1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions govern the following in your jurisdiction: (a) Telecommunications; (b) Internet; (c) Media and (d) Social media?

(a) Telecommunications

Telecommunications in Hong Kong is primarily governed by the following legislation:

  • the Communications Authority Ordinance (Cap 616);
  • the Telecommunications Ordinance (Cap 106);
  • the Competition Ordinance (Cap 619);
  • the Trade Descriptions Ordinance (Cap 362); and
  • the Unsolicited Electronic Messages Ordinance (Cap 593) (UEMO).

(b) Internet

An internet service provider (ISP) will need a telecommunications licence to provide internet services in Hong Kong. Many of the responses for the internet sector are fully addressed in the information provided in this Q&A on the telecommunications sector.

Internet in Hong Kong is primarily governed by the following legislation:

  • the Communications Authority Ordinance (Cap 616);
  • the Telecommunications Ordinance (Cap 106);
  • the Trade Descriptions Ordinance (Cap 362); and
  • the Control of Obscene and Indecent Articles Ordinance (Cap 390).

(c) Media

For present purposes, we define 'media' as encompassing television broadcasting, sound broadcasting, print and film.

Media in Hong Kong is primarily governed by the following legislation:

  • the Communications Authority Ordinance (Cap 616);
  • the Broadcasting Ordinance (Cap 562);
  • the Broadcasting (Miscellaneous Provisions) Ordinance (Cap 391);
  • the Telecommunications Ordinance (Cap 106);
  • the Trade Descriptions Ordinance (Cap 362);
  • the Competition Ordinance (Cap 619);
  • the Registration of Local Newspapers Ordinance (Cap 268);
  • the Books Registration Ordinance (Cap 142);
  • the Film Censorship Ordinance (Cap 392); and
  • the Control of Obscene and Indecent Articles Ordinance (Cap 390).

(d) Social media

The most relevant legislative and regulatory provisions in respect of social media are the following:

  • the Personal Data (Privacy) Ordinance (Cap 486) (PDPO);
  • the UEMO (Cap 593); and
  • the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region ('National Security Law').

1.2 Which bodies are responsible for enforcing the applicable laws and regulations in the relevant sectors? What powers do they have?

(a) Telecommunications

The Communications Authority is the independent regulatory body responsible for enforcing, overseeing and regulating the telecommunications and broadcasting sectors.

The Communications Authority shares concurrent jurisdiction with the Customs and Excise Department to enforce the fair trading provisions of the Trade Descriptions Ordinance (Cap 362) in the telecommunications and broadcasting sectors.

The Communications Authority also shares concurrent jurisdiction with the Competition Commission to enforce the Competition Ordinance (Cap 619) for the telecommunications and broadcasting sectors.

The Communications Authority operates through its executive arm, called the Office of the Communications Authority (OFCA).

The Communications Authority's powers include the power to:

  • grant, renew, regulate and monitor telecommunications and broadcasting licences;
  • manage and administer the radio frequency spectrum and the telecommunications numbers;
  • develop technical standards and conduct equipment testing in line with international best practices; and
  • conduct examination and issuing certificates for the operating personnel of radiocommunications systems.

(b) Internet

The Communications Authority is the independent regulatory body responsible for enforcing, overseeing and regulating ISPs. Please refer to question 1.2(a) for more information.

(c) Media

Television and sound broadcasting: The Communications Authority is the independent regulatory body responsible for enforcing, overseeing and regulating the television and sound broadcasting sectors.

In addition to the powers listed in question 1.2(a), the Communications Authority is empowered to:

  • make recommendations to the chief executive in Council on applications for licences;
  • grant and renew television programme licences; and
  • conduct examinations and issue certificates for the operating personnel of radiocommunications systems.

Print: The Registrar of Newspapers is the governing body in respect of the Registration of Local Newspapers Ordinance (Cap 268).

The Office for Film, Newspaper and Article Administration (OFNAA) is responsible for registering local newspapers under the Registration of Local Newspapers Ordinance (Cap 268).

The secretary for culture, sports and tourism is the governing body in respect of the Books Registration Ordinance (Cap 142).

Film: The Film Censorship Authority is the governing body in respect of the Film Censorship Ordinance (Cap 392). The Film Censorship Authority's powers include:

  • considering films submitted and issuing certificates of exemption and approval before exhibition; and
  • assigning censors or advisers to a film.

OFNAA is responsible for enforcing its film classification system. Its powers include:

  • classifying films for public exhibition and publication, and granting exemptions from classification;
  • enforcing the age restriction for audience admission and other provisions under the Film Censorship Ordinance (Cap 392); and
  • gauging public opinions on film classification standards.

All: The Obscene Articles Tribunal is the governing body of the Control of Obscene and Indecent Articles Ordinance (Cap 390). It adjudicates "on the offensiveness of the articles voluntarily submitted to it by publishers and law enforcement agencies, or referred to it by magistracies in the course of proceedings".

OFNAA is responsible for controlling the publication of obscene and indecent articles by enforcing the Control of Obscene and Indecent Articles Ordinance (Cap 390). Its duties include:

  • regulating the publication and public display of obscene and indecent articles; and
  • taking enforcement and prosecution actions against violations of the Control of Obscene and Indecent Articles Ordinance (Cap 390).

(d) Social media

Office of the Privacy Commissioner for Personal Data (PCPD): The PCPD has the power to:

  • monitor and supervise compliance with the provisions of the PDPO;
  • promote and assist bodies representing data users to facilitate lawful and responsible use of personal data; and
  • carry out inspections, including inspections of any personal data systems used by data users which are departments of the Hong Kong government or statutory corporations.

The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region ('CPG Office on National Security'): The CPG Office on National Security is the state security agency. Established in July 2020, it is responsible for overseeing, guiding, coordinating with and providing support to the Hong Kong government to safeguard national security in accordance with the National Security Law.

National Security Department of the Hong Kong Police Force: Subject to the approval of the secretary for security, the commissioner of police may authorise a designated officer to exercise powers to disable or remove electronic messages if the commissioner has reasonable grounds to suspect that:

  • a person has published an electronic message on an electronic platform; and
  • the publication is likely to constitute an offence endangering national security or is likely to cause the occurrence of an offence endangering national security.

Communications Authority: The Communications Authority is the body responsible for enforcing the UEMO in respect of unsolicited electronic messages. Under the UEMO, the Communications Authority's powers include the power to:

  • approve codes of practice;
  • establish do-not-call registers;
  • impose financial penalties; and
  • issue enforcement notices.

1.3 What is the general approach of those bodies in regulating the relevant sectors?

(a) Telecommunications

According to OFCA, the Communications Authority "adopts a light-handed and pro-competition approach in the regulation of the telecommunications sector".

(b) Internet

Please see question 1.3(a)

(c) Media

The Communications Authority's general approach is set out in question 1.3(a).

OFNAA closely follows the standards of taste and decency accepted by the community and reflects them in its decision making to provide a regulatory framework for film censorship, publication monitoring and local newspaper registration.

(d) Social media

PCPD: The PCPD maintains the efficacy of the regulatory regime on personal data privacy, taking into account global standards for the protection of personal data privacy.

CPG Office on National Security: The CPG Office on National Security's general approach is reflected in Article 1 of the National Security Law and is, among other things, to safeguard national security.

Communications Authority: Please see question 1.3(a).

1.4 What other industry codes of conduct or best practices are applicable in the relevant sectors?

(a) Telecommunications

The Communications Authority issues codes of practice and guidelines in respect of telecommunications services. The guidelines of the Communications Authority are practical guidance and elaborations on provisions of legislation, and are not to be considered a complete or authoritative statement of the law or court practice.

(b) Internet

Please see question 1.4(a).

(c) Media

The Communications Authority may issue codes of practice and guidelines in respect of telecommunications services and television and sound broadcasting services. Key codes of practice and guidelines issued by the Communications Authority in relation to media include guidelines for programme standards, advertising standards and exemptions from service provision requirements.

Film: The Film Censorship Authority has issued the Film Censorship Guidelines for Censors to explain how censors exercise their functions under the Film Censorship Ordinance (Cap 392).

Print: OFNAA provides helpful guidance and elaborations in respect of the Registration of Local Newspapers Ordinance (Cap 268), the film classification system under the Film Censorship Ordinance (Cap 392) and enforcement of the Control of Obscene and Indecent Articles Ordinance (Cap 390) on its website and through published guides.

