An Ordinance to license companies to provide broadcasting services, to regulate the provision of broadcasting services by licensees, and to provide for matters incidental thereto or connected therewith. [The Ordinance (other than } sections 13, 14, 16 and 17) 7 July 2000 Sections 13, 14, 16 and 17 } 16 February 2001 L.N. 45 of 2001] (Originally 48 of 2000) Cap 562 s 1 Short title PART I PRELIMINARY (1) This Ordinance may be cited as the Broadcasting Ordinance. (2)-(3) (Omitted as spent) Cap 562 s 2 Interpretation (1) In this Ordinance, unless the context otherwise requires- "associate" (相联者)- (a) subject to paragraph (b), in relation to- (i) a voting controller holding voting control, means the same as it does in the definition of "associate" in Part 1 of Schedule 1; (ii) a disqualified person, means the same as it does in relation to a voting controller holding voting control, with the modification that any reference in the definition mentioned in subparagraph (i) to a voting controller shall be construed as a reference to a disqualified person; (iii) a licensee, means the same as it does in relation to a voting controller which is a corporation holding voting control, with the modification that any reference in the definition mentioned in subparagraph (i) to a voting controller which is a corporation shall be construed as a reference to a licensee; (iv) a person who exercises control of a licensee, means the same as it does in relation to a voting controller holding voting control, with the modification that any reference in the definition mentioned in subparagraph (i) to a voting controller shall be construed as a reference to a person who exercises control of a licensee;(b) does not include a person who is not an associate in accordance with the provisions of a notice under subsection (2);"Broadcasting Authority" (广管局) means the Broadcasting Authority established under section 3 of the Broadcasting Authority Ordinance (Cap 391); "broadcasting service" (广播服务) means- (a) a domestic free television programme service; (b) a domestic pay television programme service; (c) a non-domestic television programme service; or (d) an other licensable television programme service;"Chief Secretary" (司长) means the Chief Secretary for Administration; "Code of Practice" (业务守则) means a Code of Practice approved under section 3; "company" (公司) means the same as it does in the definition of "company" in section 2(1) of the Companies Ordinance (Cap 32); "conditions" (条件), in relation to a licence, means the conditions specified in the licence, the conditions specified in this Ordinance which are applicable to the licence and the conditions specified in a notice under section 10(3) which are applicable to the licence; "corporation" (法团) means a company or other body corporate; "decoder" (解码器) means an apparatus, component part of an apparatus, or other component in electronic or tangible form, which is designed or adapted to enable (whether of its own or with any other apparatus) an encrypted television programme service to be decoded; "disqualified person" (不符合持牌资格人士) means the same as it does in the definition of "disqualified person" in Part 1 of Schedule 1; "domestic free television programme service" (本地免费电视节目服务) means a television programme service which- (a) is intended or available for reception by the public free of charge in Hong Kong; (b) is intended or available for reception by an audience of more than 5000 specified premises; and (c) primarily targets Hong Kong;"domestic pay television programme service" (本地收费电视节目服务) means a television programme service which- (a) is intended or available for reception by the public, on payment, whether periodically or otherwise, of a subscription in Hong Kong; (b) is intended or available for reception by an audience of more than 5000 specified premises; and (c) primarily targets Hong Kong;"domestic premises" (住宅) means any premises which are constructed or intended to be used for habitation; "dominant position" (支配优势) means dominant position construed in accordance with section 14; "exercise control" (行使控制) means the same as it does in Part 1 of Schedule 1; "function" (职能) includes a power and a duty; "hotel room" (酒店房间) means accommodation within the meaning of section 2(1) of the Hotel Accommodation Tax Ordinance (Cap 348); "influence" (影响、影响力) means the same as it does in the definition of "influence" in Part 1 of Schedule 1; "let for hire" (出租) includes invite to let for hire; "licence" (牌照) means a licence- (a) granted under section 8(1) to provide a domestic free television programme service or domestic pay television programme service; or (b) granted under section 8(2) to provide a non-domestic television programme service or an other licensable television programme service;"licensee" (持牌人) means the holder of a licence; "licensed service" (领牌服务) means a broadcasting service the subject of a licence; "material" (材料) includes pictures (whether moving or not), words, music and other sounds, whether produced, spoken or made simultaneously or otherwise; "newspaper" (报刊) means a paper or other publication or a supplement thereto available to the public which- (a) contains news, intelligence, occurrences or any remarks, observations or comments in relation to such news, intelligence or occurrences or to any other matter of public interest; (b) is published for sale or free distribution and periodically (whether half-yearly, quarterly, monthly, fortnightly, weekly, daily or otherwise), or in parts or numbers at intervals not exceeding 6 months; and (c) does not comprise exclusively any item or items specified in Schedule 2;"non-domestic television programme service" (非本地电视节目服务) means a television programme service which- (a) is- (i) intended or available for reception by the public- (A) free of charge in Hong Kong; or (B) on payment, whether periodically or otherwise, of a subscription in Hong Kong; or(ii) neither intended nor available for reception by the public- (A) free of charge in Hong Kong; or (B) on payment, whether periodically or otherwise, of a subscription in Hong Kong; and(b) does not primarily target Hong Kong;"offer for sale" (要约出售) includes invite to offer for sale; "ordinarily resident in Hong Kong" (通常居于香港)- (a) in relation to an individual, means- (i) residence in Hong Kong for not less than 180 days in any calendar year; or (ii) residence in Hong Kong for not less than 300 days in any 2 consecutive calendar years;(b) in relation to a corporation, means a corporation which satisfies the following- (i) if the number of directors who actively participate in its direction- (A) is 2, each is an individual; (B) is more than 2, each of a majority of them is an individual, for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) and has been so resident for at least one continuous period of not less than 7 years; and(ii) the control and management of the corporation is bona fide exercised in Hong Kong;"other licensable television programme service" (其他须领牌电视节目服务) means a television programme service which is intended or available for reception- (a) free of charge in Hong Kong or on payment, whether periodically or otherwise, of a subscription in Hong Kong; and (b) either- (i) subject to subsection (12), by an audience of not more than 5000 specified premises; or (ii) in hotel rooms;"performance bond" (履约保证), in relation to a licensee, means a first demand performance bond or bank guarantee- (a) issued by a bank within the meaning of section 2(1) of the Banking Ordinance (Cap 155); (b) in favour of the Government; and (c) which complies with the provisions of the notice under subsection (3) applicable to the licensee,to secure compliance by the licensee with any of its licence conditions;"practicable" (切实可行) means reasonably practicable; "prescribed Ordinance" (订明条例) means- (a) this Ordinance; (b) the Telecommunications Ordinance (Cap 106); or (c) the Broadcasting Authority Ordinance (Cap 391);"principal officer" (主要人员) means