standards and exemptions from service provision requirements.
Film: The Film Censorship Authority has issued the Film Censorship Guidelines for Censors to explain how censors exercise their functions under the Film Censorship Ordinance (Cap 392).
Print: OFNAA provides helpful guidance and elaborations in respect of the Registration of Local Newspapers Ordinance (Cap 268), the film classification system under the Film Censorship Ordinance (Cap 392) and enforcement of the Control of Obscene and Indecent Articles Ordinance (Cap 390) on its website and through published guides.
2. Ownership
Who is eligible to provide services in the media sector in Hong Kong? Are there any restrictions on foreign ownership? Do any domicile requirements apply? What other requirements or restrictions apply in this regard?
Sound broadcasting: Under the Telecommunications Ordinance (Cap 106), an applicant may apply for a sound broadcasting licence if:
- it is a registered company in Hong Kong;
- it is empowered under its articles of association to comply fully with the Telecommunications Ordinance (Cap 106) and the terms and conditions of its licence allow it to apply for a sound broadcasting licence;
- the frequency in the radio spectrum that the applicant proposes to use is available as at the date of the application; and
- that frequency is suitable for use in providing the proposed broadcasting service.
Certain restrictions are imposed on ‘unqualified persons’ and ‘disqualified persons’ in terms of holding a sound broadcasting licence.
An ‘unqualified person’ is a person:
- who is not for the time being ordinarily resident in Hong Kong and who has at any time been resident for a continuous period of not less than seven years; or
- that is not a company which is ordinarily resident in Hong Kong.
A ‘disqualified person’ can be:
- a licensee under the Telecommunications Ordinance (Cap 106);
- a person holding a domestic free television programme service licence or a domestic pay television programme service licence under the Broadcasting Ordinance (Cap 562), or an associate of such; and
- a person that exercises control of a corporation that is a person referred to above.
‘Unqualified persons’ cannot hold, directly or indirectly, any right, title or interest in more than 49% of the total number of voting shares in the licensee.
‘Disqualified persons’ cannot exercise control of a corporation that is a licensee, except in exceptional circumstances granted by the Governor in Council.
There are also temporary restrictions on any disposal or acquisition of voting shares of a licensee without the prior consent of the Communications Authority.
Television broadcasting: Television broadcasting under the Broadcasting Ordinance (Cap 562) is divided into four types of services:
- domestic free television programme services (DFT);
- domestic pay television programme services (DPT);
- non-domestic television programme services (NDT); and
- other licensable television programme services (OT).
To apply for a DFT or DPT licence, the company applicant must:
- be ordinarily resident in Hong Kong;
- have a majority of its directors actively participate in the direction of the company;
- have a quorum for every meeting of the directors of the company;
- ensure that the majority of the directors of the company and the majority of the principal officers of the company are individuals, each of whom is for the time being ordinarily resident in Hong Kong and has been so resident for at least one continuous period of not less than seven years;
- have no ‘disqualified person’, other than a person whose disqualification is disclosed;
- be empowered under its articles of association to comply with the Broadcasting Ordinance (Cap 562) and its licence conditions; and
- be registered under the Companies Ordinance (Cap 622).
A ‘disqualified person’ under the Broadcasting Ordinance (Cap 562) means:
- a licensee in the same category of licence;
- a licensee in a different category of licence;
- a person that exercises control over a licensee mentioned above; or
- an associate of a person that is a disqualified person as defined above.
A licensee is prohibited from exercising control over a disqualified person unless approval is given by the chief executive in Council.
To apply for an NDT or OT, the company applicant must:
- have not less than one director or principal officer of the company who is an individual who is for the time being ordinarily resident in Hong Kong and has been so resident for at least one continuous period of not less than seven years;
- be empowered under its articles of association to comply with the Broadcasting Ordinance (Cap 562) and its licence conditions; and
- be a company formed and registered under the Companies Ordinance (Cap 622) or under the former Companies Ordinance.
Print and film: There are no ownership restrictions or requirements for newspapers, books or films in Hong Kong.