(d) Social media

PCPD: The PCPD may issue codes of practice, guidelines and guidance notes in respect of the PDPO and other relevant data privacy regulations in Hong Kong. Non-compliance with a code of practice can be used as proof of contravention of relevant requirements under the PDPO.

Communications Authority: The Communications Authority have issued codes of practice and guidelines for the purpose of providing practical guidance in respect of the application or operation of any provision of the UEMO.

2 Ownership

2.1 Who is eligible to provide services in the following sectors in your jurisdiction? Are there any restrictions on foreign ownership? Do any domicile requirements apply? What other requirements or restrictions apply in this regard: (a) Telecommunications; (b) Internet; (c) Media and (d) Social media?

(a) Telecommunications

Telecommunications services in Hong Kong are fully liberalised and are all provided by the private sector. There are no restrictions on foreign ownership of a telecommunications licence in Hong Kong. The only mandatory requirement is that a licence applicant be a company registered under the Companies Ordinance (Cap 622) in Hong Kong.

A company that wishes to apply for a telecommunications licence must apply to the Communications Authority for assessment. The Communications Authority will assess any telecommunications licence application based on various criteria, including:

  • whether the applicant and all persons exercising control of the applicant are fit and proper persons;
  • the scope of the proposed services;
  • the company structure;
  • the applicant's financial soundness;
  • the applicant's technical expertise; and
  • previous relevant experience.

(b) Internet

Please see question 2.1(a).

(c) Media

Sound broadcasting: Under the Telecommunications Ordinance (Cap 106), an applicant may apply for a sound broadcasting licence if:

  • it is a registered company in Hong Kong;
  • it is empowered under its articles of association to comply fully with the Telecommunications Ordinance (Cap 106) and the terms and conditions of its licence allow it to apply for a sound broadcasting licence;
  • the frequency in the radio spectrum that the applicant proposes to use is available as at the date of the application; and
  • that frequency is suitable for use in providing the proposed broadcasting service.

Certain restrictions are imposed on 'unqualified persons' and 'disqualified persons' in terms of holding a sound broadcasting licence.

An 'unqualified person' is a person:

  • who is not for the time being ordinarily resident in Hong Kong and who has at any time been resident for a continuous period of not less than seven years; or
  • that is not a company which is ordinarily resident in Hong Kong.

A 'disqualified person' can be:

  • a licensee under the Telecommunications Ordinance (Cap 106);
  • a person holding a domestic free television programme service licence or a domestic pay television programme service licence under the Broadcasting Ordinance (Cap 562), or an associate of such; and
  • a person that exercises control of a corporation that is a person referred to above.

'Unqualified persons' cannot hold, directly or indirectly, any right, title or interest in more than 49% of the total number of voting shares in the licensee.

'Disqualified persons' cannot exercise control of a corporation that is a licensee, except in exceptional circumstances granted by the governor in council.

There are also temporary restrictions on any disposal or acquisition of voting shares of a licensee without the prior consent of the Communications Authority.

Television broadcasting: Television broadcasting under the Broadcasting Ordinance (Cap 562) is divided into four types of services:

  • domestic free television programme services (DFT);
  • domestic pay television programme services (DPT);
  • non-domestic television programme services (NDT); and
  • other licensable television programme services (OT).

To apply for a DFT or DPT licence, the company applicant must:

  • be ordinarily resident in Hong Kong;
  • have a majority of its directors actively participate in the direction of the company;
  • have a quorum for every meeting of the directors of the company;
  • ensure that the majority of the directors of the company and the majority of the principal officers of the company are individuals, each of whom is for the time being ordinarily resident in Hong Kong and has been so resident for at least one continuous period of not less than seven years;
  • have no 'disqualified person', other than a person whose disqualification is disclosed;
  • be empowered under its articles of association to comply with the Broadcasting Ordinance (Cap 562) and its licence conditions; and
  • be registered under the Companies Ordinance (Cap 622).

A 'disqualified person' under the Broadcasting Ordinance (Cap 562) means:

  • a licensee in the same category of licence;
  • a licensee in a different category of licence;
  • a person that exercises control over a licensee mentioned above; or
  • an associate of a person that is a disqualified person as defined above.

A licensee is prohibited from exercising control over a disqualified person unless approval is given by the chief executive in Council.

To apply for an NDT or OT, the company applicant must:

  • have not less than one director or principal officer of the company who is an individual who is for the time being ordinarily resident in Hong Kong and has been so resident for at least one continuous period of not less than seven years;
  • be empowered under its articles of association to comply with the Broadcasting Ordinance (Cap 562) and its licence conditions; and
  • be a company formed and registered under the Companies Ordinance (Cap 622) or under the former Companies Ordinance.

Print and film: There are no ownership restrictions or requirements for newspapers, books or films in Hong Kong.

(d) Social media: The provision of social media in Hong Kong is fully liberalised. There are no restrictions or requirements on foreign ownership for providing social media services in Hong Kong.

3 Authorisations/licences

3.1 What authorisations and/or licences are required to operate in the following sectors? Do any exemptions apply? Do these vary depending on the service to be provided: (a) Telecommunications; (b) Internet; (c) Media and Social media?

(a) Telecommunications

The basic licensing requirement is that no person in Hong Kong can do any of the following without a licence:

  • establish or maintain any means of telecommunications;
  • offer in the course of business a telecommunications service;
  • possess or use any apparatus for radiocommunications or any apparatus of any kind that generates and emits radio waves;
  • deal in the course of trade or business in apparatus or material for radiocommunications or in any component part of any such apparatus or in apparatus of any kind that generates and emits radio waves; or
  • demonstrate, with a view to sale in the course of trade or business, any apparatus or material for radiocommunications.

The Communications Authority is the competent authority with the power to issue telecommunication licences, including:

  • carrier licences, including the unified carrier licence and space station carrier licence;
  • localised wireless broadband service licences;
  • wireless internet of things licences;
  • public radiocommunications service licences, including licences for public radio paging service operators, trunked mobile radio service operators, and railway signalling service operators;
  • services-based operator licences;
  • class licences; and
  • other specific licences.

There are certain limited exemptions where a person that establishes or maintains a means of telecommunications does not need a telecommunications licence under the Telecommunications Ordinance (Cap 106). An example of a specific exemption would be in relation to a radiocommunications transmitting apparatus that is in air transit cargo or air transhipment cargo.

(b) Internet

Please see question 3.1(a).

(c) Media

Sound broadcasting: The basic licensing requirement is that no person can establish or maintain a broadcasting service without a licence. Under the Telecommunications Ordinance (Cap 106), 'broadcasting' is defined as transmitting sound (otherwise than as part of a television broadcast) for general reception by means of radio waves.

The chief executive in Council is the competent authority with power to issue sound broadcasting licenses.

There are no exemptions in respect of obtaining a sound broadcasting licence if a company wishes to provide sound broadcasting services.

Television broadcasting: The basic licensing requirement is that no person can provide a television broadcasting service (domestic free television programme services (DFT), domestic pay television programme services (DPT), non-domestic television programme services (NDT) or other licensable television programme services (OT)) without a licence.

The Broadcasting Ordinance (Cap 562) sets out specific services that are not to be regarded as television programme services. Examples include:

  • any service provided on the Internet; and
  • any programme service exclusively between points specified by the person transmitting the programme service and the person receiving it and which is not made available to any other person.

Print: Under the Registration of Local Newspapers Ordinance (Cap 268) (RLNO), publications containing news, information and commentaries that are published at intervals not exceeding six months must be registered.

The RLNO sets out items which are not to be regarded as newspapers for the purposes of the RLNO, such as:

  • academic journals;
  • commercial circulars;
  • religious materials; and
  • sales catalogues.

The publisher of a new book must, within one month of the book being published, printed, produced or otherwise made in Hong Kong, deliver it to the secretary for registration.

The Books Registration Ordinance (Cap 142) specifies the books whose registration is not required, which include:

  • newspapers that issue their editions not less than four times a week; and
  • any books that are not made available to the public at large.

Film: A person may not exhibit a film publicly in Hong Kong unless exempted or approved by the Film Censorship Authority.