the same as it does in the definition of "principal officer" in Part 1 of Schedule 1; "provide" (提供), in relation to a broadcasting service, includes establish and operate; "public place" (公众地方) means a place to which the public or a section of the public may or are permitted to have access from time to time, whether by payment or otherwise; "representations" (申述) means representations in writing; "restriction" (限制) includes restraint; "specified" (指明), in relation to a form, means specified under section 41; "specified premises" (指明处所) means any domestic premises, or hotel room, in Hong Kong; "subscription" (收看费) means a fee payable by or on behalf of any person for the right to view a television programme service in Hong Kong; "subsidiary" (附属公司) has the same meaning as in the Companies Ordinance (Cap 32); "telecommunications" (电讯) means the same as it does in the definition of "telecommunications" in section 2(1) of the Telecommunications Ordinance (Cap 106); "Telecommunications Authority" (电讯局长) means the Telecommunications Authority appointed under section 5 of the Telecommunications Ordinance (Cap 106); "television programme" (电视节目) means moving visual representational images (that is, images comprised within sequences of visual images capable of being seen as moving images), or a combination of sounds and such images, that are intended to inform, enlighten or entertain, but does not include visual images that consist predominantly of alphanumeric text, data, graphs, charts, diagrams or video games; "television programme service" (电视节目服务)- (a) subject to paragraph (b)- (i) means the provision of a service that includes television programmes for transmission by telecommunications- (A) that are readily accessible to, or made available to, the general public in or outside Hong Kong; or (B) to persons, in 2 or more specified premises, simultaneously or on demand, whether on a point-to-point or a point-to-multipoint basis, or any combination thereof, having equipment appropriate for receiving that service; and(ii) includes a service, or a service belonging to a class of services, which is a television programme service in accordance with the provisions of a notice under subsection (5)(a);(b) does not include the provision of a service that- (i) consists only of a television programme that is made solely for performance or display in a public place; (ii) consists only of a television programme that is intended wholly or mainly for the purposes of the trade, business, employment or profession of the recipient (but excluding a television programme delivered to hotel rooms); (iii) consists only of a service that is specified in Schedule 3; or (iv) is a service, or a service belonging to a class of services, which is not a television programme service in accordance with the provisions of a notice under subsection (5)(b);"television programme service locking device" (锁码装置) means a device which enables a person to whom a television programme service is or is to be provided to control access to the service; "unauthorized decoder" (未经批准的解码器) means a decoder by means of which encrypted television programmes or encrypted television programme services provided under a licence can be viewed in decoded form without payment of a subscription where a subscription is required to be paid; (Added 8 of 2004 s. 2) "voting control" (表决控制权) and "voting controller" (表决控权人) mean the same as they do in the definitions of "voting control" and "voting controller" respectively in Part 1 of Schedule 1; "voting share" (有表决权股份), in relation to a corporation, means a share which entitles the registered owner of the share to vote at meetings of the shareholders of the corporation. (2) The Broadcasting Authority may, by notice in the Gazette, declare that persons specified in the notice are not associates if the Broadcasting Authority specifies in the notice that it is satisfied that- (a) the persons do not act together in any relevant dealing relating to a licensee or disqualified person; and (b) each person is not in a position to exert influence over the business dealings of the other person in relation to that licensee or disqualified person.(3) The Chief Executive in Council or the Broadcasting Authority, as the case may require, may, by notice in writing, specify the form and the amount of a first performance bond or bank guarantee mentioned in the definition of "performance bond" in subsection (1). (4) For the purposes of this Ordinance- (a) transmission on a point-to-point basis means that each transmission (of which there may be more than one at the same time, but independent of and separate from one another) is between one point and only one other point; (b) transmission on a point-to-multipoint basis means that a transmission is between one point and 2 or more other points; (c) a television programme does not cease to be so merely because it is an interactive programme, that is, a programme which is designed so that the viewer can participate in or influence its contents and method of presentation (if it is otherwise a television programme).(5) The Chief Executive in Council may, by notice in the Gazette- (a) declare a service, or a class of services, specified in the notice to be a television programme service, or a class of television programme services, as the case may be; (b) declare a service, or a class of services, specified in the notice not to be a television programme service, or a class of television programme services, as the case may be.(6) Any reference in this Ordinance to the performance of a function shall be construed as including the exercise of a power or the performance of a duty, as the case may require. (7) Where, in relation to a corporation, 2 or more persons have a joint interest, then for the purposes of this Ordinance each of those persons shall be regarded as having the entire interest to the exclusion of the other persons. (8) For the purposes of this Ordinance- (a) Schedules 1 and 4, unless otherwise stated, shall have effect to and in relation to a domestic free television programme service, domestic free television programme service licence and domestic free television programme service licensee; (b) Schedules 1 and 5, unless otherwise stated, shall have effect to and in relation to a domestic pay television programme service, domestic pay television programme service licence and domestic pay television programme service licensee; (c) Schedule 6, unless otherwise stated, shall have effect to and in relation to a non-domestic television programme service, non-domestic television programme service licence and non-domestic television programme service licensee; (d) Schedule 7, unless otherwise stated, shall have effect to and in relation to an other licensable television programme service, other licensable television programme service licence and other licensable television programme service licensee.(9) For the avoidance of doubt, it is hereby declared that- (a) a television programme service includes any advertisements comprised within the service; (b) a notice under subsection (2) or (3) is not subsidiary legislation; (c) a notice under subsection (5) is subsidiary legislation; (d) where a condition specified in a licence makes any reference to an approval by or of the Broadcasting Authority or the Telecommunications Authority (or words to the like effect), then that approval may be given subject to such conditions as the Broadcasting Authority or the Telecommunications Authority, as the case may be, thinks fit; (e) a provision of this Ordinance which requires information or a document to be disclosed or otherwise given to the Broadcasting Authority or any other person does not operate to require a person to disclose or otherwise give any information or document which the person could not be compelled to disclose or otherwise give in evidence in civil proceedings before the Court of First Instance.