Post-Soviet Media Law & Policy Newsletter

Issue 47     Benjamin N. Cardozo School of Law     June 15, 1998 

One Radio, Two Competing Interests:
The Problem of Radio Television Hong Kong

   Have you ever thought about what the Post-Soviet media would look like if they were undergoing a transition from capitalism to communism?  This is a very interesting question, and, so far, no definitive answers can be supplied, as such a transition has never happened before.  Nonetheless, the transition Hong Kong, a former British colony, has been undergoing since its return to China, one of the very few remaining Communist governments, may shed some light upon this interesting question.

    In July 1997, China resumed sovereignty over Hong Kong after a decade of international negotiation and more than a century of colonial rule.  Although Hong Kong’s autonomy, capitalist “way of life,” rule of law, and democratic freedoms are guaranteed unchanged for fifty years—by virtue of the concept of “One Country, Two Systems” and the Basic Law of the Hong Kong Special Administrative Region (“HKSAR”)1—tension arises when the Chinese system clashes with the existing British system.

    In the media context, such tension arises over the role of Radio Television Hong Kong (“RTHK”)—the only government-funded radio station in Hong Kong.  According to Xu Simin, a member of the Chinese People’s Political Consultative Conference National Committee, that station, because of its constant criticism of the Chinese government and the new HKSAR administration, is a “remnant of British rule.”2  The government should, therefore, take control of that station to stop it from undermining the government’s policies and alienating the citizenry from the new administration.  It was not surprising at all when these criticisms were uttered by a leftist hardliner who has been in China’s parliament since its inception in 1949.3  After all, state media in China are tightly controlled by the government and are regarded as a tool through which the government educates its people.  According to the new Director of the State Administration of Radio Film, and Television, “radio and television departments should continue to strengthen the propaganda work, maintain an accurate orientation for the mass media, ceaselessly upgrade the level of giving guidance through the media, and create a good atmosphere of comprehensively and deeply implementing the guidelines of the 15th National Party Congress.”4  Indeed, one of the director’s top priorities is “to study Deng Xiaoping Theory [and] the CPC Central Committee’s line, principles and policies.”5

    However, to the Hong Kong people, who are uncertain about the region’s future and worried about China’s failure to honor its promises, Xu’s criticisms are particularly troubling.6  In light of China’s history of repression, tightening the control of RTHK may signify the beginning of a slow erosion process of political freedoms and human rights.  These criticisms, therefore, not only “triggered fears . . . about the future of press freedom . . . in Hong Kong, but . . . also reminded . . . of the temptations of inviting mainland interference in Hong Kong affairs.”7

    Because of these two conflicting positions, the question of RTHK’s role poses one of the most sensitive questions for Hong Kong since the handover.  On April 1, 1998, that question was heatedly debated in the Provisional Legislative Council.8  Although RTHK is able to continue its editorial independence after that debate,9 this question may come up again in the near future, as long as the Chinese media policy conflicts with that of the existing British system.  Next time, the legislature may not come to the same conclusion as the current one, and RTHK may lose its editorial independence.

    To help examine the normative role of RTHK, two questions must be asked.  Should government-funded radio be a mouthpiece of the government?  If not, should it, at least, present the government’s policies in a positive light?  Perhaps the problems the Russian media experienced during the Post-Soviet era may provide some insight into the first question.  As Professor Foster explained, “public disinterest in the kinds of information government wants them to have is a very real limitation on the government.”10  If RTHK became a government mouthpiece, the audience who used to listen to the radio would desert the station.11  In addition, the information broadcast on the station would be dismissed by the public as propaganda, which is “ineffective and potentially destructive,”12 and the station would lose its credibility.  According to the Director of Broadcasting, making RTHK a government mouthpiece would “kill the influence of the station and waste public money.”13  It would also “breed[] rumors, cynicism, and distrust of government,”14 which the current administration hardly wants, especially in its infancy.  Thus, the policy of having RTHK as the government mouthpiece is out of the question.

    The next question to be asked then is, should government-funded radio, at least, present the government’s policies in a positive light?  According to the Chief Executive of HKSAR, “[w]hile freedom of speech is important, it is also important for government policies to be positively presented.”15  At the outset, it is important to understand that RTHK owes no obligation to the government despite receiving its funding.  RTHK deserves public funding because it is a public broadcaster.  Instead of seeking to maximize its revenue and minimize its profit, it serves the interest of the public.  Without public funding, the station would be influenced by the market and may not air issues that are of great public concern if those issues will not generate the desired revenue.  Indeed, it would “shy in its criticism of the government or of certain candidates for office, when the government policies or candidates’ positions favor the economic interests of the press.”16

    Unlike what some people have wrongly argued, a public broadcaster needs not be neutral and can have its own stand, as long as that stand is in the public interest and is not subservient to the interests of any particular political party, commercial organization, or individual.  Its duty to the public is satisfied when the programs are presented accurately, objectively, and fairly.  It has no extra duty to present government policies in a positive light.  In fact, if a public broadcaster, despite reaching an unfavorable conclusion after weighing sensibly and objectively the costs and benefits of the policy, attempts to present such policy in a positive light, it is breaching its duty to the public.