3. Authorisations/licences
3.1 What authorisations and/or licences are required to operate in the media sector? Do any exemptions apply? Do these vary depending on the service to be provided?
Sound broadcasting: The basic licensing requirement is that no person can establish or maintain a broadcasting service without a licence. Under the Telecommunications Ordinance (Cap 106), ‘broadcasting’ is defined as transmitting sound (otherwise than as part of a television broadcast) for general reception by means of radio waves.
The Chief Executive in Council is the competent authority with power to issue sound broadcasting licenses.
There are no exemptions in respect of obtaining a sound broadcasting licence if a company wishes to provide sound broadcasting services.
Television broadcasting: The basic licensing requirement is that no person can provide a television broadcasting service (domestic free television programme services (DFT), domestic pay television programme services (DPT), non-domestic television programme services (NDT) or other licensable television programme services (OT)) without a licence.
The Broadcasting Ordinance (Cap 562) sets out specific services that are not to be regarded as television programme services. Examples include:
- any service provided on the Internet; and
- any programme service exclusively between points specified by the person transmitting the programme service and the person receiving it and which is not made available to any other person.
Print: Under the Registration of Local Newspapers Ordinance (Cap 268) (RLNO), publications containing news, information and commentaries that are published at intervals not exceeding six months must be registered.
The RLNO sets out items which are not to be regarded as newspapers for the purposes of the RLNO, such as:
- academic journals;
- commercial circulars;
- religious materials; and
- sales catalogues.
The publisher of a new book must, within one month of the book being published, printed, produced or otherwise made in Hong Kong, deliver it to the secretary for registration.
The Books Registration Ordinance (Cap 142) specifies the books whose registration is not required, which include:
- newspapers that issue their editions not less than four times a week; and
- any books that are not made available to the public at large.
Film: A person may not exhibit a film publicly in Hong Kong unless exempted or approved by the Film Censorship Authority.
The Film Censorship Ordinance (Cap 392) provides for specific films that may be considered exempt from approval by the Film Censorship Authority. For example, a still film is exempt from approval by the Film Censorship Authority if it complies with specific requirements such as it not being exhibited for a commercial purpose.
3.2 What are the key features of such authorisations/licences?
Sound and television broadcasting: The key features of a sound or television broadcasting licence are:
- the period of validity;
- the payment of fees, royalties or other charges;
- general conditions; and
- the specific terms and conditions as specified in the licence.
Licence conditions may vary according to the types of television and sound broadcasting service, but the general conditions are:
- to apply up-to-date technology to perfect the quality of broadcasting and comply with the broadcasting coverage requirements;
- to handle complaints and conduct training programmes to ensure that staff are familiar with the broadcasting standards;
- for sound broadcasting, to broadcast commercial free-to-air radio services;
- to broadcast on radio services or on domestic free television programme services no less than a stipulated minimum amount of comprehensive news bulletins, current affairs programmes, programmes for young persons and senior citizens, arts and culture programmes and so on within a specified period of time;
- to implement the plans on capital investment and programme development as approved by the Communications Authority; and
- to keep proper maintenance of their equipment and transmitting stations
Specific terms and conditions for television broadcasting include:
- potentially, a requirement to submit a duly issued performance bond in favour of the Hong Kong government;
- compliance with the licensee’s proposal approved by the Communications Authority;
- Separate accounting practices in accordance with the Broadcasting Ordinance (Cap 562); and
- A requirement that the licensee and any person exercising control of the licensee be and remain a fit and proper person.
Film: If the Film Censorship Authority approves a film for exhibition and gives it a classification, the authority will issue to the person that submitted the film a certificate of approval endorsed with any condition determined by the Film Censorship Authority.
3.3 What are the procedural and documentary requirements to obtain such authorisations/licences?
Sound and television broadcasting: An applicant must:
- complete the application form, statutory declaration, consultation form and an acknowledgment form (if required) in English or Chinese; and
- submit these documents with supporting documents to the Communications Authority, including:
- company information (eg, documents regarding the structure, shareholders, constitutional documents);
- programming information; and
Print: The newspaper publisher or the printer of every local newspaper must deliver to the Registrar of Newspapers a copy of the newspaper within one day of publication.