(10) Subsection (9)(e) shall not apply to the disclosure by a solicitor of the name and address of a client of the solicitor. (11) In exercising their powers under this Ordinance, the Broadcasting Authority and the Telecommunications Authority shall- (a) when forming an opinion or making a determination, direction or decision under this Ordinance, only do so on reasonable grounds and having regard to relevant considerations; (b) when forming an opinion or making a determination, direction or decision under this Ordinance, provide reasons in writing for it.(12) The Broadcasting Authority may, by notice in writing served on the licensee, or the person seeking to be a licensee, concerned, waive the requirement specified in paragraph (b)(i) of the definition of "other licensable television programme service" if the Broadcasting Authority is satisfied that the other licensable television programme service concerned is only intended or available for reception by a single housing estate. (13) In this Ordinance- (a) a reference to "telecommunications" includes "telecommunication"; (b) a reference to "Telecommunications" includes "Telecommunication". Cap 562 s 3 Approval of codes of practice by Broadcasting Authority PART II CODES OF PRACTICE AND GUIDELINES (1) Subject to subsection (8), for the purpose of providing practical guidance for licensees in respect of any requirements under this Ordinance imposed on licensees or in respect of licence conditions, the Broadcasting Authority may- (a) approve and issue such codes of practice (whether prepared by it or not) as in its opinion are suitable for that purpose; and (b) approve such codes of practice issued or proposed to be issued otherwise than by it as in its opinion are suitable for that purpose.(2) Where a code of practice is approved under subsection (1), the Broadcasting Authority shall, by notice in the Gazette- (a) identify the code concerned and specify the date on which its approval is to take effect; and (b) specify for which of the requirements under this Ordinance or licence conditions the code is so approved.(3) The Broadcasting Authority may- (a) from time to time revise the whole or any part of any code of practice prepared by it under this section; and (b) approve any revision or proposed revision of the whole or any part of any code of practice for the time being approved under this section,and the provisions of subsection (2) shall, with the necessary modifications, apply in relation to the approval of any revision under this subsection as they apply in relation to the approval of a code of practice under subsection (1). (4) The Broadcasting Authority may at any time withdraw its approval from any code of practice approved under this section. (5) Where under subsection (4) the Broadcasting Authority withdraws its approval from a code of practice approved under this section, it shall, by notice in the Gazette, identify the code concerned and specify the date on which its approval of it is to cease to have effect. (6) References in this Ordinance to a "Code of Practice" are references to that code as it has effect for the time being by virtue of any revision of the whole or any part of it approved under this section. (7) The power of the Broadcasting Authority under subsection (1)(b) to approve a code of practice issued or proposed to be issued otherwise than by it shall include power to approve a part of such a code and, accordingly, in this Ordinance "Code of Practice" may be read as including a part of such a code. (8) The Broadcasting Authority shall, before approving a code of practice under subsection (1) or any revision or proposed revision of the code under subsection (3), consult with- (a) such bodies representative of licensees to which the code or the code as so revised, as the case may be, will apply (whether in whole or in part); and (b) in so far as the code or the code as so revised, as the case may be, relates to the technical standards of a broadcasting service, the Telecommunications Authority,as it thinks fit. (9) For the avoidance of doubt, it is hereby declared that different codes of practice may be approved under subsection (1) for different classes of licensees, and may be so approved for the same or different requirements mentioned in that subsection or licence conditions. Cap 562 s 4 Guidelines (1) The Broadcasting Authority may from time to time cause to be prepared and published by notice in the Gazette, for the guidance of licensees or companies seeking to be licensees, guidelines not inconsistent with this Ordinance- (a) indicating the manner in which the Broadcasting Authority proposes to perform functions conferred by this Ordinance upon the Broadcasting Authority; (b) on such other matters relevant to this Ordinance as the Broadcasting Authority thinks fit.(2) Without prejudice to the generality of subsection (1), the Broadcasting Authority shall, as soon as is practicable, issue guidelines indicating the manner in which it proposes to- (a) perform its function under section 9(2), including the licensing criteria and other relevant matters it proposes to consider; (b) perform its function under section 10(2), including the licensing criteria and other relevant matters it proposes to consider; (c) perform its function in forming an opinion under section 13 or 14; (d) perform its function under section 18(2), including the criteria it proposes to consider.(3) The Broadcasting Authority shall, before issuing guidelines under subsection (2)(c), carry out such consultation with such bodies representative of licensees who may be affected by the guidelines as is reasonable in all the circumstances of the case. Cap 562 s 5 Offence of providing broadcasting service without licence PART III REGULATION OF BROADCASTING SERVICES (1) A person shall not provide a broadcasting service except under and in accordance with a licence. (2) A person who contravenes subsection (1) commits an offence and is liable- (a) on summary conviction, to a fine at level 6 and to imprisonment for 2 years; (b) on conviction on indictment, to a fine of $1000000 and to imprisonment for 5 years. Cap 562 s 6 Unauthorized decoders (1) A person shall not, in the course of trade or business, import, export, manufacture, sell, offer for sale or let for hire an unauthorized decoder. (1A) A person shall not, without lawful authority or reasonable excuse, for the purpose of, or in connection with, any trade or business, possess or use, or authorize another person to possess or use an unauthorized decoder. (Added 8 of 2004 s. 3) (2) A person who contravenes subsection (1) or (1A) commits an offence and is liable- (Amended 8 of 2004 s. 3) (a) on summary conviction, to a fine at level 6 and to imprisonment for 2 years; (b) on conviction on indictment, to a fine of $1000000 and to imprisonment for 5 years.