The ‘no original voice’ policy prohibited TVB’s contractual artists’ original voice from being used in TV productions by other local or foreign TV stations.
As a result, when a TVB artist appeared in a TV show on another channel, all other artists on the show used their original voice, but the TVB artist’s voice is dubbed.
The ‘no promotion’ policy prohibited TVB’s contractual artists from appearing at the promotional activities of TV productions in which they starred but which are broadcast by other local TV stations.
On 29 January 2016, the Court of First Instance of Hong Kong ruled in favour of TVB and against the Communications Authority (the “CA”), in the ‘no Cantonese’ policy abuse of dominance case.
The 2013 decision by the CA, in which the broadcaster was fined nearly HKD 1 million under the sector-specific competition rules of the Broadcasting Ordinance (the “BO”) for a series of abusive practices in relation to artists’ management, is now set aside.
The case is likely to be of considerable importance for the future of competition law enforcement in Hong Kong.
While the decision was quashed under constitutional grounds (neither the Communications Authority nor the Chief Executive in Council were found to be an ‘independent and impartial tribunal’ for the purpose of the Bill of Rights Ordinance), the Court ruled that that the CA had used the correct ‘civil’ standard of proof to establish TVB’s violations of the law.
This effectively sets a relatively low bar for future competition cases in Hong Kong, in a way that will facilitate the task of the CA and the newly set-up Competition Commission in fighting anti-competitive practices.
Importantly, the court also validated most of the competitive analysis of the CA.Finally, the court provided useful information as to what type of remedies can be imposed to put an end to anti-competitive practices.Justice Godfrey Lam heard the case against the CA’s initial decision and wrote the judgment summarised below.He has recently been appointed as the first President of the Competition Tribunal, which further underlines the relevance of the TVB case for competition law enforcement in Hong Kong.Below we provide an overview of the fact and a brief analysis of how the case will affect competition law enforcement in Hong Kong.The 2013 case In September 2013, after four years of investigation, the CA found that TVB engaged in anti-competitive conduct in violation of Sections 13 and 14 of the BO (the “Decision”).