The publisher of a new book must deliver, free of charge, five copies of the book to the secretary for culture, sports and tourism for registration, together with all maps, prints or other engravings contained in the book, within one month of the book being published, printed, produced or made in Hong Kong.
The publisher must also forward to the secretary in writing any particulars of the book that the secretary requires to register the relevant book.
Film: A film intended for exhibition must be submitted to the Film Censorship Authority, accompanied by:
- a statement as to the classification which is sought for the film;
- a declaration as to whether the film has been classified as obscene or indecent (including material that is violent, depraved or repulsive) under the Control of Obscene and Indecent Articles Ordinance (Cap 390); and
- such forms, information and particulars as the Film Censorship Authority may determine.
A submission may be made electronically through a portal of the Office for Film, Newspaper and Article Administration.
3.4 What does the authorisation/licensing process involve? How long does it typically take? What costs are incurred?
Sound and television broadcasting: For both sound and television broadcasting licences, OFCA will examine each application to see whether all required information has been provided. If OFCA is satisfied that the applicant meets all the requirements, the Communications Authority will then consult the public on the application by publishing a notice on the Communication Authority’s website, in one English daily newspaper and in one Chinese daily newspaper.
The public may make representations on the application to the Communications Authority by a date specified in the notice, being not less than 21 days after the notice is published. The Communications Authority will consider those representations.
If the Communications Authority is satisfied that the applicant meets all the requirements set out in the legislation and all other factors relevant for the application, it will then make recommendations to the Chief Executive in Council, who will determine whether to grant the broadcasting licence to the applicant. The length of time to process an application varies, but it usually takes a minimum of one year.
If the licence is granted, the Chief Executive in Council will determine the fees or other charges (whether annual or otherwise) specified in the licence.
In respect of applications for NDT licences or OT licences, the Communications Authority will review the applications and determine whether to issue the relevant licence. In general, it takes about four months from the receipt of all required documents and clarifications of the applicant.
The prevailing annual licence fee payable for a DFT licence comprises:
- a fixed fee of HK$4,701,400; and
- a variable fee calculated on the basis of the aggregate duration of the television programmes provided by the licensee in the preceding licensing year at the rate of:
- HK$13,200 per 100 hours for the first 17,000 hours; and
- HK$1,630 per every 100 hours thereafter.
The prevailing annual licence fee payable for a DPT licence comprises:
- a fixed fee of HK$1,533,000; and
- a variable fee calculated by multiplying HK$4 by the number of subscribers (if any) to the service provided under the licence.
The annual licence fee payable for a Type A NDT Licence is HK$56,400. The annual licence fee payable for a Type B NDT licence is:
- HK$74,000; and
- a variable fee depending on the number of subscribers.
The annual licence fee payable for a Type A OT licence is:
- HK$73,500; and
- a variable fee depending on the number of subscribers.
The annual licence fee payable for a Type B OT licence is:
- HK$16,800; and
- a variable fee depending on the number of subscribers.
Film: The Film Censorship Authority will assign, as soon as practicable but in any case no later than seven working days after the film is submitted, a censor and may at the same time assign not less than two advisers.
If a film requires classification, the censor must decide on its classification within:
- 14 days of the film’s acceptance by the Film Censorship Authority; or
- any such longer period as the secretary for commerce and economic development may allow.
The fees payable for examination depend on the type of film and item to be examined.
3.5 What are the ongoing rights and obligations of the authorisation/licence holder? How is compliance monitored? What penalties may be imposed for breach?
Sound broadcasting: The ongoing rights of a licence holder are that the licence holder may conduct the activities set out in its licence for the validity period of the licence.
The ongoing obligations for each licence holder vary according to the specific licence in question. Common ongoing obligations include:
- ensuring that all persons exercising control of the licence holder are fit and proper persons;
- following conditions imposed under the licence to the satisfaction of the Communications Authority;
- maintaining the ownership or voting control required under the Telecommunications Ordinance (Cap 106) and by the Communications Authority;
- ensuring that its articles of association comply fully with the provisions of the Telecommunications Ordinance and the terms and conditions of its licence; and
- supplying the Communications Authority with information upon request under the Telecommunications Ordinance (Cap 106).