(3) Where it is proved that a person has- (a) in the course of trade or business, imported, exported, manufactured, sold, offered for sale or let for hire an unauthorized decoder; or (b) for the purpose of, or in connection with, any trade or business, possessed or used, or authorized another person to possess or use an unauthorized decoder,then, unless there is evidence to the contrary, it shall be presumed that the person knew that the decoder was an unauthorized decoder. (Replaced 8 of 2004 s. 3) (4) For the purposes of this section, where a company, other body corporate or a partnership has done any act referred to in subsection (1) or (1A), any person who was a director of the company or body corporate, or a partner of the partnership at the time when the act was done shall, unless there is evidence to the contrary that he did not authorize the act to be done, be presumed also to have done the act. (Replaced 8 of 2004 s. 3) (5) In proceedings under this section, it is presumed that, unless there is evidence to the contrary, unauthorized decoders on premises are in the possession of the licensee, tenant, lessee, occupier, person in charge and owner of the premises. (Replaced 8 of 2004 s. 3) (6) Where an offence against subsection (1) or (1A) is committed by an employee in the course of his employment, the employer of such employee shall, without prejudice to the liability of any other person, also be guilty of that offence but shall not be liable to any term of imprisonment. (Replaced 8 of 2004 s. 3) (7) Where a prosecution is brought against the employer referred to in subsection (6) by virtue of this section in respect of an offence committed by his employee, it shall be a defence- (a) if the employer shows that he exercised such control over his employee as would ensure that his employee was not likely to act in contravention of subsection (1) or (1A); or (b) if the employer shows that he took all practicable steps to prevent the commission of the offence. (Replaced 8 of 2004 s. 3)(8) In proceedings for an offence under this section, it is a defence for the person charged to prove that he was acting in accordance with the instructions given to him by his employer in the course of his employment and he had no reasonable grounds to believe that the decoder was an unauthorized decoder. (Replaced 8 of 2004 s. 3) (9) Subsection (8) does not apply in the case of an employee who- (a) where the employer is a body corporate, is a director, manager, secretary or other similar officer of the body corporate or is a person purporting to act in any such capacity or, where the affairs of a body corporate are managed by its members, is a member with functions of management as if he were a director of the body corporate; (b) where the employer is a partnership, is concerned in the management of the partnership; (c) where the employer is a sole proprietorship, is concerned in the management of the proprietorship; or (d) in any other case, is concerned in the management of the employer's business. (Replaced 8 of 2004 s. 3) Cap 562 s 7 Offence of providing decoders and reception equipment for television programme service on subscription basis without licence (1) Subject to subsection (2), a person shall not, in the course of trade or business, import, export, manufacture, sell, offer for sale or let for hire any decoder for use by a Television Receive Only System to receive a broadcasting service which is not licensed on a subscription basis. (2) Subsection (1) shall not apply in relation to- (a) an encrypted broadcasting service which is licensed other than on a subscription basis; or (b) a decoder, or a decoder belonging to a class of decoders, which is not a decoder for the purposes of subsection (1) in accordance with the provisions of a notice under subsection (4).(3) A person who contravenes subsection (1) commits an offence and is liable- (a) on summary conviction, to a fine at level 6 and to imprisonment for 2 years; (b) on conviction on indictment, to a fine of $1000000 and to imprisonment for 5 years.(3A) Where it is proved that a person has in the course of trade or business, imported, exported, manufactured, sold, offered for sale or let for hire any decoder of the kind described in subsection (1), then, unless there is evidence to the contrary, it shall be presumed that the person knew that the decoder was a decoder of the kind described in subsection (1). (Added 8 of 2004 s. 4) (3B) For the purposes of this section, where a company, other body corporate or a partnership has done any act referred to in subsection (1), any person who was a director of the company or body corporate, or a partner of the partnership at the time when the act was done shall, unless there is evidence to the contrary that he did not authorize the act to be done, be presumed also to have done the act. (Added 8 of 2004 s. 4) (3C) In proceedings under this section, it is presumed that, unless there is evidence to the contrary, the decoder of the kind described in subsection (1) on premises is in the possession of the licensee, tenant, lessee, occupier, person in charge and owner of the premises. (Added 8 of 2004 s. 4) (3D) Where an offence against subsection (1) is committed by an employee in the course of his employment, the employer of such employee shall, without prejudice to the liability of any other person, also be guilty of that offence but shall not be liable to any term of imprisonment. (Added 8 of 2004 s. 4) (3E) Where a prosecution is brought against the employer referred to in subsection (3D) by virtue of this section in respect of an offence committed by his employee, it shall be a defence- (a) if the employer shows that he exercised such control over his employee as would ensure that his employee was not likely to act in contravention of subsection (1); or (b) if the employer shows that he took all practicable steps to prevent the commission of the offence. (Added 8 of 2004 s. 4)(3F) In proceedings for an offence under this section, it is a defence for the person charged to prove that he was acting in accordance with the instructions given to him by his employer in the course of his employment and he had no reasonable grounds to believe that the decoder was a decoder of the kind described in subsection (1). (Added 8 of 2004 s. 4) (3G) Subsection (3F) does not apply in the case of an employee who- (a) where the employer is a body corporate, is a director, manager, secretary or other similar officer of the body corporate or is a person purporting to act in any such capacity or, where the affairs of a body corporate are managed by its members, is a member with functions of management as if he were a director of the body corporate; (b) where the employer is a partnership, is concerned in the management of the partnership; (c) where the employer is a sole proprietorship, is concerned in the management of the proprietorship; or (d) in any other case, is concerned in the management of the employer's business. (Added 8 of 2004 s. 4)(4) The Telecommunications Authority may, by notice in the Gazette, declare a decoder, or a class of decoders, specified in the notice not to be a decoder, or a class of decoders, as the case may be, for the purposes of subsection (1). (5) In this section, "Television Receive Only System" (单一接收电视系统) means a system for receiving satellite television signals for use by a single specified premises and the received signals are not distributed to others. (6) For the avoidance of doubt, it is hereby declared that a notice under subsection (4) is subsidiary legislation. Cap 562 s 7A Provisions supplementary to sections 6 and 7 (1) Where the Telecommunications Authority or any public officer authorized in writing in that behalf by the Telecommunications Authority has reasonable grounds for believing that a person has committed or has attempted to commit an offence under section 6(1) or (1A) or 7(1), then he may— (a) require the person to produce for his inspection, at any place specified by him, any unauthorized decoder or decoder— (i) imported, exported, manufactured, sold, offered for sale or let for hire by the person in the course of trade or business; or (ii) possessed or used, or authorized to be possessed or used, for the purpose of, or in connection with, any trade or business;(b) arrest any person whom he reasonably suspects of being guilty of an offence under section 6(1) or (1A) or 7(1); (c) subject to subsection (3), enter and search any premises on which he reasonably believes that the person has committed or has attempted to commit an offence under section 6(1) or (1A) or 7(1), and require the production to him of any books or documents relating to any unauthorized decoder or decoder referred to in paragraph (a); (d) seize, remove and detain— (i) any unauthorized decoder or decoder referred to in paragraph (a); (ii) anything that appears to him to be or to be likely to be, or to contain, evidence of an offence under section 6(1) or (1A) or 7(1).