The Film Censorship Ordinance (Cap 392) provides for specific films that may be considered exempt from approval by the Film Censorship Authority. For example, a still film is exempt from approval by the Film Censorship Authority if it complies with specific requirements such as it not being exhibited for a commercial purpose.

(d) Social media

No authorisations or licences are required for social media service providers to operate in Hong Kong.

3.2 What are the key features of such authorisations/licences?

(a) Telecommunications

The key features of telecommunications licences are:

  • the period of validity;
  • the payment of fees and royalty; and
  • the frequency of payments.

For licences other than exclusive licences and carrier licences, the Communications Authority may determine:

  • the form of licence;
  • the conditions for grant of the licence;
  • the period for which the licence is valid;
  • the types of licence (including class licences) to be issued; and
  • the fees payable, including for the grant and renewal of licences and by way of annual fees.

The conditions of licences can include:

  • the manner of service provision;
  • interconnection;
  • interference;
  • adherence to technical standards;
  • compliance with directions, guidelines, codes of practice, regulations, the Telecommunications Ordinance (Cap 106) and international obligations;
  • universal service obligations;
  • accounting practices;
  • the provision of information;
  • tariffs;
  • network coordination;
  • the protection of customer information;
  • the prohibition of unfair market practice;
  • the regulation of a dominant licensee; and
  • the provision of performance bonds (Section 7 of the Telecommunications Ordinance (Cap 106))

The Communications Authority has published sample licences for a number of licences, including:

  • the unified carrier licence;
  • the localised wireless broadband service licence; and
  • the localised wireless broadband service (private) licence.

(b) Internet

Please see question 3.2(a).

(c) Media

Sound and television broadcasting: The key features of a sound or television broadcasting licence are:

  • the period of validity;
  • the payment of fees, royalties or other charges;
  • general conditions; and
  • the specific terms and conditions as specified in the licence.

Licence conditions may vary according to the types of television and sound broadcasting service, but the general conditions are:

  • to apply up-to-date technology to perfect the quality of broadcasting and comply with the broadcasting coverage requirements;
  • to handle complaints and conduct training programmes to ensure that staff are familiar with the broadcasting standards;
  • for sound broadcasting, to broadcast commercial free-to-air radio services;
  • to broadcast on radio services or on domestic free television programme services no less than a stipulated minimum amount of comprehensive news bulletins, current affairs programmes, programmes for young persons and senior citizens, arts and culture programmes and so on within a specified period of time;
  • to implement the plans on capital investment and programme development as approved by the Communications Authority; and
  • to keep proper maintenance of their equipment and transmitting stations.

Specific terms and conditions for television broadcasting include:

  • potentially, a requirement to submit a duly issued performance bond in favour of the Hong Kong government;
  • compliance with the licensee's proposal approved by the Communications Authority;
  • Separate accounting practices in accordance with the Broadcasting Ordinance (Cap 562); and
  • A requirement that the licensee and any person exercising control of the licensee be and remain a fit and proper person.

Film: If the Film Censorship Authority approves a film for exhibition and gives it a classification, the authority will issue to the person that submitted the film a certificate of approval endorsed with any condition determined by the Film Censorship Authority.

(d) Social media

Please see question 3.1(d).

3.3 What are the procedural and documentary requirements to obtain such authorisations/licences?

(a) Telecommunications

An applicant must complete all parts of the relevant application form in English and submit the application form with supporting documents to the Office of the Communications Authority (OFCA) to obtain a telecommunications licence.

The supporting documents to be submitted includes:

  • an application proposal setting out how the applicant meets the criteria to be granted a licence;
  • documents showing the company structure of the applicant; and
  • financial documents showing the applicant's financial capability.

(b) Internet

Please see question 3.3(a).

(c) Media

Sound and television broadcasting: An applicant must:

  • complete the application form, statutory declaration, consultation form and an acknowledgment form (if required) in English or Chinese; and
  • submit these documents with supporting documents to the Communications Authority, including:
    • company information (eg, documents regarding the structure, shareholders, constitutional documents);
    • financial information;
    • programming information; and
    • technical information.

Print: The newspaper publisher or the printer of every local newspaper must deliver to the Registrar of Newspapers a copy of the newspaper within one day of publication.

The publisher of a new book must deliver, free of charge, five copies of the book to the secretary for culture, sports and tourism for registration, together with all maps, prints or other engravings contained in the book, within one month of the book being published, printed, produced or made in Hong Kong.

The publisher must also forward to the secretary in writing any particulars of the book that the secretary requires to register the relevant book.

Film: A film intended for exhibition must be submitted to the Film Censorship Authority, accompanied by:

  • a statement as to the classification which is sought for the film;
  • a declaration as to whether the film has been classified as obscene or indecent (including material that is violent, depraved or repulsive) under the Control of Obscene and Indecent Articles Ordinance (Cap 390); and
  • such forms, information and particulars as the Film Censorship Authority may determine.

A submission may be made electronically through a portal of the Office for Film, Newspaper and Article Administration.

(d) Social media

Please see question 3.1(d).

3.4 What does the authorisation/licensing process involve? How long does it typically take? What costs are incurred?

(a) Telecommunications

OFCA will review each application and the supporting documents and decide whether to grant a licence. Each application is evaluated on its merits having regard to the information provided as required in the relevant guidelines of the licence and to the broad licensing criteria under the Telecommunications Ordinance (Cap 106).

The length of time it takes to process each application depends on:

  • the type of telecommunication licence;
  • the quality of the submission; and
  • specific features of the application.

For example, OFCA has stated that it takes about three months to process a service-based operator licence application.

The costs incurred include the licence fee if the applicable licence is granted by the Communication Authority. Licence fees payable upon grant of the licence by the Communications Authority range from HK$150 to HK$100,000. Some licence fees increase according to the number of stations operating under the licence, or other variables.

(b) Internet

Please see question 3.4(a).

(c) Media

Sound and television broadcasting: For both sound and television broadcasting licences, OFCA will examine each application to see whether all required information has been provided. If OFCA is satisfied that the applicant meets all the requirements, the Communications Authority will then consult the public on the application by publishing a notice on the Communication Authority's website, in one English daily newspaper and in one Chinese daily newspaper.

The public may make representations on the application to the Communications Authority by a date specified in the notice, being not less than 21 days after the notice is published. The Communications Authority will consider those representations.

If the Communications Authority is satisfied that the applicant meets all the requirements set out in the legislation and all other factors relevant for the application, it will then make recommendations to the chief executive in Council, who will determine whether to grant the broadcasting licence to the applicant. The length of time to process an application varies, but it usually takes a minimum of one year.

If the licence is granted, the chief executive in Council will determine the fees or other charges (whether annual or otherwise) specified in the licence.

In respect of applications for NDT licences or OT licences, the Communications Authority will review the applications and determine whether to issue the relevant licence. In general, it takes about four months from the receipt of all required documents and clarifications of the applicant.

The prevailing annual licence fee payable for a DFT licence comprises:

  • a fixed fee of HK$4,701,400; and
  • a variable fee calculated on the basis of the aggregate duration of the television programmes provided by the licensee in the preceding licensing year at the rate of:
    • HK$13,200 per 100 hours for the first 17,000 hours; and
    • HK$1,630 per every 100 hours thereafter.

The prevailing annual licence fee payable for a DPT licence comprises:

  • a fixed fee of HK$1,533,000; and
  • a variable fee calculated by multiplying HK$4 by the number of subscribers (if any) to the service provided under the licence.

The annual licence fee payable for a Type A NDT Licence is HK$56,400. The annual licence fee payable for a Type B NDT licence is:

  • HK$74,000; and
  • a variable fee depending on the number of subscribers.

The annual licence fee payable for a Type A OT licence is:

  • HK$73,500; and
  • a variable fee depending on the number of subscribers.

The annual licence fee payable for a Type B OT licence is:

  • HK$16,800; and
  • a variable fee depending on the number of subscribers.

Film: The Film Censorship Authority will assign, as soon as practicable but in any case no later than seven working days after the film is submitted, a censor and may at the same time assign not less than two advisers.

If a film requires classification, the censor must decide on its classification within:

  • 14 days of the film's acceptance by the Film Censorship Authority; or
  • any such longer period as the secretary for commerce and economic development may allow.

The fees payable for examination depend on the type of film and item to be examined.

(d) Social media

Please see question 3.1(d).