The Communications Authority will monitor holders of sound broadcasting licences to ensure that they are meeting their licence conditions and regulations. The Communications Authority has the power to investigate any suspected contravention of the licence conditions, codes of practice and the Telecommunications Ordinance (Cap 106). The public can also lodge a complaint or report to the Communications Authority in respect of a sound broadcasting licence holder.
Breaches by a sound broadcasting licensee of the terms or conditions of its licence, the Telecommunications Ordinance (Cap 106), an applicable code of practice or any direction issued by the Communications Authority may result in financial penalties and a requirement for the licensee to broadcast an apology or correction.
Television broadcasting: The ongoing rights of a licence holder are that that the licence holder may conduct the activities set out in its licence for the validity period of the licence.
The ongoing obligations for each licence holder vary according to the specific licence in question. Common ongoing obligations include:
- complying with specific and general licence conditions of the licence;
- complying with requirements under the Broadcasting Ordinance (Cap 562);
- comply with directions, orders, or determinations under the Broadcasting Ordinance (Cap 562) that apply to the licensee;
- complying with applicable codes of practice;
- securing proper standards for its licensed services with regard to television programme content and technical performance; and
- ensuring that licensed services do not include subliminal messages.
The Communications Authority monitors television broadcasting licence holders in the same way as sound broadcasting licence holders. Breaches also attract similar penalties.
Film: The Film Censorship Authority will monitor compliance with the endorsed conditions imposed on a certificate. If a person contravenes the conditions, then the person may be subject to fines or imprisonment.
3.6 For how long is the authorisation/licence valid? Are variations to the terms possible? How is the authorisation/licence renewed?
Sound broadcasting: A sound broadcasting licence will be valid for such period as is specified in the licence or, where a period is not specified, such period as determined by the Chief Executive in Council by order.
The licence is intended to facilitate long-term business and normally the validity period of a sound broadcasting licence is up to 12 years.
The Chief Executive in Council may vary the terms and conditions of a licence.
A licence will be subject to renewal:
- within the period of validity on such dates as specified in the licence; or
- where not specified, on such dates as may be determined by the Chief Executive in Council by order.
The Communications Authority will submit recommendations to the Chief Executive in Council concerning the renewal of a licence. The recommendations must be made within 15 months of the date for renewal. The Chief Executive in Council may then renew the licence or renew a licence by granting a new licence in substitution (Section 13F of the Telecommunications Ordinance (Cap 106)).
Television broadcasting: A television broadcasting licence will be valid for such period as is specified in the licence.
The licence is intended to facilitate long-term business and normally the validity period of a television licence is 12 years.
The Chief Executive in Council (for DPT or DFT licences) or the Communications Authority (for NDT or OT licences) may vary a licence at any time after the licensee has been given reasonable opportunity to make representations under the Broadcasting Ordinance (Cap 562) (Section 10 of the Broadcasting Ordinance (Cap 562)). The Chief Executive in Council or Communications Authority may vary the licence without prior consent of the licensee.
A licensee may apply by application to renew or extend its licence. The application must be made within:
- 24 months of the expiry date for the licence; or
- such shorter period as the Communications Authority specifies.
3.7 Can an authorisation/licence be transferred? If so, what is the process for doing so?
Sound broadcasting: A sound broadcasting licence may be assigned with the prior approval of the chief executive in Council.
If the licensee wishes to assign its licence, it must first approach the Communications Authority. The Communications Authority will then analyse the assignment application and make recommendations to the Chief Executive in Council.
Television broadcasting: A licence or an interest in a television broadcasting licence may not be transferred in whole or in part.
4. Media
4.1 What rules and requirements apply to public broadcasters in Hong Kong?
For present purposes, we interpret ‘public broadcasters’ as holders of domestic free television programme service (DFT) licences.