(2) Where a public officer referred to in subsection (1) arrests a person under paragraph (b) of that subsection, the public officer shall, without delay, take him to a police station to be dealt with there in accordance with the Police Force Ordinance (Cap 232) or deliver him into the custody of a police officer for that purpose. (3) Domestic premises shall not be entered or searched under subsection (1)(c) except pursuant to a warrant issued under subsection (4). (4) Where a magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is anything liable to seizure under subsection (1)(d) in any domestic premises possessed or used by a person whom he has reasonable grounds for believing has committed or has attempted to commit an offence under section 6(1) or (1A) or 7(1), then he may issue a warrant authorizing the Telecommunications Authority or any other public officer to enter and search the premises. (5) The Telecommunications Authority or any public officer authorized in writing in that behalf, in the exercise of the powers under subsection (1) or pursuant to a warrant issued under subsection (4), may— (a) break open any outer or inner door of any place that he is empowered or authorized to enter and search; (b) remove by force any person or thing obstructing him or resisting any arrest, detention, search, inspection, seizure or removal that he is empowered to make or carry out; (c) detain any person found in any place that he is empowered or authorized to search until such place has been searched.(6) A magistrate or court may, upon application by or on behalf of the Telecommunications Authority or by any public officer authorized in writing in that behalf by the Telecommunications Authority, order that any unauthorized decoder or decoder in respect of which there has been a contravention or attempted contravention of section 6(1) or (1A) or 7(1) shall be forfeited to the Government, whether or not proceedings have been taken against any person in respect of the contravention or attempted contravention. (7) Any person who wilfully obstructs the Telecommunications Authority or any public officer authorized in writing in that behalf by the Telecommunications Authority in the exercise of any power conferred upon him under this section shall be guilty of an offence and shall be liable on summary conviction to a fine at level 4 and to imprisonment for 6 months. (Added 8 of 2004 s. 5) Cap 562 s 7B Civil remedy (1) A licensee sustaining loss or damage from a breach of section 6(1) or (1A) may bring an action for damages, an injunction or other appropriate remedy, order or relief against the person who is in breach. (2) A licensee may bring an action under subsection (1) even though the person against whom the action is brought has not been charged with or convicted of an offence by reason of a contravention of section 6(1) or (1A). (3) A licensee may bring an action for damages, an injunction or other appropriate remedy, order or relief against any person who possesses or uses, or authorizes another person to possess or use an unauthorized decoder to view any television programme service which is intended or available for reception by the public, on payment, whether periodically or otherwise, of a subscription in Hong Kong. (Added 8 of 2004 s. 5) Cap 562 s 8 To whom licence may be granted PART IV LICENCES-GENERAL PROVISIONS (1) The Chief Executive in Council may in accordance with this Ordinance grant a licence to provide a domestic free television programme service or domestic pay television programme service on application made to him in the specified form by a company. (2) The Broadcasting Authority may in accordance with this Ordinance grant a licence to provide a non-domestic television programme service or an other licensable television programme service on application made to it in the specified form by a company. (3) Subject to subsection (4), a domestic free television programme service licence shall not be granted to a company which is a subsidiary of a corporation. (4) Without prejudice to the operation of Schedules 1, 4, 5, 6 and 7, unless otherwise provided in this Ordinance, a licence shall not be granted to and held by a company unless- (a) in the case of a domestic free television programme service licence or domestic pay television programme service licence- (i) the company complies with paragraph (b) of the definition of "ordinarily resident in Hong Kong" in section 2(1); (ii) the majority of the directors required under subparagraph (iv) actively participate in the direction of the company; (iii) a quorum of every meeting of the directors of the company has a majority of directors who is each for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of "ordinarily resident in Hong Kong" in section 2(1) and has been so resident for at least one continuous period of not less than 7 years; (iv) except with the prior approval in writing of the Broadcasting Authority, the majority of the directors of the company and the majority of the principal officers of the company, including the principal officer of the company in charge of the selection, production or scheduling of television programmes, is each an individual who is for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of "ordinarily resident in Hong Kong" in section 2(1) and has been so resident for at least one continuous period of not less than 7 years; and (v) no disqualified person, other than a person whose disqualification is disclosed in the application for the licence, exercises control in the company;(b) in the case of a non-domestic television programme service licence or an other licensable television programme service licence, not less than one director or principal officer of the company is an individual who is for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of "ordinarily resident in Hong Kong" in section 2(1) and has been so resident for at least one continuous period of not less than 7 years; and (c) in the case of any licence, the company is empowered under its memorandum and articles of association to comply fully with the provisions of this Ordinance and its licence conditions (whether actual or proposed). Cap 562 s 9 Recommendations by the Broadcasting Authority on applications for licences (1) An application for the purposes of section 8(1) or (2) shall be submitted to the Broadcasting Authority in the specified form. (2) The Broadcasting Authority shall consider applications for a domestic free television programme service licence or a domestic pay television programme service licence and make recommendations thereon to the Chief Executive in Council. (3) Where an application is submitted to the Broadcasting Authority, it shall- (a) cause a notice to be published in the Gazette as soon as is practicable- (i) stating the name of the applicant and the type of licence sought by the applicant together with such other particulars as the Broadcasting Authority thinks fit; and (ii) stating that members of the public who are interested may make representations on the application to the Broadcasting Authority by a date specified in the notice, being a date not less than 21 days after the notice is published; and(b) consider the representations, if any, received by the date. Cap 562 s 10 Grant of licence (1) The Chief Executive in Council may, after considering recommendations made pursuant to section 9(2), grant a licence under section 8(1) subject to such conditions as he thinks fit specified in the licence. (2) Subject to subsection (3), the Broadcasting Authority may grant a licence under section 8(2) subject to such conditions as it thinks fit specified in the licence. (3) The Chief Executive in Council, in the case of licences, or a class of licences, that may be granted under section 8(1) and the Broadcasting Authority, in the case of licences, or a class of licences, that may be granted under section 8(2), may by notice in writing specify conditions to which the licences shall be subject. (4) The Chief Executive in Council or the Broadcasting Authority, as the case may require, may, where he or it considers it is in the