3.5 What are the ongoing rights and obligations of the authorisation/licence holder? How is compliance monitored? What penalties may be imposed for breach?

(a) Telecommunications

The ongoing rights of a licence holder are that that the licence holder may conduct the activities set out in its licence for the validity period of the licence.

The ongoing obligations for each licence holder vary according to the specific licence in question. Common ongoing obligations include:

  • ensuring that all persons exercising control of the licence holder are fit and proper persons;
  • following conditions imposed under the licence to the satisfaction of the Communications Authority;
  • ensuring that its articles of association comply fully with the provisions of the Telecommunications Ordinance (Cap 106) and the terms and conditions of its licence;
  • operating, maintaining and providing a good, efficient and continuous service in a manner satisfactory to the Communications Authority;
  • supplying the Communications Authority with information upon request under the Telecommunications Ordinance (Cap 106); and
  • allowing the Communications Authority inspection rights of the premises or place of the licensee.

The Communications Authority will monitor holders of telecommunications licences to ensure that they are meeting their licence conditions and regulations. The Communications Authority has the power to investigate any suspected contravention of the licence conditions, codes of practice and the Telecommunications Ordinance (Cap 106). The public can also lodge a complaint or report to the Communications Authority in respect of a telecommunications licence holder. The Communications Authority publishes enforcement activity and consumer complaints on its website on at least a semi-annual basis.

Breaches of the Telecommunications Ordinance (Cap 106) may result in fines or imprisonment, depending on the breach. The Communications Authority also has the power to cancel, withdraw or suspend a telecommunications licence.

(b) Internet

Please see question 3.5(a).

(c) Media

Sound broadcasting: The ongoing rights of a licence holder are that the licence holder may conduct the activities set out in its licence for the validity period of the licence.

The ongoing obligations for each licence holder vary according to the specific licence in question. Common ongoing obligations include:

  • ensuring that all persons exercising control of the licence holder are fit and proper persons;
  • following conditions imposed under the licence to the satisfaction of the Communications Authority;
  • maintaining the ownership or voting control required under the Telecommunications Ordinance (Cap 106) and by the Communications Authority;
  • ensuring that its articles of association comply fully with the provisions of the Telecommunications Ordinance and the terms and conditions of its licence; and
  • supplying the Communications Authority with information upon request under the Telecommunications Ordinance (Cap 106).

The Communications Authority will monitor holders of sound broadcasting licences to ensure that they are meeting their licence conditions and regulations. The Communications Authority has the power to investigate any suspected contravention of the licence conditions, codes of practice and the Telecommunications Ordinance (Cap 106). The public can also lodge a complaint or report to the Communications Authority in respect of a sound broadcasting licence holder.

Breaches by a sound broadcasting licensee of the terms or conditions of its licence, the Telecommunications Ordinance (Cap 106), an applicable code of practice or any direction issued by the Communications Authority may result in financial penalties and a requirement for the licensee to broadcast an apology or correction.

Television broadcasting: The ongoing rights of a licence holder are that that the licence holder may conduct the activities set out in its licence for the validity period of the licence.

The ongoing obligations for each licence holder vary according to the specific licence in question. Common ongoing obligations include:

  • complying with specific and general licence conditions of the licence;
  • complying with requirements under the Broadcasting Ordinance (Cap 562);
  • comply with directions, orders, or determinations under the Broadcasting Ordinance (Cap 562) that apply to the licensee;
  • complying with applicable codes of practice;
  • securing proper standards for its licensed services with regard to television programme content and technical performance; and
  • ensuring that licensed services do not include subliminal messages.

The Communications Authority monitors television broadcasting licence holders in the same way as sound broadcasting licence holders. Breaches also attract similar penalties.

Film: The Film Censorship Authority will monitor compliance with the endorsed conditions imposed on a certificate. If a person contravenes the conditions, then the person may be subject to fines or imprisonment.

(d) Social media

Please see question 3.1(d).

3.6 For how long is the authorisation/licence valid? Are variations to the terms possible? How is the authorisation/licence renewed?

(a) Telecommunications

Various telecommunications licences have different periods of validity. The validity of a licence is stated for the specified licence. A localised wireless broadband service licence may be valid for up to five years and a unified carrier licence may be valid for up to 15 years.

Variations to the terms of a telecommunication licence are possible. The licensee may apply to the Communications Authority to change its scope of service, for example. The Communications Authority may act on its own volition to vary the terms of a licence, but any such variation will require the consent of the licensee.

There are special rules for variations in respect of class licences. The Communications Authority may vary a class licence by:

  • providing notice in the Government Gazette to allow for representations from the public; and
  • proceeding with the variation having duly considered the representations it has received.

Each telecommunications licence has different provisions and processes for renewal. For example, a carrier licence does not automatically renew and a licence holder must apply for a new licence before expiry. A services-based operator licence can be renewed for two years at a time, and there is a specific procedure to do this.

(b) Internet

Please see question 3.6(a).

(c) Media

Sound broadcasting: A sound broadcasting licence will be valid for such period as is specified in the licence or, where a period is not specified, such period as determined by the chief executive in Council by order.

The licence is intended to facilitate long-term business and normally the validity period of a sound broadcasting licence is up to 12 years.

The chief executive in Council may vary the terms and conditions of a licence.

A licence will be subject to renewal:

  • within the period of validity on such dates as specified in the licence; or
  • where not specified, on such dates as may be determined by the chief executive in Council by order.

The Communications Authority will submit recommendations to the chief executive in Council concerning the renewal of a licence. The recommendations must be made within 15 months of the date for renewal. The chief executive in Council may then renew the licence or renew a licence by granting a new licence in substitution (Section 13F of the Telecommunications Ordinance (Cap 106)).

Television broadcasting: A television broadcasting licence will be valid for such period as is specified in the licence.

The licence is intended to facilitate long-term business and normally the validity period of a television licence is 12 years.

The chief executive in Council (for DPT or DFT licences) or the Communications Authority (for NDT or OT licences) may vary a licence at any time after the licensee has been given reasonable opportunity to make representations under the Broadcasting Ordinance (Cap 562) (Section 10 of the Broadcasting Ordinance (Cap 562)). The chief executive in Council or Communications Authority may vary the licence without prior consent of the licensee.

A licensee may apply by application to renew or extend its licence. The application must be made within:

  • 24 months of the expiry date for the licence; or
  • such shorter period as the Communications Authority specifies.

(d) Social media

Please see question 3.1(d).

3.7 Can an authorisation/licence be transferred? If so, what is the process for doing so?

(a) Telecommunications

Subject to the terms of the specific licence, a licensee may generally transfer its licence only:

  • with the prior written consent of the Communications Authority; and
  • subject to such reasonable conditions as the Communications Authority thinks fit.

The licence holder must apply to the Communications Authority in writing.

(b) Internet

Please see question 3.7(a).

(c) Media

Sound broadcasting: A sound broadcasting licence may be assigned with the prior approval of the chief executive in Council.

If the licensee wishes to assign its licence, it must first approach the Communications Authority. The Communications Authority will then analyse the assignment application and make recommendations to the chief executive in Council.

Television broadcasting: A licence or an interest in a television broadcasting licence may not be transferred in whole or in part.

(d) Social media

Please see question 3.1(d).

4 Telecommunications

4.1 What provisions apply to the construction of telecommunications infrastructure and the installation of facilities on public and private property?

The Communications Authority and its authorised licensees may place and maintain a telecommunications line and such posts as may be necessary in, over or upon any land or seabed. The Communications Authority and its authorised licensees may also enter any land or the seabed for the purpose of site inspection or other activities relating to placement and maintenance of a telecommunications line.

The Communications Authority needs:

  • the written consent of the director of lands to exercise these rights in the case of unleased government land or seabed; and
  • the written consent of the commander of the relevant garrison in the case of land vested in or occupied by a garrison (Section 14 of the Telecommunications Ordinance (Cap 106)).

Land, for the purpose of these rights, excludes land for the exclusive occupation or use of any person while it is being so occupied or used.

4.2 Do any universal service obligations apply in your jurisdiction? If so, what are they and how are they funded?

Universal service obligations (USO) do apply in Hong Kong (Section 35B of the Telecommunications Ordinance (Cap 106)). Presently, PCCW-HKT Telephone Limited and Hong Kong Telecommunications Limited has a USO condition stated under its carrier licence. This specifies that basic services should be made reasonably available to all persons in Hong Kong at service charges capped by the published tariffs.