In addition to the rules and requirements for DFT licensees (as listed in questions 2.1(c) and 3.4(c)), DFT licensees must:
- entertain, inform and educate, and ensure that the programming is balanced in content and a comprehensive service which is responsive to the diverse needs and aspirations of the community;
- broadcast a service in the Chinese language and another in the English language;
- keep the aggregate time of advertising within 10 minutes per hour between the period from 5:00 pm to 11:00 pm each day; and at other times ensure that the aggregate advertising time does not exceed 18% of the total time the service is provided in that period;
- broadcast a minimum amount of different types of programmes per week on the Chinese and English service, including:
- news;
- current affairs programmes;
- arts and culture programmes; and
- programmes for children, young persons and senior citizens;
- provide subtitling for all news, current affairs programmes, weather programmes and emergency announcements;
- ensure that nothing unsuitable for children is shown within family viewing hours (ie, between 4:00 pm and 8:30 pm), and at times when programmes are specifically targeting children or under circumstances such that a large number of children might be expected to be watching television;
- comply with the supplementary provisions, which include:
- the minimum broadcasting hours per day;
- the prohibition on advertisements of a religious or political nature or concerned with industrial disputes; and
- the annual payment of licence fee and such other fees as may be prescribed;
- comply with any specified requirements of the Communications Authority to include in its television programme service, without charge, any educational television programme for schools supplied by the Hong Kong government;
- broadcast, during designated periods, a minimum amount of positive programmes as may be directed by the Communications Authority;
- provide the service in such a manner as to enable it to be received throughout Hong Kong to the satisfaction of the Communications Authority; and
- report to the Office of the Communications Authority in the event of any outage of broadcasting services.
4.2 What rules and requirements apply to commercial broadcasters in Hong Kong?
For the purposes of this section, we interpret ‘commercial broadcasters’ as holders of domestic pay television programme service (DPT), non-domestic television programme services (NDT) or other licensable television programme services (OT) licences.
DPT: In addition to the rules and requirements for DFT licensees, DPT licensees must:
- provide the service in such a manner as to enable it to be received throughout Hong Kong to the satisfaction of the Communications Authority (unless exempted by the Communications Authority);
- comply with the supplementary provisions, which include the prohibition of any advertisements of a religious or political nature or concerned with industrial disputes; and
- notify the Communications Authority in advance of all changes to channel line-ups and provide details of any new channels to be included in the service.
NDT: NDT licensees must take all reasonable steps to ensure the acceptability of their services in, and to comply with the laws and programme and advertising standards stipulated by the relevant authorities of, recipient countries and places.
DPT, NDT and OT: These licensees must provide a television programme service locking device to the satisfaction of the Communications Authority (excluding service provided to hotel rooms). A ‘locking device’ controls access to the service and prevents unauthorised access.
4.3 Do any ‘must-carry’ obligations apply in Hong Kong? If so, what are they and how are they funded?
No ‘must-carry’ obligations apply in Hong Kong. However, both DFT and DPT licensees must provide the service in such a manner as to enable it to be received throughout Hong Kong, or any specified parts of Hong Kong required by the DPT licence, to the satisfaction of the Communications Authority.
4.4 Do any local content requirements apply in Hong Kong? Do any restrictions apply to foreign content? What exemptions and/or exceptions are available?
The local content requirements are set out in questions 4.1 and 4.2 above for DFT and DPT licensees.
There are no general restrictions that apply to the content of NDT or OT licensees. The Communications Authority may provide for specific exemptions as stated in the relevant licence.
4.5 What other content requirements and restrictions apply in Hong Kong? Do these vary depending on the distribution channel (eg, traditional broadcast media versus new media)?
There are no content requirements or restrictions other than as stated above in respect of television broadcasting.
4.6 How is advertising regulated in Hong Kong? Does this vary depending on the distribution channel?
There is no general legislation to regulate advertising in Hong Kong. Advertising is regulated depending on the distribution channel.
5. Competition
5.1 What competition-related provisions (e.g., structural or functional separation requirements; significant market power requirements; media plurality rules) apply in the media sector?