public interest to do so, vary a licence at any time during its period of validity after the licensee has been given a reasonable opportunity to make representations under subsection (5). (5) A licensee may make representations to the Broadcasting Authority in relation to any proposed variation under subsection (4) and, in the case of a licence granted by the Chief Executive in Council, the Broadcasting Authority shall fairly reflect the representations to the Chief Executive in Council. (6) The Chief Executive in Council or the Broadcasting Authority, as the case may require, shall consider the representations, if any, made under subsection (5) before implementing any proposed variation under subsection (4). (7) A licence or an interest in a licence shall not be transferred in whole or in part. Cap 562 s 11 Extension or renewal of licence (1) The Chief Executive in Council or the Broadcasting Authority, as the case may require, may, during the period of validity of a licence, extend or renew the licence, in accordance with the provisions of this Ordinance, to take effect upon expiry of the validity of the licence. (2) A licensee shall submit to the Broadcasting Authority an application in the specified form- (a) for the extension or renewal of its licence; and (b) not less than 24 months, or such shorter period as the Broadcasting Authority may specify in a particular case, before the date on which the period of validity of the licence expires.(3) The Broadcasting Authority shall, in respect of a domestic free television programme service licence or domestic pay television programme service licence, as soon as is practicable after the receipt of an application under subsection (2) and, in any case, not later than 12 months before the expiry of the period of validity of the licence, submit recommendations to the Chief Executive in Council in relation to the extension or non-extension or renewal or non-renewal of the licence, and where appropriate, the conditions subject to which the licence may be extended or renewed. (4) Where subsection (3) applies to a domestic free television programme service licence, or a domestic pay television programme service licence, which may be extended or renewed for a period of 6 years or more, the Broadcasting Authority shall conduct a public hearing in accordance with procedures for the hearing determined by the Broadcasting Authority. (5) Where recommendations are made under subsection (3), the Chief Executive in Council shall consider them and as soon as is practicable- (a) extend or renew the licence to which they relate subject to such conditions as he thinks fit specified in the licence; or (b) decide not to extend or renew the licence.(6) In the case of a non-domestic television programme service licence or an other licensable television programme service licence, the Broadcasting Authority shall, at a time reasonable in all the circumstances of the case before the expiry of the licence- (a) extend or renew the licence subject to such conditions as it thinks fit specified in the licence; or (b) decide not to extend or renew the licence. Cap 562 s 12 Determination of whether television programme service primarily targets Hong Kong (1) A licensee (including a person seeking to be a licensee) shall, before providing a television programme service in or from Hong Kong, make an application in the specified form to the Broadcasting Authority for a determination on whether or not the service would, if provided, primarily target Hong Kong. (2) The Broadcasting Authority shall, as soon as is practicable after the receipt of an application under subsection (1), make a determination in writing that the Broadcasting Authority is of the opinion that the television programme service the subject of the application, if provided- (a) would primarily target Hong Kong; or (b) would not primarily target Hong Kong.(3) Where the Broadcasting Authority has made a determination under subsection (2), it shall as soon as is practicable after making the determination, serve a copy of the determination on the licensee (or person seeking to be a licensee) concerned together with a statement of its reasons in support of the determination. (4) Subject to subsection (5), where the Broadcasting Authority ceases to be of the opinion that gave rise to a determination under subsection (2) ("old determination"), then- (a) it shall make a further determination in writing ("new determination") that the Broadcasting Authority is of the opinion that the television programme service the subject of the old determination- (i) primarily targets Hong Kong; or (ii) does not primarily target Hong Kong;(b) it shall as soon as is practicable after making the new determination, serve a copy of the new determination on the licensee (or person seeking to be a licensee) concerned together with a statement of its reasons in support of the determination; (c) upon the date the licensee (or person seeking to be a licensee) is served with a copy of the new determination, the old determination shall thereupon be deemed to be repealed unless the new determination provides for the repeal of the old determination at a later date; and (d) this subsection shall, with all necessary modifications, apply to the new determination as it applies to the old determination should the Broadcasting Authority subsequently cease to be of the opinion that gave rise to the new determination.(5) The Broadcasting Authority shall, before making a determination under subsection (4)- (a) give the licensee concerned a reasonable opportunity to make representations to the Broadcasting Authority in relation to whether or not the television programme service concerned- (i) primarily targets Hong Kong; or (ii) does not primarily target Hong Kong; and(b) consider the representations, if any, made.(6) In determining whether or not a television programme service primarily targets Hong Kong, account shall be taken of, but not limited to, the following matters- (a) whether the service covers Hong Kong; (b) whether the sources of advertising and subscription revenues, where applicable, of the service are derived principally from Hong Kong; (c) the language of the service and the nature and size of the audiences targeted by the service; and (d) whether the service is actively marketed in Hong Kong by the licensee or by a third party on its behalf.(7) In this section, "television programme service" (电视节目服务) includes any part of a television programme service. Cap 562 s 13 Prohibition on anti-competitive conduct PART V REQUIREMENTS RELATING TO LICENSED SERVICES (1) Subject to subsections (4) and (5), a licensee shall not engage in conduct which, in the opinion of the Broadcasting Authority, has the purpose or effect of preventing, distorting or substantially restricting competition in a television programme service market. (2) The Broadcasting Authority may consider conduct to fall within subsection (1) as including, but not limited to- (a) direct or indirect agreements to fix the price in a television programme service market; (b) conduct preventing or restricting the supply of goods or services to competitors; (c) direct or indirect agreements between licensees to share any television programme service market between them on agreed geographic or customer lines; (d) limiting or controlling production, markets, technical development or investment; (e) applying dissimilar conditions to equivalent agreements with other trading parties, thereby placing them at a competitive disadvantage; (f) making the conclusion of agreements subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such agreements.