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立法會
Legislative Council
LC Paper No. CB(1)1984/04-05
Ref. CB1/PL/ITB
Panel on Information Technology and Broadcasting
Meeting on 11 July 2005
Background brief on
issues related to domestic/private pirated viewing of
subscription television programmes
Purpose
1.
This paper summarizes Members’ consideration of measures to deal
with domestic or private viewing of subscription television programmes through
the use of illicit decoders without payment of subscription fees.
Background
2.
The major source of income for subscription television operators is the
fees paid by subscribers. However, the unauthorized access to such services by
means of illicit decoders to avoid subscription payment has affected not only the
revenue and economic viability of the operators but also Hong Kong’s status as a
regional broadcasting hub. The easy availability of such illicit decoders and the
lack of legislative sanction against unauthorized reception of subscription
television programme services were regarded as the main causes for the problem.
3.
Having regard to the findings of a consultation exercise conducted in
late 2001and with a view to addressing the problem, the Administration proposed
to provide for both civil remedy and criminal sanction against the possession or
use of unauthorized decoders for commercial purposes; and to introduce civil
remedy only against any person who possessed or used an unauthorized decoder
to view television programmes without payment of subscription fees. To this
end, the Broadcasting (Amendment) Bill 2003 (the Bill) was introduced into the
Council on 14 May 2003 and a Bills Committee was subsequently formed to
study the Bill. The Bill was passed on 5 May 2004 and came into operation on
7 July 2004.
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Major areas of concern
4.
In the course of scrutiny, members of the Bills Committee expressed
support for the proposed introduction of both criminal sanction and civil liability
for the possession or use of unauthorized decoders for business or commercial
purposes. However, members noted the divergent views of the Administration
and the television industry on the contentious issue of whether criminal sanction
should also be extended to domestic or private pirated viewing of pay television
programmes through the use or possession of unauthorized decoders.
Technical solution to the problem
5.
According to the Administration, the problem of pirated viewing of pay
television programmes in Hong Kong had largely stemmed from Hong Kong
Cable Television Limited (HKCTV)’s analogue transmission, which was
vulnerable to access by illicit decoders. Considering the advent in technology
and operators’ responsibility in deploying reliable technology to safeguard their
services, such as by changing the encryption digital key periodically, the
Administration had encouraged and mandated HKCTV to complete digitization
of its transmission by May 2005. If private pirated viewing remained rampant
after completion of digitization by HKCTV, the Administration was prepared to
consider criminal sanction against domestic end-users.
6.
HKCTV however disagreed that technology alone could curb the
problem and advised the Bills Committee that no security system could prove to
be risk-free as the digital encryption systems of some overseas broadcasters had
been hacked into soon after their deployment. It also highlighted the endless
cycle of attacks and counter-attacks as manufacturers of illicit devices sought to
upgrade their technology to circumvent security safeguards.
Options of criminal punishment
7.
One of the major concerns about criminal sanction against domestic or
private pirated viewing of pay television programmes though the use of
unauthorized decoders was the enforcement difficulties arising from the need to
enter domestic premises to collect evidence and the possible intrusion into
privacy. In examining a joint proposal of six local free and pay television
services licensees to make domestic pirated viewing a summary offence
punishable by a fixed penalty, members recognized that the lesser punishment of
a fixed penalty would not make enforcement easier or less intrusive because the
enforcement officer was still required to catch a person committing the offence
“red-handed” before he could issue him a fixed penalty notice. The
fundamental issue at stake remained whether domestic pirated viewing should be
made a criminal offence on top of incurring civil liability.
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Arguments for and against criminal sanctions
8.
In submitting views to the Bills Committee, HKCTV and other local
free and pay television services licensees urged that civil remedy alone as
proposed under the Bill could not effectively deter domestic or private pirated
viewing. In their view, the unauthorized reception of subscription television
programme services was analogous to abstraction of electricity or fraudulent use
of a public phone with intent to avoid payment and was by nature a
misdemeanour of theft or dishonest appropriation of property which should
attract criminal liability, irrespective of whether the act was committed for
commercial or personal purposes.
9.
In formulating its legislative proposal, the Administration had
considered the views collected during public consultation in 2001 which were not
indicative of majority support for imposing criminal liability on domestic
end-users. Having regard to the progress in HKCTV’s digitization project and
drawing reference to overseas policies and practice, the Administration had come
to the view that criminal sanction was only justifiable as the last resort if pirated
viewing was still rampant after completion of HKCTV’s service. The
Administration’s approach had the support of the Consumer Council and some
industry and professional associations.
Law enforcement
10.
Members shared the concern of some deputations including HKCTV
that the supply of unauthorized decoders was far more rampant that what had
been revealed in the enforcement statistics of the Administration, notably in areas
such as Apliu Street in Shamshuipo. Some members cast doubt on the efficacy
of the current enforcement actions targeted at the supply of unauthorized
decoders and illicit devices; and urged the Administration to step up enforcement,
particularly at points of sale.
11.
There was also a suggestion that the Administration should examine the
sentences imposed by the Court in respect of decoder-related offences and
consider taking appropriate action on lenient sentences so as to achieve greater
deterrence against offenders.
The way forward
12.
While most members of the Bills Committee agreed that for the time
being, it might not be desirable to criminalize domestic pirated viewing of pay
television programmes, they considered that the Administration should follow up
various concerns raised during scrutiny of the Bill. The full report of the Bills
Committee can be browsed at the following link :
http://www.legco.gov.hk/yr02-03/english/bc/bc11/reports/bc110505cb1-rpt-e.pdf.
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13.
As requested by the Bills Committee and undertaken by the Secretary
for Commerce, Industry and Technology during the Second Reading debate on
the Bill, the Administration would follow up members’ concerns as follows :
(a) to review the effectiveness or otherwise of digitization, the
implementation of the new statutory provisions and enforcement
actions 12 months after implementation of the amendment
ordinance;
(b) to report how the Administration would propose to deal with the
problem of private pirated viewing of pay television programme
services; and
(c) to examine the sentences imposed by the Court on decoder-related
offences and, without prejudice to judicial independence, evaluate
the appropriateness of taking follow-up action on the sentence
imposed in individual cases.
14.
The Administration will revert to the Panel on Information Technology
and Broadcasting on the proposed way forward at the meeting on 11 July 2005.
Council Business Division 1
Legislative Council Secretariat
5 July 2005