The Competition Ordinance (Cap 619) governs the competition-related provisions relevant to sound broadcasting, television broadcasting and print sectors, for which the first conduct rule and the second conduct rule apply. The first conduct rule prohibits anti-competitive agreements, concerted practices and decisions. The second conduct rule prohibits the abuse of market power.
5.2 To what extent can the national competition regulator intervene in the media sector? What is the interplay between the competition regulator and the various sectoral regulators?
Sound and television broadcasting: Under the Competition Ordinance (Cap 619), the Communications Authority is conferred concurrent jurisdiction with the Competition Commission to enforce the Competition Ordinance (Cap 619) in respect of the conduct of undertakings operating in the telecommunications and broadcasting sectors. Specifically, the Communications Authority may perform the functions of the Competition Commission under the Competition Ordinance (Cap 619) insofar as they relate to:
- licensees under the Telecommunications Ordinance (Cap 106) or Broadcasting Ordinance (Cap 562); and
- persons that, although not such licensees, are persons whose activities require them to be licensed under the Telecommunications Ordinance (Cap 106) or Broadcasting Ordinance (Cap 562) (Section 159 of the Competition Ordinance (Cap 619)).
The Communications Authority and the Competition Commission have signed a memorandum of understanding to coordinate the performance of their functions on which they have concurrent jurisdiction. Competition cases will be handled by the two authorities according to the arrangements set out in the memorandum of understanding.
If the matter falls within the scope of concurrent jurisdiction, the initiating authority will inform the other and determine which will be the lead authority. For cases involving the telecommunications and broadcasting sector and falling within the concurrent jurisdiction, the Communications Authority will ordinarily take the role of the lead authority and will assume responsibility for exercising the relevant powers and functions conferred upon it under the Competition Ordinance (Cap 619). The other competent authority will play a supporting role in such a manner as is appropriate or agreed, including by providing staffing support to assist the other side to the extent that resourcing allows.
If, at any point, it is not appropriate for the lead authority to continue considering a matter, the lead authority may refer the matter to the other competent authority.
Print: The Competition Commission enforces the Competition Ordinance (Cap 619) in respect of the conduct of undertakings operating in the print sector.
5.3 How are mergers and acquisitions in the media sector treated from a competition perspective?
From a competition perspective, mergers and acquisitions are not treated any differently in the sound broadcasting, television broadcasting and print sectors from other sectors in the economy.
5.4 What other specific challenges or concerns do the media sector present from a competition perspective?
From a competition perspective, the specific challenges for certain companies that wish to enter the television broadcasting or sound broadcasting industries are the restrictions on foreign ownership and domicile requirements.
6. Data security and cybersecurity
6.1 What data security regimes apply in the media sector?
The main legislative regime with provisions relating to data security is the Personal Data (Privacy) Ordinance (Cap 486) (PDPO).
Telecommunications providers are likely to be considered data users under the PDPO, and are subject to the obligations and requirements set out in the PDPO. A ‘data user’ means a person that, either alone or jointly or in common with other persons, controls the collection, holding, processing or use of personal data.
The PDPO sets out six data protection principles (DPPs):
- DPP1: Personal data must be collected in a lawful and fair manner, and the data user must give specified information to a data subject when collecting his or her personal data.
- DPP2: Personal data must be accurate and up to date, and kept for no longer than necessary.
- DPP3: Personal data should only be used for the purposes for which it was collected or a directly related purpose. Otherwise, the data user must obtain the ‘prescribed consent’ of the data subject.
- DPP4: The data user must have measures in place to ensure the confidentiality and security of personal data.
- DPP5: Data users must provide general information about the kinds of personal data they hold and the main purposes for which personal data is used.
- DPP6: Data subjects must be given a right to access their personal data and a right to correct it.
DPP4 is the most relevant in respect of data security and requires data users take all practical steps to protect the personal data they hold against unauthorised and accidental access, processing, erasure, loss or use. Data users must have particular regard to:
- the nature of the data;
- the potential harm if such events were to happen; and
- measures to ensure the integrity, prudence and competence of persons with access to the data.
