10 May 2008
Straits Times Online Forum

Self-censorship after the fines

Recently, MediaCorp TV Channel 5 was fined $15,000 for airing a show that depicted a gay couple and their baby in a way that 'promotes a gay lifestyle'. Prior to that, cable TV operator StarHub Cable Vision was fined $10,000 for broadcasting an advertisement featuring lesbian kissing.

Is it any wonder then that the latest season of Desperate Housewives has not been shown? It is in this season that a new couple moves into the fictional town of Wisteria Lane and it just so happens that the new arrivals consists of a pair of gay men in a committed relationship. So while Season 1 to 3 are all right, Season 4 is now not going to be shown because of this new character line-up.

Is it any wonder then that the ratings for Channel 5 has been dismal for the past few years?

Madison Chua

The head of programming at Channel 5, Kenneth Liang, himself admitted that turning around his station was an urgent priority. He told the Straits Times, "Ratings have been on a slow decline for a long time. We have lost relevance to our core audience who have been migrating to other distractions." [1] 

These two instances mentioned by Madison Chua of fines being imposed on broadcasters for whispering "gay" are not new. As far back as June 2003, the now-defunct MediaWorks TV was fined $15,000 by the Media Development Authority (MDA) for broadcasting an interview with actress Anne Heche on the afternoon of 16 March that year, in which she spoke about her lesbian relationship with comedienne Ellen DeGeneres. The MDA rapped MediaWorks for breaching the TV Programme Code, which disallows content that "promotes, justifies or glamorises" gay "lifestyles". 

In January 2007, a similar case came up in Hong Kong. The Broadcasting Authority there publicly sanctioned Radio Television Hong Kong (RTHK) for airing in July 2006 and October 2006 a documentary-style program looking at the day-to-day lives of two gay couples, the difficulties they encountered, their fears and aspirations. The program was called "Gay Lovers".

The regulator said RTHK violated its code of practice which required all non-fiction programs to be impartial. However, no fine was levied because RTHK was government-owned.

Cho Man Kit, who had appeared in the program, then sued for a judicial review. In a judgement [2] delivered 8 May 2008, Justice Michael J Hartmann found for the applicant (i.e. Cho), and struck down the Broadcasting Authority's sanction on RTHK. The second part of this essay will examine the reasoning behind the court's decision.

* * * * *

Hong Kong by night

 
The judge began with a brief exploration of freedom of expression. He cited for his guidance a pronouncement by the European Court of Human Rights in 1986, that said freedom of speech

… constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

The Broadcasting Authority, in its defence, argued that RTHK's program dealt with matters of some sensitivity, especially the issue of same-sex marriage, and it failed to meet the requirement of impartiality. The judge then honed in what the responsibility to "impartiality" should mean and whether "sensitivity" in this case may justify a heightened duty of care.

First, however, the court noted, after viewing the program, that it "did no more than faithfully record the fears, hopes, travails and aspirations of persons who happened to be gay" and the "issue of same-sex marriage was an incident in the programme... not in any way ‘promoted’ in the active and political sense that the word intends."

The Broadcasting Authority however, argued: "The fact that only the merits of homosexual marriage were raised in the programme rendered the presentation one-sided. The absence of different views on homosexual marriage had the effect of promoting the acceptance of homosexual marriage. In this respect, the presentation was not impartial."

The judge ruled that this was a misapprehension of the meaning of "impartial". The word should be used in the sense of "unprejudiced, unbiased, fair" and does not necessarily have to mean "counter-balanced".

Say, there is a program dealing with child slavery. Must a view in favour of child slavery be included?

"Impartiality, therefore, may demand no more than that the subject matter is dealt with fairly; that no prejudice is shown -- either for or against -- matters that are portrayed. Indeed, it may be said that such treatment is one of the hallmarks of documentary film-making," Justice Hartman pointed out.

Hunter-gatherers in a documentary may express the hope that forests would not be encroached upon; a daughter looking after her invalid mother at home may wish for more state assistance. "Such expressions, in any study of the human condition, are entirely organic to it," he said, before asking rhetorically whether such programs would also be penalised by the Broadcasting Authority for being partial. "The answer is plain enough." Ditto the expressions by the gay interviewees in the program that one day, same-sex marriage might be available to them.

"Any portrayal of the human condition will reflect some sympathy with the subject," the judge observed, but "such sympathy ... is not to be read as a form of active ‘promotion’ of any aspiration that arises in the course of the portrayal."

The Authority suggested that this case was different in that "homosexuality and the legalization of homosexual marriage were controversial issues which might be offensive... "

Hartman pointed out that whether the claim of offensiveness should be given weight must rest on how that sense of offensiveness came about. He recalled that in 2006, the Hong Kong Court of Appeal had cited with approval the following comments by Professor R Dworken in his work, Taking Rights Seriously :

Even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice (resting on the assumption that homosexuals are morally inferior creatures because they are effeminate), rationalisation (based on assumptions of fact so unsupported that they challenged the community’s own standards of rationality), and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion). It remains possible that the ordinary man could produce no reasons for his view, but would simply parrot his neighbour who in turn parrots him, or that he would produce a reason which presupposes a general moral position he could not sincerely or consistently claim to hold. If so, the principles of democracy we follow do not call for the enforcement of a consensus, for the belief that prejudices, personal aversions and rationalisations do not justify restricting another’s freedom, itself occupies a critical and fundamental position in our popular morality.

To stress: Prejudice, irrational and unexamined beliefs, however common, are not the kind of "public opinion" that a democracy which believes in fundamental freedoms, must yield to.

As you will recall, he had at the start read from the European Court of Human Rights, its reference to how freedom of speech includes such speech that disturbs or offends. The Authority, in interpreting its powers, must do so narrowly so as not to encroach unjustifiably upon this freedom. A discriminatory impulse is an unjustifiable one.

This sanction, the judge decided, was "a restriction founded materially on a discriminatory factor; namely, that homosexuality, as a form of sexual orientation, may be offensive to certain viewers."

Hence, the court found for the applicant. Justice Hartmann ruled that the Broadcasting Authority had acted unlawfully in interpreting "impartial" in the way they did. He thus quashed the Authority's decision and awarded costs to the applicant. 

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