TVB files writ against ‘advertising’ warning
Broadcaster says freedom of expression was intruded on with sanction over product placement
Sanctioning TVB for mentioning its services on its own programme was an unconstitutional intrusion on its freedom of expression, the broadcaster argued in a High Court writ filed on Monday.
Two episodes of Scoop aired by TVB’s Jade channel on April 16 and May 18 last year are said to have made references to myTV SUPER, then a paid-for over-the-top service offered by a TVB subsidiary.
Seven public complaints were filed to the Communications Authority, which later decided TVB had breached codes of practice by including an unjustified product placement and in-programme reference which mingled programming with advertising.
The station counter-argued that there was a lack of expressed guidance for the station on the issue, and suggested the authority’s findings had “failed to consider the broadcasting authority’s intention to create a more conducive business environment for the broadcasting industry”.
But that did not change the authority’s ultimate decision to sanction TVB by way of a warning on November 22 last year, which the station is now seeking to quash.
The judicial review against the authority’s decision is the second challenge mounted against it inside six months regarding indirect advertisements and product placements, following a similar lawsuit over eating fried chicken sponsored by advertisers in one show, the case for which has yet to have a date set for a hearing.
The authority in its TV Programme Code imposes restrictions on indirect advertising and limited undue prominence of any brand or person following an underlying rationale that viewers should not be confused as to whether they are watching a programme or a paid advertisement.
But the station argued in its 46-page application that the relevant provisions amounted to “an unconstitutional intrusion on the right to free expression” because broadcast communications and commercial speech are equally protected by the Basic Law and the Bill of Rights.
It demanded the authority demonstrate that the imposed restrictions imposed were prescribed by law and proportionate, arguing the authority was discriminatory when it handled foreign content differently.
TVB also claimed the authority erred in finding that the in-programme references to myTV SUPER were advertising material.
Such “heavy-handed restriction” on product placement and programme sponsorship, TVB said, went against the public’s interest when free-to-air broadcasters rely on advertising revenue to produce high quality local content.
TVB’s advertising revenue fell by 9 per cent in 2015 on a year-on-year basis, the writ said.
An authority spokesman reserved comment as the office had yet to receive the formal notice of the review.