(3) Subject to subsection (4), a provision in an agreement is void in so far as it provides for or permits, whether directly or indirectly, conduct which contravenes subsection (1). (4) The Broadcasting Authority may- (a) on an application made to it in the specified form by a licensee; (b) on a prescribed ground; and (c) by notice in writing served on the licensee,exempt conduct specified in the application from subsection (1) subject to such conditions as the Broadcasting Authority thinks fit specified in the notice. (5) Subsection (1) shall not apply to- (a) any restriction imposed on the inclusion in a television programme service of a television programme produced wholly or substantially by the licensee of the service; or (b) any prescribed restriction.(6) For the avoidance of doubt, it is hereby declared that nothing in this section shall prejudice the existence of any rights arising from the operation of the law relating to copyright or trademarks. Cap 562 s 14 Prohibition on abuse of dominance (1) A licensee in a dominant position in a television programme service market shall not abuse its position. (2) A licensee is in a dominant position when, in the opinion of the Broadcasting Authority, it is able to act without significant competitive restraint from its competitors and customers. (3) In considering whether a licensee is dominant, the Broadcasting Authority shall have regard to relevant matters including, but not limited to- (a) the market share of the licensee; (b) the licensee's power to make pricing and other decisions; (c) any barriers to entry to competitors into the relevant television programme service market; (d) such other relevant matters as may be stipulated in guidelines concerning the test of dominance issued under section 4 by the Broadcasting Authority in consultation with the licensees in the relevant television programme service market.(4) A licensee who is in a dominant position is deemed to have abused its position if, in the opinion of the Broadcasting Authority, the licensee has engaged in conduct which has the purpose or effect of preventing, distorting or substantially restricting competition in a television programme service market. (5) The Broadcasting Authority may consider conduct to fall within the conduct mentioned in subsection (4) as including, but not limited to- (a) predatory pricing; (b) price discrimination, except to the extent that the discrimination only makes reasonable allowance for differences in the costs or likely costs of supplying the service or other matter; (c) making the conclusion of agreements subject to acceptance by other parties of terms or conditions which are harsh or unrelated to the subject of the agreement; (d) discrimination in the supply of services to competitors. Cap 562 s 15 Provisions supplementary to sections 13 and 14 (1) The conduct of an associate of a licensee, or the position of the associate in a television programme service market, may be considered for the purposes of section 13 or 14. (2) A person sustaining loss or damage from a breach of section 13(1) or 14(1), or a breach of a licence condition, determination or direction relating to that section, may bring an action for damages, an injunction or other appropriate remedy, order or relief against the licensee who is in breach. (3) No action may be brought under subsection (2) more than 3 years after- (a) the commission of the breach concerned referred to in that subsection; or (b) the imposition under section 28 of a penalty in relation to the breach,whichever is the later. (4) For the avoidance of doubt, it is hereby declared that a breach of section 13(1) or 14(1) occurs when the Broadcasting Authority forms the opinion referred to in section 13(1) or 14(4) respectively. Cap 562 s 16 Notice to licensee to cease certain conduct The Broadcasting Authority may, by notice in writing served on a licensee- (a) require the licensee to cease and desist on and after a date specified in the notice from conduct specified in the notice as conduct which the Broadcasting Authority states in the notice that it is of the opinion that it contravenes section 13(1) or 14(1); (b) direct the licensee to take such steps as are specified in the notice, and within the period specified in the notice, as the Broadcasting Authority considers appropriate for the purpose of securing, or assisting the securing of, the licensee's compliance with that section. Cap 562 s 17 Separate accounting (1) Where a licensee holds a licence under the Telecommunications Ordinance (Cap 106), it shall adopt accounting practices which ensure that- (a) its activities in relation to its licence under this Ordinance can be readily understood without reference to its activities in relation to its licence under that Ordinance; and (b) its activities in relation to its licence under the Telecommunications Ordinance (Cap 106) can be readily understood without reference to its activities in relation to its licence under this Ordinance.(2) The Broadcasting Authority may, by notice in writing served on a licensee to which subsection (1) applies, direct the licensee to adopt an accounting practice- (a) specified in the direction; (b) for the purpose of securing, or assisting the securing of, compliance with that subsection; and (c) which is consistent with generally accepted accounting principles in Hong Kong. Cap 562 s 18 Service provision requirements (1) Subject to subsection (2), a licensee the licensed service of which is a domestic free television programme service or domestic pay television programme service shall, within such period as is specified in the licence or such other period as may be determined in writing by the Broadcasting Authority, provide the service in such manner as to enable the service to be received throughout Hong Kong to the satisfaction of the Broadcasting Authority or, in the case of a domestic pay television programme service, such parts of Hong Kong as are specified for the purposes in the licence. (2) The Broadcasting Authority may, by notice in writing served on a licensee, exempt the licensee from complying with subsection (1) in relation to any parts of Hong Kong specified in the notice and during any period specified in the notice. Cap 562 s 19 Television programmes for schools The Broadcasting Authority may, by notice in writing served on a domestic free television programme service licensee, require the licensee to include in its licensed service, without charge, any educational television programme for schools supplied by the Government. Cap 562 s 20 Television programme service locking device A licensee (except a domestic free television programme service licensee) shall provide a television programme service locking device to the satisfaction of the Broadcasting Authority where its licensed service is- (a) a domestic pay television programme service; (b) a non-domestic television programme service provided in Hong Kong where a subscription is required to be paid for the service provided in Hong Kong; or (c) an other licensable television service,but excluding such a service provided to hotel rooms. Cap 562 s 21 Restrictions on persons not regarded as fit and proper (1) A licensee and any person exercising control of the licensee shall be and remain a fit and proper person. (2) Subject to subsection (3), a licensee shall, on or before the 1st of April of each year, provide information in the specified form to the Broadcasting Authority to enable the Broadcasting Authority to establish and verify whether the licensee or a person exercising control of the licensee is a fit and proper person. (3) Subsection (2) shall not apply to a licensee which has been a licensee for less than 4 months. (4) In determining whether a licensee or person exercising control over the licensee is a fit and proper person, account shall be taken of- (a) the business record of the licensee or person; (b) the record of the licensee or person in situations requiring trust and candour; (c) the criminal record in Hong Kong of the licensee or person in respect of offences under the laws of Hong Kong involving bribery, false accounting, corruption or dishonesty; and (d) the criminal record in places outside Hong Kong of the licensee or person in respect of conduct which, if done in Hong