Chapter: | 562 | BROADCASTING ORDINANCE | Gazette Number | Version Date |
| | Long title | 48 of 2000 | 07/07/2000 |
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
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sections 13, 14, 16 and 17) 7 July 2000
}
Sections 13, 14, 16 and 17 L.N. 45 of 2001]
16 February 2001(Originally 48 of 2000) Section: | 1 | Short title | L.N. 45 of 2001 | 16/02/2001 |
PART I PRELIMINARY
(1) This Ordinance may be cited as the Broadcasting Ordinance. (2)-(3) (Omitted as spent) Section: | 2 | Interpretation | L.N. 107 of 2004 | 07/07/2004 |
- (1) In this Ordinance, unless the context otherwise requires"associate" (相聯者)-
- (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" (廣管局) means the Broadcasting Authority established under section 3 of the Broadcasting
Authority Ordinance (Cap 391); "broadcasting service" (廣播服務) 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" (司長) means the Chief Secretary for Administration; "Code of Practice" (業務守則) 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" (條件), 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" (法團) means a company or other body corporate;
"decoder" (解碼器) 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" (不符合持牌資格人士) means the same as it does in the definition of "disqualified person" in Part 1 of Schedule 1;
"domestic free television programme service" (本地免費電視節目服務) 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" (本地收費電視節目服務) 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" (支配優勢) 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" (職能) includes a power and a duty; "hotel room" (酒店房間) means accommodation within the meaning of section 2(1) of the Hotel Accommodation
Tax Ordinance (Cap 348); "influence" (影響、影響力) 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" (領牌服務) 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" (報刊) 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" (非本地電視節目服務) 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" (要約出售) includes invite to offer for sale; "ordinarily resident in Hong Kong" (通常居於香港)- - (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" (其他須領牌電視節目服務) 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" (履約保證), 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" (切實可行) means reasonably practicable; "prescribed Ordinance" (訂明條例) means- - (a) this Ordinance;
- (b) the Telecommunications Ordinance (Cap 106); or
(c) the Broadcasting Authority Ordinance (Cap 391); "principal officer" (主要人員) 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" (公眾地方) 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" (指明處所) means any domestic premises, or hotel room, in Hong Kong;
"subscription" (收看費) means a fee payable by or on behalf of any person for the right to view a television programme service in Hong Kong;
"subsidiary" (附屬公司) has the same meaning as in the Companies Ordinance (Cap 32);
"telecommunications" (電訊) means the same as it does in the definition of "telecommunications" in section 2(1) of
the Telecommunications Ordinance (Cap 106); "Telecommunications Authority" (電訊局長) means the Telecommunications Authority appointed under section 5 of the Telecommunications Ordinance (Cap 106);
"television programme" (電視節目) 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" (電視節目服務)- - (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" (鎖碼裝置) 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" (未經批准的解碼器) 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" (表決控制權) and "voting controller" (表決控權人) mean the same as they do in the definitions of "voting control" and "voting controller" respectively in Part 1 of Schedule 1; "voting share" (有表決權股份), 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".
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.
- (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.
PART III
REGULATION OF BROADCASTING SERVICES -