The USO mainly covers basic fixed voice telephony services and public payphones. The cost of providing a public payphone service subject to the USO is shared by fixed and mobile services operators. A review of public payphones was conducted by the Office of the Communications Authority (OFCA) in 2019 resulted in 515 in-building public payphone (35% of the total) and 765 kiosk public payphones (50% of the total) being excluded from the USO. This reduced the overall cost burden of the USO and increased price competitiveness in the market.

The Communications Authority has established a system for licensees to make reasonable contributions to a fund managed by the Communications Authority to fund the cost of providing the USO.

Broadband or mobile services are not covered under the USO and the coverage of such services is mainly a commercial decision.

4.3 How is interconnection regulated in your jurisdiction? What rules and requirements apply in this regard? Are interconnection and network access charges subject to price regulation?

Interconnection is regulated under the Telecommunications Ordinance (Cap 106). Telecommunications carriers must interconnect their services and networks to ensure any-to-any connectivity.

The Communications Authority may determine any application of interconnection and the terms and conditions of interconnection between telecommunications networks and services. The requirements will be set out in the specific licence. The Communications Authority may also issue directions to a licensee requiring it to take such action as the Communications Authority considers necessary to secure the connection of any telecommunications service to another telecommunications network or system. Notwithstanding these powers, the policy of the Communications Authority is to encourage that interconnection agreements are commercially negotiated.

The Communication Authority may determine the level of, and the method of calculating, the charges that any party will pay to another. The charges will be based on the relevant reasonable costs attributable to interconnection. The Communications Authority does not directly regulate charges, as it pursues a policy that charges should be determined through commercial negotiations between licensees.

There is a general obligation on parties to an interconnection agreement to file a copy of the agreement with the Communications Authority within 14 days of it being made. This obligation may be waived by the Communications Authority, which has indeed issued waivers to relax the filing requirement. At present, the filing requirement applies only to interconnection agreements signed between carrier licensees which are of a type or contain a substantive element that is new to one or more of the parties.

4.4 What rules and requirements govern the allocation and use of telephone numbers in your jurisdiction?

The Communications Authority governs the allocation and use of telecommunication numbers and codes, and retains all rights, ownership and control over them. The Communications Authority has issued a Numbering Plan for Telecommunications Services in Hong Kong. A licensee may apply to the Communications Authority for the allocation of telecommunication numbers and codes under the numbering plan.

4.5 What rules and requirements govern number portability in your jurisdiction?

Licensees for the provision of fixed or mobile services must facilitate mobile number portability among their networks. Number portability for fixed and mobile telecommunications services is implemented in Hong Kong using the distributed database approach.

Under the Telecommunications Ordinance, the Communications Authority (Cap 106) has issued the following requirements and codes of practice setting out the rules and requirements that govern number portability:

  • the Requirements for Mobile Number Portability by Database Solution (HKCA 2103);
  • the Functional Specification of Administration Database for Mobile Number Portability (HKCA 2104);
  • the Code of Practice Related to the Implementation of Mobile Number Portability; and
  • the Code of Practice Relating to the Use of Numbers and Codes in the Hong Kong Numbering Plan.

4.6 Are retail customer charges subject to price regulation in your jurisdiction?

The secretary for commerce and economic development, being the designated government official for telecommunications, may require that:

  • a fixed carrier licensee which is in a dominant position in a telecommunications market be subject to price control measures; and
  • a carrier licensee which is in a dominant position in the telecommunications market be prohibited from charging more or less than its published tariffs (Section 7G of the Telecommunications Ordinance (Cap 106)).

Otherwise, the policy of the Communications Authority is to promote competition and for licensees to set customer charges on a normal commercial basis.

4.7 Are retail customer terms and conditions subject to regulation in your jurisdiction?

Retail customer terms and conditions are subject to regulation in Hong Kong by the Telecommunications Ordinance (Cap 106) and the codes of practices issued by the Communications Authority.

The Communications Association of Hong Kong has issued an Industry Code of Practice for Telecommunications Service Contracts. The Communications Association of Hong Kong is a trade association for Hong Kong's communications industries. The Industry Code has been effective since 1 May 2015 and applies to personal or residential users.

The Industry Code sets minimum standards of practice in respect of customer terms and conditions, and addresses topics such as:

  • clarity of terms in contracts;
  • the provision of written confirmation for contracts concluded over the phone;
  • an opt-out option for free-trial services;
  • a cooling-off period for contracts entered into during unsolicited visits to consumers' homes;
  • procedures for service contract renewal and termination;
  • protection of customers from unilateral variation of contract terms; and
  • fair arrangements for service relocation requests.

Although the Industry Code is a voluntary scheme, it has been endorsed by OFCA and licensees are expected to comply with it. Licensees may choose to include other customer terms and conditions which are not inconsistent with the Industry Code.

The Communications Authority will also regulate any exploitative or anti-competitive behaviour of licensees.

5 Spectrum use

5.1 How is spectrum use authorised in your jurisdiction? Do any exemptions apply?

The Communications Authority is responsible for promoting and managing the efficient allocation and use of radio spectrum as a public resource of Hong Kong. It has the power to allocate frequencies (and bands of frequencies) for all parts of the radio spectrum used in Hong Kong and to designate the spectrum utilisation fee (SUF) (Part 5B of the Telecommunications Ordinance (Cap 106)).

The guiding principle adopted by the Communications Authority is to apply a market-based approach in spectrum management when there are competing demands from providers of non-government services. Key policy objectives include:

  • facilitating the most economically and socially efficient use of spectrum with a view to attaining maximum benefit for the community; and
  • achieving technically efficient use of spectrum to facilitate the introduction of advanced and innovative communications services and strengthen Hong Kong's position as a telecommunications and broadcasting hub.

There are parts of the spectrum that are reserved for use by the government and parts that are managed by the government administration.

5.2 What is the procedure for allocating spectrum in your jurisdiction?

The Communications Authority publishes a Spectrum Release Plan, which is updated each year. The plan is intended to notify interested persons of the potential supply of radio spectrum available for open bidding, tendering or other appropriate means over the next few years (usually three years). An interested party may bid or apply to the Communications Authority for the available radio spectrum. The Communications Authority will then allocate the radio spectrum in accordance with the auction, tendering or other applicable means made by the interested parties. Spectrum allocation is usually for a period of 15 years.

5.3 How long does it typically take? What costs are involved?

The time to allocate spectrum will depend on the auction, tender or other means chosen by the Communications Authority.

The Communications Authority will determine the spectrum and services that will attract SUF and the levels of SUF payable. The following laws give effect to the SUF charging scheme governed by the Communications Authority:

  • the Telecommunications (Designation of Frequency Bands Subject to Payment of Spectrum Utilisation Fee) Order (Cap 106Y); and
  • the Telecommunications (Level of Spectrum Utilisation Fee) (Fixed and Other Links) Regulation (Cap 106AE).

5.4 What are the penalties for unauthorised spectrum use or breach of authorisation?

A person must not, in Hong Kong or on board any ship, aircraft or space object that is registered or licensed in Hong Kong, use a frequency in any part of the radio spectrum unless the frequency is assigned or located within a band of frequencies assigned by the Communications Authority.

It is an offence if a person uses an apparatus for telecommunications in a manner that causes direct or indirect harmful interference with any telecommunications service lawfully carried on, or other apparatus for telecommunications lawfully operated, in or outside Hong Kong. Upon conviction, an offence may result in a potential fine of HK$50,000 and imprisonment for six months.

A licensee that possesses or uses a radio transmitter operating on another frequency that is not authorised under its licence will commit an offence under the Telecommunications Ordinance (Cap 106) and will be liable on conviction to a fine of HK$50,000 and to imprisonment for two years.

5.5 Can a spectrum authorisation be transferred? If so, what is the process for doing so?

Spectrum trading is a mechanism whereby a spectrum assignee may transfer all or part of the spectrum it holds to another party for the duration of spectrum assignment. Spectrum trading is not permitted in Hong Kong. In a 2018 policy statement of the Commerce and Economic Development Bureau, following a feasibility study, the policy was confirmed that there was no justifiable case for introducing spectrum trading in Hong Kong in the short or medium term.