Kong, would constitute or form part of the criminal record in Hong Kong of the licensee or person as mentioned in paragraph (c). Cap 562 s 22 Prevention of interference with programming independence of licensees (1) A licensee shall not, except in respect of material the supply of which it is contracting for its licensed service, agree to include or to refrain from including in its licensed service any material. (2) Any provision in an agreement which requires a licensee to include or to refrain from including in its licensed service any material, other than material to be supplied under the agreement, shall not be enforceable against the licensee. Cap 562 s 23 General requirements as to television programme services (1) A licensee shall be responsible at all times for ensuring that its licensed service does not include a subliminal message. (2) Subject to subsection (3), a licensee shall- (a) comply with its licence conditions; (b) comply with any requirements under this Ordinance which are applicable to it; (c) comply with any directions, orders, or determinations, under this Ordinance which are applicable to it; (d) comply with all provisions in a Code of Practice which are applicable to it; and (e) without prejudice to the operation of any Code of Practice which relates to this section, to any regulations under section 42(1)(e) or to the Broadcasting Authority's functions under section 9 of the Broadcasting Authority Ordinance (Cap 391), secure proper standards for its licensed service with regard to television programme content and technical performance.(3) Subsection (2) shall not apply in the case of material supplied by the Government. (4) For the avoidance of doubt, it is hereby declared that the fact that any material included or to be included in a licensee's licensed service is material exempted or approved for the purposes of exhibition or publication under the Film Censorship Ordinance (Cap 392) does not by itself relieve the licensee of any obligation under this Ordinance. (5) In this section- "standards" (标准), in relation to television programme content, includes restrictions on the time of day when content of a particular class may be provided; "subliminal message" (潜送讯息) means the transmission of material the duration of which is so brief that it does not enable a person to obtain a conscious picture of the material. Cap 562 s 24 Directions of Broadcasting Authority and Telecommunications Authority PART VI ENFORCEMENT OF LICENCES (1) The Broadcasting Authority may issue directions in writing to a licensee (except directions relating to technical standards) requiring it to take such action specified in the notice as the Broadcasting Authority considers necessary in order for the licensee to comply with any requirement under a prescribed Ordinance, any licence condition or any provision in a Code of Practice applicable to it. (2) The Telecommunications Authority may issue directions in writing to a licensee requiring it to take such action specified in the notice with regard to technical standards as the Telecommunications Authority considers necessary in order for the licensee to comply with any requirement under a prescribed Ordinance, any licence condition or any provision in a Code of Practice applicable to it. (3) The Broadcasting Authority shall cause directions under subsection (1) to be published in the Gazette or in such other manner as it thinks fit. Cap 562 s 25 Investigation of licensee's business (1) Where the Broadcasting Authority is satisfied that it is necessary for the proper performance of its functions under a prescribed Ordinance in order to ensure a licensee's compliance with a licence condition, a requirement under the Ordinance which is applicable to it, a direction, order, or determination, under the Ordinance which is applicable to it, or a provision in a Code of Practice which is applicable to it, it may authorize in writing any person to do all or any of the following at such times as are specified by it in the authorization- (a) require a licensee or a person whom such authorized person reasonably believes to be employed or engaged in connection with the relevant business of a person to whom this section applies to produce for examination any data, book, document or record which relates to such business and which is in the possession or under the control of the licensee or person, as the case may be; (b) examine and, if he thinks fit, to take copies of any data, book, document or record produced under paragraph (a) or any entry therein; (c) remove the data, book, document or record referred to in paragraph (a) or the copies referred to in paragraph (b) for examination by him and the Broadcasting Authority; and (d) require a licensee or a person whom such authorized person reasonably believes to be employed or engaged in connection with the relevant business of a person to which this section applies to give the authorized person and the Broadcasting Authority any explanation or further particulars as specified by the authorized person in respect of any data, book, document or record produced under paragraph (a).(2) Where any information or matter relevant to an investigation under this section is recorded otherwise than in a readily legible or comprehensible form, the powers conferred by subsection (1) to require the production of any data, book, document or record shall include power to require the production or reproduction of the data, book, document or record of a relevant part of it in a readily legible and comprehensible form. (3) A magistrate may, if satisfied by information on oath laid by the chairman or vice chairman of the Broadcasting Authority or by the principal executive officer within the meaning of the Broadcasting Authority Ordinance (Cap 391)- (a) that it is necessary for the proper performance of the functions of the Broadcasting Authority as referred to in subsection (1) that entry be obtained to any premises which the chairman, vice chairman or principal executive officer has reasonable grounds for believing is used or occupied by a person to whom this section applies for the purposes of keeping, storing or using any data, book, document or record which relates to the relevant business of the person to whom this section applies; and (b) that permission to enter such 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 premises, and such person- (i) may exercise therein the powers specified in subsection (1); and (ii) copy, seize, remove and detain any data, book, document or record therein or any copy thereof which the authorized person has reasonable grounds for believing will afford evidence likely to assist the Broadcasting Authority in the proper performance of its functions under this Ordinance.(4) A person who is an employee, director, principal officer or agent of a person to whom this section applies shall assist and shall not obstruct a person exercising a power under this section. (5) Any data, book, document or record removed under this section may be retained for any period not exceeding 6 months beginning on the day of its removal or, where the data, book, document or record 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 any data, book, document or record under this section, he shall, as soon as is practicable, give a receipt for it, and he shall permit any person who would be entitled to inspect it but for its removal to inspect the same 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 Broadcasting Authority may impose. (7) Every person exercising any power under subsection (1) or (3) shall be furnished with a copy of his authorization and shall, upon request, produce for inspection, evidence of his identity and of his authorization. (8) The powers conferred by subsections (1)(a) or (b) and (3) include a power- (a) to require the person mentioned in subsection (1)(a) to extract or retrieve, or cause to be extracted or
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