Academic journal article Washington International Law Journal

Hong Kong's Discriminatory Air Time: Family Viewing Hours and the Case of Cho Man Kit V. Broadcasting Authority

Academic journal article Washington International Law Journal

Hong Kong's Discriminatory Air Time: Family Viewing Hours and the Case of Cho Man Kit V. Broadcasting Authority

Article excerpt

I. INTRODUCTION

On December 13, 2008, thousands of parade-goers filled Hong Kong's downtown streets with the message to "celebrate love" and queer identity in the city's first-official gay pride parade.1 Amidst the crowd stood Gun Lu of Beijing, holding a sign protesting the censorship of movies and television shows that deal openly with homosexuality.2 His sign was one of many, and the topic has become increasingly common in Hong Kong. Rarely are non-heterosexuals displayed in the Chinese media, and when they are, "they are portrayed as effeminate, flamboyant, sissies, perverts, or AIDS carriers."3 The catalyst for much of this attention was the Broadcasting Authority's ("BA") recent attempt to regulate homosexual content on mainstream television. Hong Kong Connection-Gay Lovers was a television program that provided a view into the daily life of two homosexual couples. The BA issued a sharp warning to its producers for violating the television code of practice in giving a "pro-gay" view without a counterview, and for airing the program during family viewing hours.4 Such a ruling generated fervent debate in Hong Kong over the protections afforded homosexual couples and the role of the media in such a debate.5 It also became the genesis of a lawsuit that marks the first legal opinion on media censorship of homosexual content in Hong Kong.

In May 2008, the Hong Kong Court of First Instance6 issued Cho Man Kit v. Broadcasting Authority,7 an opinion that was, in many ways, a victory for gay rights. The suit was brought by Joseph Cho Man-kit, one of the homosexual participants of the show. The Court rejected the BA's ruling that Hong Kong Connection-Gay Lovers violated the broadcasting code on impartiality grounds.8 However, the Court upheld the BA's finding that the show belonged outside of "family viewing hours."9 The opinion provided a clear message that discrimination against homosexuality was unconstitutional, and provided activists, including Cho Man-Kit, with reassurance that the ruling could be used to "urge the government to enact anti-sexual discrimination laws as soon as possible."10 Nonetheless, this Comment argues that the Court erred in permitting the BA to censor homosexuality from family viewing hours. The Court misconstrued the BA Code of Practice ("BA Code") in a discriminatory manner in order to hypersexualize11 homosexuality. In addition, the Court failed to use the proper legal standard by which to analyze the family viewing hours restriction. Had the Court construed the code properly and applied the correct standard, it is likely that it would have reached a different result.

Part II of this Comment gives background on the legal status of Hong Kong's homosexuals in the context of the legislature and the judiciary. Part III explains the facts of Cho Man Kit and the Court's legal analysis. Part IV evaluates the Court's decision and assesses the legal standard used against relevant case law. Part V discusses the implications of the decision by analyzing both the Court's reluctance to intervene in family matters, as well as the likelihood of a chilling effect on press freedoms and the off-loading of homosexual content to non-regulated, non-mainstream forums.

II. BACKGROUND

Hong Kong's political and judicial history provides necessary context for understanding Cho Man Kit. While tongzhi12 in Hong Kong do not enjoy statutory protections against discrimination, tongzhi have successfully furthered their rights and protections through the courts. This section gives a brief history of Hong Kong's governmental structure and civil rights development. It then discusses legislative attempts to define and expand the civil rights of tongzhi. Lastly, this section discusses two important cases that extended equal protection under the law to tongzhi.

A. The Growth of Civil Liberties in the Hong Kong Special Administrative Region

On July 1, 1997, Hong Kong became the Hong Kong Special Administrative Region ("HKSAR") of the People's Republic of China ("PRC"). …

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