6 Internet

6.1 What provisions apply to high-speed broadband in your jurisdiction? Are there any government incentives to promote broadband penetration?

There are no specific legal provisions that apply to high-speed broadband in Hong Kong.

There are government incentives to promote broadband penetration. Hong Kong currently has a broadband penetration rate of over 95%.

In 2018, the Hong Kong government launched a subsidy scheme to extend fibre-based networks to 235 remote villages in the New Territories and on outlying islands of Hong Kong.

6.2 What net neutrality regulations apply in your jurisdiction? Are any exemptions and/or exceptions available?

There are no specific net neutrality regulations that apply in Hong Kong. The existing laws and licence conditions provide safeguards to prevent an internet service provider from acting unilaterally to violate net neutrality.

The relevant safeguards in place are as follows:

  • The Communications Authority may determine the terms and conditions of interconnection.
  • The Communications Authority may issue directions in writing to a licensee requiring it to take such action in relation to any interconnection or secure the connection of any telecommunications service.
  • Any person that offers a public telecommunications service must supply information to the Communications Authority as requested.
  • There are licence conditions for licensees that govern:
    • the provision of service;
    • control of interference and obstruction;
    • the provision of satisfactory service; and
    • information requirements for licensees.
  • Sections 6 and 21 of the Competition Ordinance (Cap 619):
    • prevent agreements, concerted practices or decisions that prevent, restrict or distort competition in Hong Kong; and
    • prohibit the abuse of a substantial degree of market power by preventing, restricting or distorting competition in Hong Kong.
  • Sections 7A and 13E of the Trade Descriptions Ordinance (Cap 362) prohibit unfair trade practices such as false trade description of services and misleading omissions.

6.3 Are internet service providers (ISPs) obliged to block or restrict access to specific websites or types of content in your jurisdiction?

There are four scenarios in which an ISP is obliged to block or restrict access to specific websites or types of content in Hong Kong:

  • The website or website content infringes a copyright by making available copies to the public through the Internet;
  • The website or website content is considered obscene or indecent in accordance with the Control of Obscene and Indecent Articles Ordinance (Cap 390);
  • The commissioner of police has reasonable grounds to suspect that an electronic message published on an electronic platform is likely to constitute an offence endangering national security or is likely to cause the occurrence of an offence endangering national security, and a request is issued to the ISP; or
  • The website or website content discloses personal data of a data subject (who is a Hong Kong resident or present in Hong Kong at the time of disclosure) without consent and this constitutes an offence under the Personal Data (Privacy) Ordinance (Cap 486) (PDPO). Two offences that target doxxing under the PDPO are:
    • a summary offence for disclosing any personal data of a data subject without the relevant consent of the data subject, in circumstances in which the discloser has an intent to or is being reckless as to whether any specified harm would be, or would likely be, caused to the data subject or any family member of the data subject; and
    • an indictable offence for disclosing any personal data of a data subject without the relevant consent of the data subject where:
      • the discloser has an intent to or is being reckless as to whether any specified harm would be, or would likely be, caused to the data subject or any family member of the data subject; and
      • the disclosure causes any specified harm to the data subject or any family member of the data subject.

6.4 Is the use of virtual private networks permitted in your jurisdiction?

Yes, the use of virtual private networks is permitted in Hong Kong.

6.5 In what circumstances will ISPs be held liable for offending content carried on their networks? What defences are available?

Obscene and indecent content: An ISP may be found liable for publishing or possessing for the purpose of publishing obscene (Class III) or indecent (Class II) content under the Control of Obscene and Indecent Articles Ordinance (Cap 390) (COIA), which attracts a maximum fine of HK$1 million and imprisonment for three years.

The defences available for publishing, possessing or importing obscene articles are as follows:

  • The ISP can prove that, at the time the offence is alleged to have been committed, the article was classified as a Class III (ie, obscene) article; but it may be convicted of any other offence under the COIA as if it had been charged with that other offence.
  • The ISP can prove that the article is, or was at the time the offence is alleged to have been committed, classified as a Class I (ie, neither obscene nor indecent) or a Class II (ie, indecent) article.
  • In respect of possession or importing, the ISP can prove that, at the time the offence is alleged to have been committed, the relevant article was possessed or imported:
    • by it for the purpose of submitting it, a copy or a print to the registrar for classification by a tribunal; or
    • by a person licensed under the Broadcasting Ordinance (Cap 562) for the purpose of submitting the articles under the relevant provisions of the ordinance.
  • For the purposes of possessing, the ISP can prove that, at the time that offence is alleged to have been committed, it:
    • had no reasonable opportunity to inspect the relevant article; and
    • had reasonable grounds to believe that article was not obscene.
  • In respect of importation, the ISP can prove that, at the time that offence is alleged to have been committed, it had reasonable grounds to believe that the relevant article was not obscene.

Copyright infringement: The mere provision of physical facilities for enabling the making available of copies of works to the public does not of itself constitute an act of infringement of copyright by actually making available copies of works to the public.

An ISP may be liable for copyright infringement if:

  • it is found to have engaged in unauthorised acts by the copyright owner;
  • it is held responsible for contributing to or making possible the act of infringement; or
  • it knowingly possesses or deals with infringing copies of copyright works.

An ISP may also be found liable under civil liability as a joint tortfeasor for deliberately collaborating with a third party to commit an infringing act or otherwise procuring another to commit the tort.

Available defences include proving that the ISP was merely providing physical facilities for enabling the making available of copies of works to the public.

National security: If an ISP fails to comply with a requirement by the police to remove messages endangering national security or to restrict or cease access to messages or platforms, or a request by the police to provide assistance, the ISP will be liable on conviction to a fine of $100,000 and to imprisonment for six months.

It is a defence if:

  • the technology necessary to comply with the requirement was not reasonably available to the ISP; or
  • there was a risk of incurring substantial loss to, or otherwise substantially prejudicing the right of, a third party.

Anti-doxxing: If an ISP's website or website content discloses personal data of a data subject (who is a Hong Kong resident or present in Hong Kong at the time of disclosure) without consent and this may constitute a doxxing offence under the PDPO, the Office of the Privacy Commissioner for Personal Data (PCPD) may issue a cessation notice to the ISP to demand actions to cease or restrict disclosure of the doxxing contents. If the ISP does not remove the disclosure of personal data of a data subject before the date specified in the cessation notice, then the ISP commits an offence and is liable to a fine and imprisonment.

Potential defences for an ISP contravening a cessation notice include that:

  • the ISP had a reasonable excuse for contravening the cessation notice; or
  • it was not reasonable to expect the ISP to comply with the cessation notice:
    • having regard to the nature, difficulty or complexity of the cessation action concerned;
    • because the technology necessary for complying with the cessation notice was not reasonably available to the ISP; or
    • because there was a risk of incurring substantial loss to, or otherwise substantially prejudicing the right of, a third party.

6.6 How are digital platforms regulated in your jurisdiction?

Digital platforms are not regulated in Hong Kong by virtue of their digital delivery of services, except as mentioned above and in respect of data privacy mentioned below. Digital platforms may provide services in respect of regulated sectors of the economy (eg, financial services), and may be subject to the laws and regulations that apply to services in those regulated sectors generally.

7 Media

7.1 What rules and requirements apply to public broadcasters in your jurisdiction?

For present purposes, we interpret 'public broadcasters' as holders of domestic free television programme service (DFT) licences.

In addition to the rules and requirements for DFT licensees (as listed in questions 2.1(c) and 3.4(c)), DFT licensees must:

  • entertain, inform and educate, and ensure that the programming is balanced in content and a comprehensive service which is responsive to the diverse needs and aspirations of the community;
  • broadcast a service in the Chinese language and another in the English language;
  • keep the aggregate time of advertising within 10 minutes per hour between the period from 5:00 pm to 11:00 pm each day; and at other times ensure that the aggregate advertising time does not exceed 18% of the total time the service is provided in that period;
  • broadcast a minimum amount of different types of programmes per week on the Chinese and English service, including:
    • news;
    • current affairs programmes;
    • documentary programmes;
    • arts and culture programmes; and
    • programmes for children, young persons and senior citizens;
  • provide subtitling for all news, current affairs programmes, weather programmes and emergency announcements;
  • ensure that nothing unsuitable for children is shown within family viewing hours (ie, between 4:00 pm and 8:30 pm), and at times when programmes are specifically targeting children or under circumstances such that a large number of children might be expected to be watching television;
  • comply with the supplementary provisions, which include:
    • the minimum broadcasting hours per day;
    • the prohibition on advertisements of a religious or political nature or concerned with industrial disputes; and
    • the annual payment of licence fee and such other fees as may be prescribed;
  • comply with any specified requirements of the Communications Authority to include in its television programme service, without charge, any educational television programme for schools supplied by the Hong Kong government;
  • broadcast, during designated periods, a minimum amount of positive programmes as may be directed by the Communications Authority;
  • provide the service in such a manner as to enable it to be received throughout Hong Kong to the satisfaction of the Communications Authority; and
  • report to the Office of the Communications Authority in the event of any outage of broadcasting services.