    Accuracy, objectivity, and fairness have never been a problem for RTHK.  A survey conducted by a group of academics based in Hong Kong shows that the public has consistently identified RTHK as the region’s fairest news source.17  In addition, it “has for years referred to editorial guidelines compiled by three foreign radio stations, including Britain’s BBC, Canada’s CBC and Australia’s ABC.”18  Even if such references are not enough to ensure that RTHK fulfills its obligation as a public broadcaster, a new set of editorial guidelines, to be modeled after those of the BBC, CBC, and ABC, will be compiled in six months.19  By the end of this year, the public will have a set of black-and-white rules by which to judge whether RTHK fulfills its obligation.

    However, the question of RTHK’s role is not as simple as that, for the pro-Beijing hardliners have never agreed that RTHK is a public broadcaster, at least in the Western sense.  To them, RTHK is just a government-run radio.  Therefore, in light of such a view, the question should be rephrased as whether RTHK should have editorial independence with regard to presentation of government policies.  And my answer to that question is a resounding “Yes.”  But how much independence?  Should we use the American standard where a public broadcaster is “entitled to . . . exercise ‘the widest journalistic freedom consistent with [its] public [duties]’”?20  According to the United States Supreme Court, the “expression of editorial opinion . . . lies at the heart of First Amendment protection”21 and should thus be “entitled to the most exacting degree of First Amendment protection.”22

    However, Hong Kong is not the United States.  A media policy that is suitable to Americans may not be suitable to the people of Hong Kong.  The American model, which is based on an “uninhibited, robust, and wide-open marketplace of ideas,”23 may not fit well within transitional societies.  As explained by Professor Foster, two preconditions, which are necessary to the American model, are missing in those societies.24  First, “a society must be committed to democratic procedures, or rather in the process of committing itself.”25  Second, “men [must] have learned to function within the law.”26  While the latter is satisfied, for the legal system has been in place in Hong Kong since its establishment in 1842, the former precondition has not been fully realized.  Because of Hong Kong’s colonial origin, its people have not had much political freedom until recently, as political reforms were hastily instituted to bolster the confidence of the Hong Kong people in the region’s future.  Before functional constituencies were instituted in 1985, most members of the Legislative Council were either government officials or Governor-appointees from the business and professional sectors.27  Indeed, many argue that “[t]he [post-handover] electoral laws have been re-written to ensure that in the forthcoming elections to the Legislative Council . . . the democrats do poorly.”28

    In addition, a study of Hong Kong’s colonial history reveals that it lacks a tradition of freedom of expression.  Professor Yash Ghai relates this portion of history well:

Indeed, even today, “there is still a considerable quantity of legislation which reflects colonial concerns with regulating or prohibiting various forms of expression which may threaten the imperial enterprise and interests.”30

    Moreover, the concept of freedom of expression in China is different from that in the Western world.  As Professor Foster pointed out in a recent article,31 “a grant of ‘freedom of the press’ [in China’s interpretation] is the grant of a privilege by the state, which the state can properly restrict or revoke when in conflict with state or societal interests.  It is not an intrinsic natural right or a limitation on state action as in the West.”32  Thus, the Hong Kong media, according to the Chinese foreign minister, “can put forward criticism, but not rumors or lies.  Nor can they put forward personal attacks on the Chinese leaders.”33

    If the American model is not satisfactory, what should the media policy in Hong Kong be during this transitional period?  Perhaps, the status quo is not such a bad idea after all.  It must be acknowledged that some legislators are pushing for more aggressive policies to safeguard freedom of expression.  In fact, an amendment on the corporatization of RTHK had been proposed and was subsequently rejected in the legislature.34  However, given the fact that sacrifice is necessary in the creation and development of a marketplace of ideas, a more aggressive approach may not necessarily be in the best interest of Hong Kong.  During this critical transition period, some sacrifices may be too large to make even if they will eventually benefit the community in the long run.  Because of the scope of this Essay, this point cannot be examined further and must be left open for other commentators.  Nonetheless, there are many reasons why RTHK should be free from government control.

    For the first time, the Hong Kong people are able to govern themselves.  Information about public policies—such as those concerning the avian flu crisis, the problem of illegal child immigrants, and the recovery from the snipers’ attack on the local currency—is, thus, much needed to make the citizenry as capable of making informed decisions and independent judgment as possible.  A radio station free of government control would allow “all facts and interests relevant to [such policies to be] fully and fairly presented . . . [so] that all the alternative lines of action can be wisely measured in relation to one another.”35  Since “the best test of truth is the power of the thought to get itself accepted in the competition of the market,”36 such a station would also provide a public forum where public issues can be vigorously debated, as well as an “uninhibited, robust, and wide-open marketplace” in which new ideas can be tested through the power of reason.