If personal data is entrusted by the data user to a data processor, the data user is liable as the principal for any act done by its authorised data processor. The data user must adopt contractual or other means to prevent:
- any personal data transferred to the data processor from being kept for longer than necessary for processing the data; and
- unauthorised or accidental access, processing, erasure, loss or other inappropriate use of the personal data.
6.2 What cybersecurity regimes apply in the media sector?
Hong Kong does not have a single overarching cybersecurity law, though this will in the coming months with the coming into law of the Protection of Critical Infrastructure (Computer System) Bill. The communications and broadcasting sectors are designated as essential services under the Bill, and the Communications Authority will be designated authority to monitor ongoing obligations of those sectors with the planned statutory requirements.
Currently, offences relating to cybersecurity are contained in various laws.
Telecommunications Ordinance (Cap 106): The Telecommunications Ordinance (Cap 106) criminalises actions involving:
- damage to telecommunications infrastructure with intent;
- unauthorised access to computers by telecommunications; and
- transmission of false or deceptive distress messages.
Crimes Ordinance (Cap 200): The Crimes Ordinance (Cap 200) criminalises access to a computer with criminal or dishonest intent.
PDPO: The PDPO provides for offences for the disclosure of personal data without consent, among other things.
Unsolicited Electronic Messages Ordinance (Cap 593): This criminalises the initiation of transmissions of multiple commercial electronic messages from telecommunications devices that are accessed without authorisation and with the intent to deceive or mislead recipients as to the source of the messages.
Interception of Communications and Surveillance Ordinance (Cap 589): Subject to limited exceptions, it is unlawful for a public officer to carry out intercepting acts relating to communications. ‘Intercepting acts’ involve the inspection of some or all of the contents of the communication, in the course of its transmission by a postal service or by a telecommunications system, by a person other than its sender or intended recipient. One relevant exemption is that the prohibition does not apply to any interception of telecommunications transmitted by radiocommunications (other than the radiocommunications part of a telecommunications network for the provision of a public telecommunications service by any carrier licensee under the Telecommunications Ordinance (Cap 106)).
Enforcement: There is no single authority responsible for enforcing cybersecurity laws in Hong Kong. Rather, the competent enforcement authority will depend on the nature of the offence in question.
The Hong Kong Police Force is the enforcement authority for crime in Hong Kong. The Cybersecurity and Technology Crime Bureau is responsible for:
- handling cybersecurity issues;
- carrying out technology crime investigations and computer forensic examinations; and
- preventing technology crime.
The PCPD is the competent authority for regulation of personal data matters, and will conduct investigations and issue enforcement notices.
The commissioner on interception of communications and surveillance is responsible for overseeing compliance by law enforcement agencies and their officers with the relevant requirements under the ICSO.
Policy: At a policy level, information security and cybersecurity fall under the remit of the Office of the Government Chief Officer (OGCIO). Its work involves the following:
- The Hong Kong Computer Emergency Response Team Coordination Centre (HKCERT) is the centralised contact on computer and network security incident reporting and response for local businesses and internet users in case of security incidents.
- The Cybersec Infohub is a partnership programme to promote closer collaboration among local information security stakeholders in different sectors to share cybersecurity information and jointly defend against cyberattacks. It is not intended for cybersecurity incident reporting, which is the role of HKCERT.
- The OGCIO has established an information security website portal to facilitate the public’s access to various information security-related resources and updates.
6.3 What other specific challenges or concerns do the media sector present from a data security/cybersecurity perspective?
Operators in the media sector must consider requests from enforcement authorities to obtain access to communications, and this can be an area of concern or challenge.
In general, the Hong Kong police do not have the authority to conduct indiscriminate surveillance or search or seizure of data without prior authorisation.
Search and seizure with warrant: A warrant overrides any right to refuse disclosure on the basis of the PDPO and any contractual confidentiality obligations owed to third parties. However, there is no obligation to provide or disclose information or material that is subject to legal professional privilege.
Persons that fail to cooperate with enforcement authorities without a reasonable excuse commit an offence and may be criminally liable and arrested for obstructing the police in the execution of their lawful duties. Also, a number of offences are committed for failing to comply with court orders to provide access to information or prejudicing investigations.