7.2 What rules and requirements apply to commercial broadcasters in. your jurisdiction?

For the purposes of this section, we interpret 'commercial broadcasters' as holders of domestic pay television programme service (DPT), non-domestic television programme services (NDT) or other licensable television programme services (OT) licences.

DPT: In addition to the rules and requirements for DFT licensees, DPT licensees must:

  • provide the service in such a manner as to enable it to be received throughout Hong Kong to the satisfaction of the Communications Authority (unless exempted by the Communications Authority);
  • comply with the supplementary provisions, which include the prohibition of any advertisements of a religious or political nature or concerned with industrial disputes; and
  • notify the Communications Authority in advance of all changes to channel line-ups and provide details of any new channels to be included in the service.

NDT: NDT licensees must take all reasonable steps to ensure the acceptability of their services in, and to comply with the laws and programme and advertising standards stipulated by the relevant authorities of, recipient countries and places.

DPT, NDT and OT: These licensees must provide a television programme service locking device to the satisfaction of the Communications Authority (excluding service provided to hotel rooms). A 'locking device' controls access to the service and prevents unauthorised access.

7.3 Do any 'must-carry' obligations apply in your jurisdiction? If so, what are they and how are they funded?

No 'must-carry' obligations apply in Hong Kong. However, both DFT and DPT licensees must provide the service in such a manner as to enable it to be received throughout Hong Kong, or any specified parts of Hong Kong required by the DPT licence, to the satisfaction of the Communications Authority.

7.4 Do any local content requirements apply in your jurisdiction? Do any restrictions apply to foreign content? What exemptions and/or exceptions are available?

The local content requirements are set out in questions 7.1 and 7.2 above for DFT and DPT licensees.

There are no general restrictions that apply to the content of NDT or OT licensees. The Communications Authority may provide for specific exemptions as stated in the relevant licence.

7.5 What other content requirements and restrictions apply in your jurisdiction? Do these vary depending on the distribution channel (eg, traditional broadcast media versus new media)?

There are no content requirements or restrictions other than as stated above in respect of television broadcasting.

7.6 How is advertising regulated in your jurisdiction? Does this vary depending on the distribution channel?

There is no general legislation to regulate advertising in Hong Kong. Advertising is regulated depending on the distribution channel.

8 Competition

8.1 What competition-related provisions (eg, structural or functional separation requirements; significant market power requirements; media plurality rules) apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?

(a) Telecommunications

The Competition Ordinance (Cap 619) governs the competition-related provisions relevant for the telecommunications sector.

The Competition Ordinance (Cap 619) prohibits anti-competitive conduct under the first conduct rule, the second conduct rule and the merger rule. The first conduct rule prohibits anti-competitive agreements, concerted practices and decisions. The second conduct rule prohibits the abuse of market power.

The merger rule prohibits mergers that would substantially lessen competition. The merger rule applies only if one or more of the participants in the merger (eg, the acquirer or the entity being acquired):

  • holds a carrier licence;
  • indirectly or directly controls a carrier licence holder; or
  • conducted business immediately before the acquisition under a carrier licence under the Telecommunications Ordinance (Cap 106).

Also, the Communications Authority has the power to regulate a licensee in a dominant position in the telecommunications market, including regulating conduct that it considers exploitative. 'Exploitative conduct' includes:

  • fixing and maintaining prices or charges at an excessively high level; and
  • setting unfair trading terms and conditions for the provision on interconnection arrangements.

The Communications Authority has published guidelines to assist licensees in complying with the relevant competition provisions.

(b) Internet

Please see question 8.1(a).

(c) Media

The Competition Ordinance (Cap 619) governs the competition-related provisions relevant to sound broadcasting, television broadcasting and print sectors, for which the first conduct rule and the second conduct rule apply. The first conduct rule prohibits anti-competitive agreements, concerted practices and decisions. The second conduct rule prohibits the abuse of market power.

(d) Social media

Please see question 8.1(c).

8.2 To what extent can the national competition regulator intervene in the relevant sectors? What is the interplay between the competition regulator and the various sectoral regulators?

(a) Telecommunications

Under the Competition Ordinance (Cap 619), the Communications Authority is to enforce the Competition Ordinance (Cap 619) in respect of the conduct of undertakings operating in the telecommunications sectors. Specifically, the Communications Authority may perform the functions of the Competition Commission under the Competition Ordinance (Cap 619) insofar as they relate to the Telecommunications Ordinance (Cap 106).

The Communications Authority and the Competition Commission have signed a memorandum of understanding to coordinate the performance of their functions on which they have concurrent jurisdiction. Competition cases will be handled by the two authorities according to the arrangements set out in the memorandum of understanding.

If the matter falls within the scope of concurrent jurisdiction, the initiating authority will inform the other and determine which will be the lead authority. For cases involving the telecommunications sector and falling within the concurrent jurisdiction, the Communications Authority will ordinarily take the role of the lead authority and will assume responsibility for exercising the relevant powers and functions conferred upon it under the Competition Ordinance (Cap 619). The other competent authority will play a supporting role in such a manner as is appropriate or agreed, including by providing staffing support to assist the other side to the extent that resourcing allows.

If, at any point, it is not appropriate for the lead authority to continue considering a matter, the lead authority may refer the matter to the other competent authority.

(b) Internet

Please see question 8.2(a).

(c) Media

Sound and television broadcasting: Under the Competition Ordinance (Cap 619), the Communications Authority is conferred concurrent jurisdiction with the Competition Commission to enforce the Competition Ordinance (Cap 619) in respect of the conduct of undertakings operating in the telecommunications and broadcasting sectors. Specifically, the Communications Authority may perform the functions of the Competition Commission under the Competition Ordinance (Cap 619) insofar as they relate to:

  • licensees under the Telecommunications Ordinance (Cap 106) or Broadcasting Ordinance (Cap 562); and
  • persons that, although not such licensees, are persons whose activities require them to be licensed under the Telecommunications Ordinance (Cap 106) or Broadcasting Ordinance (Cap 562) (Section 159 of the Competition Ordinance (Cap 619)).

For further elaboration, please see question 8.2(a).

Print: The Competition Commission enforces the Competition Ordinance (Cap 619) in respect of the conduct of undertakings operating in the print sector.

(d) Social media

The Competition Commission enforces the Competition Ordinance (Cap 619) in respect of the conduct of undertakings operating in the social media sector. There is no specific social media sector regulator.

8.3 How are mergers and acquisitions in the relevant sectors treated from a competition perspective?

(a) Telecommunications

The Competition Ordinance (Cap 619) prohibits mergers that substantially lessen competition in Hong Kong. This is referred to as the 'merger rule'. A merger will typically arise from:

  • an amalgamation of undertakings;
  • an acquisition of control; or
  • an acquisition of assets.

The merger rule is not breached if there is likely to be no material reduction in competition.

The merger rule applies only if one or more of the participants in the merger (eg, the acquirer or the entity being acquired):

  • holds a carrier licence;
  • indirectly or directly controls a carrier licence holder; or
  • conducted business immediately before the merger under a carrier licence under the Telecommunications Ordinance (Cap 106).

If the lead authority believes that the merger rule is relevant to a transaction, it will conduct an assessment of the competitive effects of the merger transaction. This will entail an assessment of whether the transaction has, or is likely to have, the effect of substantially lessening competition in an identified market.

The merger rule does not apply to a merger if the economic efficiencies that arise or may arise from the merger transaction outweigh the adverse effects caused by any lessening of competition in Hong Kong.