    In addition, because of Hong Kong’s colonial past, the political consciousness of its people is relatively low as compared to other democracies.  Encouragement to participate in the political process is badly needed.  Thus, instead of dictating how the station should present its policies, the government should encourage citizens to voice their concerns and grievances regarding those policies.  Indeed, feedback on the performance of the government and the effectiveness (or ineffectiveness) of its policies is crucial, especially when experimenting with new policies during this transitional period.  Such feedback would also provide checks against any abuse of power by public officials.37  As acknowledged by the Chief Executive of the HKSAR, “the news media has played a very important role in Hong Kong in monitoring the activities of the government.”38

    Furthermore, the remedy for any feared imbalance in the marketplace of ideas is more speech, not less speech.39  Since the handover, RTHK has given the Hong Kong government many opportunities to present its policies and explain its positions.  It has invited the Chief Executive and a number of government secretaries to speak in the Letter from Hong Kong program and has frequently invited government officials to speak in the Beacon-Fire program.40  In March, for instance, the Secretary for Education alone spoke in four RTHK programs to explain government policies.  According to the Director of Broadcasting, “RTHK has given the government too much time [to explain its position].”41  Unfortunately, “since they took office last July, the chief executive and his closest advisers . . . have generally been press-inept.”42  Unlike ex-Governor Chris Patten, who used the media effectively to press his positions, the new leaders failed to take advantage of the press.  As noted by one commentator, the remedy to the current problem is not that the government should control the media, but that the new leaders “should hone their media skills to sell their side of the story more persuasively.”43

    Given today’s information technology and the trend of media globalization, there are many alternative channels through which people can express their ideas.  Tightening the control of government-funded radio would only increase the people’s distrust of the government.  Indeed, such a move is more harmful than helpful, for the radio station acts as a “‘safety valve’ for the release or ‘domestication’ of societal discontent and frustration.”44  During the transitional period, discontent and frustration are bound to arise, as a result of people’s inability to adapt to the new system and other unexpected problems originating from the unprecedented concept of “One Country, Two Systems.”  “Suppression of potentially ‘harmful’ information [is thus] more dangerous than its expression.”45  Indeed, media freedom “provides a framework in which the conflict necessary to the progress of a society can take place without destroying the society.”46  According to Professor Emerson, “[i]t is an essential mechanism for maintaining the balance between stability and change.”47

    Moreover, curtailing editorial freedom “would send a sombre message to the community and to the outside world.”48  It would send a message that the new administration “fears that its actions could not stand up to independent scrutiny.”49  This is not the case in Hong Kong.  So far, the administration “has shown a readiness to face criticism and to respond to attacks which is all to its credit.”50  Hong Kong should, thus, not be confused with those regions where debate of the government’s actions is kept out of the public domain.

    In conclusion, media freedom is critical to Hong Kong during this transitional period where people are learning to govern themselves and adjust to new policies.  Information, trust, and stability are what the new government needs, and tightening control over RTHK will not satisfy those needs.  Recently, a consortium, led by National People’s Congress delegate Wong Poyan, bought half of the shares of Asia Television,51 one of only two terrestrial television companies in Hong Kong.  Whether this is an attempt by the Chinese government to influence public opinion, or to set up what Professor Price terms a “market for loyalties,”52 is still, at the moment, an answerable question.  Nonetheless, if we adopt a positive perspective—as the government wants us to adopt when looking at its policies—such a move does not imply any change in media policy in Hong Kong, for President Jiang Zemin has recently reiterated his commitment to the political concept of “One Country, Two Systems.”53

