Satirical remarks about the police made in an axed current affairs programme were rooted in verified facts, Hong Kong’s largest journalist group and the staff union of the city’s government-owned broadcaster have told the Court of Appeal.
Wednesday’s appeals hearing came more than three years after RTHK suspended the satirical programme Headliner, when the city’s communications regulator issued it a warning for “insulting” the police force on the show.
The Communications Authority (CA) issued its warning on the basis that Headliner sketches included material considered to be denigrating or insulting to persons or groups on the basis of characteristics such as ethnicity or social status. It also claimed the broadcaster failed to represent a broad range of views, and did not make reasonable efforts to ensure factual accuracy.
The Hong Kong Journalists Association (HKJA) and the RTHK Staff Union jointly launched a legal challenge against the CA warning in August 2020.
In a 2021 ruling, the High Court upheld the regulator’s decision that the material was denigrating or insulting to the police, but threw out the authority’s ruling that the show insufficiently presented a broad range of view points and that it had failed to make reasonable efforts to ensure accuracy.
The RTHK staff union, the HKJA, and the CA then sought to appeal the court’s ruling. In nine months, the Court of Appeal will rule on the city’s communications regulator’s decision to issue the warning.
Facts and implications
The episode of Headliner in question included a sketch showing a doctor saying that medical staff were not given sufficient personal protective equipment during the Covid-19 epidemic, while police officers had an excess of gear.
A second sketch, meanwhile, presented a man in a police uniform emerging from a rubbish bin saying he barely got any fresh air on duty since beat patrols were abolished.
Senior counsel Abraham Chan, representing the CA, and barrister Jeffrey Tam, representing the RTHK union and HKJA , appeared before High Court judge Jeremy Poon, Vice President of the Court of Appeal Susan Kwan, and Justice of Appeal Thomas Au on Wednesday.
Chan said RTHK had purported as “baseline fact” the idea that medics faced a shortage of surgical masks while the police were enjoying a surplus, but it had not fulfilled its obligation of taking reasonable steps to ensure accuracy.
Speaking in English, he added that the implications that could be drawn from that fact – such as the extent of the force’s surplus, and whether its supply of masks amounted to hoarding – were “qualitative judgements.”
In an earlier bid to provide proof, RTHK referred to a media report that cited a police document stating the force had been allocated the largest quantities of masks and protective gowns among all government departments. But the CA said that the broadcaster had failed to ensure the accuracy of its claims, as the information only became available on the day that the programme had aired.
Chan said the situation was portrayed in such a way that suggested the police were “worthy of denigration.” He added that viewers’ perception of the sketch was informed by the “twin tensions” of the 2019 protests and the pandemic, which had led to unprecedented levels of distrust and animosity towards the police.
Tam, representing the two journalist groups, maintained that there was no further need to prove the factual basis of the comments made in the Headliner sketches, and that satirical remarks suggesting that the police had hoarded masks and abolished beat patrols were exaggerations of verified facts.
He also told the court that RTHK had tried to invite the police — the target of the mockery — in order to present a broad range of views, and as such should not be found to be in breach of regulations.
In July, the CA proposed that programmes about national education, national identity, and the “correct understanding” of the national security law be exempt from an impartiality clause requiring “even-handedness” when opposing points of view are presented.
While RTHK describes itself as a public broadcaster, last November its new chief, Eddie Cheung, said that the outlet should cooperate seamlessly with the authorities. Cheung, who had no previous media experience, took over as director of broadcasting last October.
The broadcaster underwent a major revamp following the 2019 extradition bill protests and unrest. The government ordered a review of its administration following pressure from the pro-Beijing camp, which alleged it was biased against the authorities.
Several programmes, including Headliner and English-language current affairs programme The Pulse, were taken off air, as veteran hosts disappeared from the airwaves. Journalist Nabela Qoser – known for her tough questioning of officials – was among those whose employment was axed.
RTHK deleted older content from its website, disabled “reply” comments on its Twitter account, and refused to accept awards won by a documentary about the 2019 Yuen Long mob attacks. A producer of the documentary, Bao Choy, was convicted of making false statements to obtain vehicle licence records for the programme, and fined HK$6,000, although her conviction was later overturned by the city’s top court.
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