Search and seizure without warrant: Warrants must generally be granted by the judiciary before police officers can carry out search and seizures at a specific site. However, in certain situations, a senior police officer may also authorise officers to carry out a search without a warrant or perform covert surveillance operations in circumstances where it is not reasonably practicable to obtain authorisation.
Covert interception of communication: The Hong Kong police may intercept communications or conduct covert surveillance upon obtaining authorisation from:
- a designated authorising officer, for less intrusive covert surveillance operations; or
- a panel judge, for more intrusive covert surveillance operations
The purpose of the operation must be confined to the prevention or detection of serious crimes or the protection of public security. In addition, the tests of proportionality and necessity must be met, including the requirement that the purpose of the operation cannot reasonably be fulfilled by other less intrusive means. Any application for authorisation must state a specific serious crime or threat to public security.
The National Security Law provides similar legislative power for the Hong Kong police to carry out covert interception of communication or surveillance. The application procedure and the criteria required are largely identical to those of the ICSO, except:
- an application under the National Security Law must relate to an offence of endangering national security; and
- applications made under the National Security Law are generally made to the chief executive or the commissioner of police in emergency situations (rather than a panel judge).
Disclosure of personal data: Exemptions are specified in the PDPO in which data users can disregard certain provisions. Data users may disclose personal data to law enforcement agencies, such as the Hong Kong police, if the use of personal data by the law enforcement agencies is for:
- the prevention or detection of crime; or
- the apprehension, prosecution or detention of offenders.
However, simply because a law enforcement agency requests personal data does not mean that data users can provide the data requested without complying with DPP3 (which relates to the use of personal data for a new purpose).
Data users must consider whether non-provision of the data would be so serious as to be likely to prejudice the purposes for which it is collected. The view taken by the PCPD is that it is prudent for data users to make enquiries with the law enforcement agency on:
- the purpose for which the personal data is collected;
- the reasons why the personal data concerned is relevant; and
- the reasons why the data subject’s consent should not be obtained by the enforcement agency.
7. Trends and predictions
What are the legislative trends and developments in Hong Kong for the broadcasting and media sector?
Digital television broadcasting: The Hong Kong government has promoted the use of innovative technologies to provide a conducive environment for the development of broadcasting industry.
For example, Hong Kong implemented full digital television broadcasting on 1 December 2020. To tie in with the implementation of full digital television broadcasting, the government launched the Community Care Fund Digital Television Assistance Programme from 14 January 2020 to 15 July 2021 to help needy analogue television households to purchase digital television sets or set-top boxes, so that they could continue to watch free television after the implementation of full digital television broadcasting.
National Security: The National Security Law and Safeguarding National Security Ordinance govern national security protection in Hong Kong. Media outlets continue to take care to manage the risk of possible non-compliance with these laws.
Cybersecurity: The Protection of Critical Infrastructure (Computer System) Bill will likely be considered and passed by the Legislative Council within 2024. The Commissioner’s Office proposed under the legislation will be established within the Security Bureau within one year from passing of the legislation, and the legislation will come into force six months after.
8. Tips and traps
What are your top tips for new entrants seeking to operate in the broadcasting and media sector in Hong Kong?
The foreign ownership restrictions and domicile requirements to obtain a domestic free television programme services, domestic pay television programme services or sound broadcasting licence are a potential obstacle, although not necessarily unusual in broadcasting. That said, there is no cap on the number of television broadcasting licences that can be granted, subject to physical and technological constraints.
The Hong Kong government has also adopted an ‘open sky’ policy. Through satellite master antenna television (SMATV) and television receive-only systems, Hong Kong viewers can receive satellite TV channels that are intended for general reception as uplinked from Hong Kong and elsewhere.
According to the Commerce and Economic Development Bureau of Hong Kong, more than 600 such free-to-air satellite channels are now available for reception in Hong Kong. Over 770,000 premises in multi-storey buildings have access to satellite television channels through their SMATV systems.
Pádraig Walsh and Tara Chan
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last updated on 08 January 2025.