Peter K. Yu*


* The author would like to thank Professors Marci Hamilton, Monroe Price; Orlee Goldfeld, and Melissa Mathis, for their helpful comments on earlier drafts of this Essay.
1. The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (1990).
2. Joanna Slater, Hong Kong: Listen, It’s Our Radio: Furore over Broadcaster Tests Beijing’s Hands-off Policy, Far Eastern Economic Review, Mar. 19, 1998, at 23.
3. See id.
4. New Radio-TV Chief Outlines Structural Changes, Renmin Ribao, Apr. 20, 1998.
5. Radio-TV Chief Tian Congming Interviewed, Central People’s Broadcasting Station, Apr. 22, 1998, available in Lexis, News library, BBCSWB file.
6. This criticism is nothing new.  The role of RTHK had been criticized for quite a number of years before the handover.  It started after RTHK failed to recast itself to resemble Britain’s state-funded British Broadcasting Corporation.  See Slater, supra note 2.  However, given the place and timing where Xu made his remarks, i.e., during the Chinese People’s Political Consultative Conference held in Beijing, these remarks stirred up the Hong Kong people’s concern for media freedom considerably.  In a recent survey conducted by the Citizens’ Party, more than sixty percent of respondents worried that rights and liberties are being eroded.  Sixty-four percent of those questioned believed RTHK’s editorial independence was under threat.  See Hong Kong Poll: Concern at Erosion of Media Freedom, RTHK Radio 3, Apr. 26, 1998, available in Lexis, News library, BBCSWB file.
7. Martin Lee, Letter to Hong Kong, RTHK Radio 3, Mar. 15, 1998, available in Lexis, News Library, BBCSWB file.
8. See Editorial, RTHK Can Be Independent, but Its Role Still Conflicts, Ming Pao, Apr. 2, 1998.
9. See id.
10. Frances H. Foster, Information and the Problem of Democracy: The Russian Experience, 44 American Journal of Comparative Law 243, 290 (1996) [hereinafter Foster, Russian Experience].
11. See Chris Yeung, RTHK Boss Fears Mouthpiece Tag, South China Morning Post, Mar. 20, 1998, at 6.
12. Foster, Russian Experience, supra note 10, at 290.
13. Yeung, supra note 11.
14. Foster, Russian Experience, supra note 10, at 290.
15. Editorial, ‘Slowly, Slowly’ in Hong Kong, Washington Post, Mar. 16, 1998, at A20.
16. Owen M. Fiss, The Irony of Free Speech 52 (1996).
17. See Slater, supra note 2.
18. ‘Editorial Guidelines’ to Be Compiled in Six Months, Editorial Independence to Be Finally Safeguarded by Corporatization, Hsin Pao, Apr. 3, 1998 [hereinafter Editorial Guidelines].
19. Id.
20. See FCC v. League of Women Voters, 468 U.S. 364, 378 (1984) (citing CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981)).
21. Id. at 381.
22. Id. at 375-76.
23. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
24. See Frances H. Foster, Izvestiia as a Mirror of Russian Legal Reform: Press, Law, and Crisis in the Post-Soviet Era, 26 Vanderbilt Journal of Transnational Law 675, 743-44 (1993).
25. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale Law Journal 877, 884 (1963).
26. Id.
27. See Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law 234 (1997).
28. Muzzling Hong Kong’s Media, Foreign Report, Apr. 9, 1998, available in 1998 WL 7895290.
29. Yash Ghai, Freedom of Expression, Human Rights in Hong Kong 370 (Raymond Wacks, ed., 1992).
30. Id. at 369-70.
31. Frances H. Foster, The Illusory Promise: Freedom of the Press in Hong Kong, China, 73 Indiana Law Journal 765 (1998).
32. Id. at 795.
33. Kathy Chen et al., China Foreign Minister Issues Warnings, Wall Street Journal, Oct. 16, 1996, at A17.
34. An amendment on the corporatization of RTHK had been put forth by K. K. Fong, a Democratic Alliance legislator, and was rejected by the Provisional Legislative Council on April 1, 1998.  However, as predicted by the Director of Broadcasting, such an issue will be discussed again by the first post-handover Legislative Council, which was elected in May 1998.  See Editorial Guidelines, supra note 18.
35. Alexander Micklejohn, Free Speech and Its Relation to Self-Government 16 (1948).
36. Abrams v. United States, 250 U.S. 616, 630 (1919).
37. See Vincent Blasi, The Checking Value in First Amendment Theory, 1977 American Bar Foundation Research Journal 521.
38. Chief Executive’s Transcript, Mar. 7, 1998, available in Lexis, News library, BBCSWB file.
39. See First National Bank v. Bellotti, 435 U.S. 765, 790-91 (1978).
40. See Editorial Guidelines, supra note 18.
41. Id.
42. Editorial, Hong Kong Authorities Should Use, Not Control, Their Broadcaster, Asia Week, Mar. 13, 1998.
43. Id.
44. Foster, Russian Experience, supra note 10, at 287.
45. Id.
46. Thomas I. Emerson, The System of Freedom of Expression 7 (1970).
47. Id.
48. Public Service, South China Morning Post, Apr. 3, 1998.
49. Id.
50. Id.
51. 1.4 Bn-HK Dollar TV Deal to Be Finalized Today, Ping Kuo Jih Pao, Mar. 25, 1998.
52. Monroe E. Price, The Market for Loyalties: Electronic Media and the Global Competition for Allegiances, 104 Yale Law Journal 667 (1994).
53. Chinese President’s Views on Criticism of RTHK, RTHK Radio 3 web site, Mar. 9, 1998, available in Lexis, News Library, BBCSWB file.