There is no requirement to notify either the Communications Authority or the Competition Commission of a merger falling within the merger rule. Recommended best practice is for parties to a merger transaction which is likely to fall within the merger rule to notify the competent authority at the earliest opportunity and seek informal advice.

The lead authority may accept a commitment from parties to a merger transaction in respect of conduct that the lead authority considers appropriate to address its concerns about a possible contravention of the merger rule (eg, the 2019 acquisition of WTT Holding Corp by HKBN Ltd), in return for the lead authority's agreement not to commence an investigation or bring proceedings in the Competition Tribunal, or to terminate any investigation or proceedings that have been commenced.

Before accepting a commitment, the lead authority must:

  • give notice of the proposed commitment to those that are considered likely to be affected by the merger;
  • allow at least a period of 15 days for representations to be submitted; and
  • consider any representations that are made.

Any commitment accepted by the lead authority will be made public by the lead authority.

The parties to a merger transaction can also apply for a formal decision that the transaction is excluded from the scope of the merger rule.

Ultimately, if the lead authority, after carrying out an investigation, has reasonable cause to believe that a merger or an anticipated merger contravenes, or is likely to contravene the merger rule, it may bring proceedings before the Competition Tribunal seeking orders to stop the contravention. This will have the practical effect of stopping or unwinding the merger transaction.

(b) Internet

Please see question 8.3(a).

(c) Media

From a competition perspective, mergers and acquisitions are not treated any differently in the sound broadcasting, television broadcasting and print sectors from other sectors in the economy.

(d) Social media

From a competition perspective, mergers and acquisitions are not treated differently in the social media sector from other sectors in the economy.

8.4 What other specific challenges or concerns do the relevant sectors present from a competition perspective?

(a) Telecommunications

In general, there are few specific challenges or concerns from a competition perspective in respect of the telecommunications sector. All sectors of Hong Kong's telecommunications market have been liberalised, with no foreign ownership restrictions on telecommunications operators. The Communication Authority adopts policies to maintain a level playing field in an open and competitive telecommunications market.

Taking each of the key elements of the telecommunications sector in turn, the trends noted in the 2021 Annual Report of the Communications Authority include the following:

  • " Mobile communication services: As at March 2022, there were four major mobile network operators, providing a wide range of public mobile services in a market that the Communications Authority has described as keenly competitive.
  • Fixed communication services: The local fixed communications services market has been fully liberalised, with no pre-set limit on the number of licences to be issued for fixed services or deadline for the submission of licence applications. There is no specific requirement on network rollout and investment, and licensees may provide their services according to their proposals. As at March 2021, there were 27 local fixed carriers.
  • Fixed broadband services: As at March 2021, 27 facility-based operators and 237 service-based operators were authorised to provide broadband internet access services in Hong Kong.
  • Internet of Things services: Three wireless Internet of Things licences have been issued since the introduction of that licence in December 2017.
  • Public WiFi services: As at March 2021, eight network operators and 183 class licensees were providing public WiFi services in various locations in Hong Kong.
  • External telecommunications services: The external telecommunications facilities market has been fully liberalised in Hong Kong. As at March 2021, 42 fixed carriers were authorised to provide cable-based or non-cable-based external telecommunications facilities. There were eight cable landing stations in Hong Kong, and Hong Kong was connected to 11 regional and transcontinental submarine cable systems.
  • Satellite services: Hong Kong has adopted an 'open sk' policy in regulating the provision of satellite services. Licences are required for the operation of satellites and associated facilities. As at March 2021, two Hong Kong companies were licensed to operate satellites for providing communications services, operating a total of 10 in-orbit satellites.

(b) Internet

Please see question 8.4(a).

(c) Media

From a competition perspective, the specific challenges for certain companies that wish to enter the television broadcasting or sound broadcasting industries are the restrictions on foreign ownership and domicile requirements.

(d) Social media

None.

9 Data security and cybersecurity

9.1 What data security regimes apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?

The main legislative regime with provisions relating to data security is the Personal Data (Privacy) Ordinance (Cap 486) (PDPO). The PDPO applies to all relevant sectors.

Telecommunications providers are likely to be considered data users under the PDPO, and are subject to the obligations and requirements set out in the PDPO. A 'data user' means a person that, either alone or jointly or in common with other persons, controls the collection, holding, processing or use of personal data.

The PDPO sets out six data protection principles (DPPs):

  • DPP: Personal data must be collected in a lawful and fair manner, and the data user must give specified information to a data subject when collecting his or her personal data.
  • DPP2: Personal data must be accurate and up to date, and kept for no longer than necessary.
  • DPP3: Personal data should only be used for the purposes for which it was collected or a directly related purpose. Otherwise, the data user must obtain the 'prescribed consent' of the data subject.
  • DPP4: The data user must have measures in place to ensure the confidentiality and security of personal data.
  • DPP5: Data users must provide general information about the kinds of personal data they hold and the main purposes for which personal data is used.
  • DPP6: Data subjects must be given a right to access their personal data and a right to correct it.

DPP4 is the most relevant in respect of data security and requires data users take all practical steps to protect the personal data they hold against unauthorised and accidental access, processing, erasure, loss or use. Data users must have particular regard to:

  • the nature of the data;
  • the potential harm if such events were to happen; and
  • measures to ensure the integrity, prudence and competence of persons with access to the data.

If personal data is entrusted by the data user to a data processor, the data user is liable as the principal for any act done by its authorised data processor. The data user must adopt contractual or other means to prevent:

  • any personal data transferred to the data processor from being kept for longer than necessary for processing the data; and
  • unauthorised or accidental access, processing, erasure, loss or other inappropriate use of the personal data.

The PCPD has published a guidance note for mobile service operators in respect of personal data concerns. The guidance covers recommended best practices in:

  • handling mobile phone service applications;
  • audio-recording customer conversations;
  • maintaining customer service accounts;
  • disclosing customer account data;
  • protecting service account data; and
  • engaging third-party agents and dealers.

Also, telecommunications operators that are licensees are prohibited from disclosing information about a customer, except with the consent of the customer in accordance with a prescribed form designated by the Communications Authority, except:

  • for the prevention or detection of crime;
  • for the apprehension or prosecution of offenders; or
  • as may be authorised by or under any law.

9.2 What cybersecurity regimes apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?

Hong Kong does not have a single overarching cybersecurity law.

Currently, offences relating to cybersecurity are contained in various laws.

Telecommunications Ordinance (Cap 106): The Telecommunications Ordinance (Cap 106) criminalises actions involving:

  • damage to telecommunications infrastructure with intent;
  • unauthorised access to computers by telecommunications; and
  • transmission of false or deceptive distress messages.

Crimes Ordinance (Cap 200): The Crimes Ordinance (Cap 200) criminalises access to a computer with criminal or dishonest intent.

PDPO: The PDPO provides for offences for the disclosure of personal data without consent, among other things.

Unsolicited Electronic Messages Ordinance (Cap 593): This criminalises the initiation of transmissions of multiple commercial electronic messages from telecommunications devices that are accessed without authorisation and with the intent to deceive or mislead recipients as to the source of the messages.

Interception of Communications and Surveillance Ordinance (Cap 589): Subject to limited exceptions, it is unlawful for a public officer to carry out intercepting acts relating to communications. 'Intercepting acts' involve the inspection of some or all of the contents of the communication, in the course of its transmission by a postal service or by a telecommunications system, by a person other than its sender or intended recipient. One relevant exemption is that the prohibition does not apply to any interception of telecommunications transmitted by radiocommunications (other than the radiocommunications part of a telecommunications network for the provision of a public telecommunications service by any carrier licensee under the Telecommunications Ordinance (Cap 106)).

Enforcement: There is no single authority responsible for enforcing cybersecurity laws in Hong Kong. Rather, the competent enforcement authority will depend on the nature of the offence in question.

The Hong Kong Police Force is the enforcement authority for crime in Hong Kong. The Cybersecurity and Technology Crime Bureau is responsible for:

  • handling cybersecurity issues;
  • carrying out technology crime investigations and computer forensic examinations; and
  • preventing technology crime.

The PCPD is the competent authority for regulation of personal data matters, and will conduct investigations and issue enforcement notices.

The commissioner on interception of communications and surveillance is responsible for overseeing compliance by law enforcement agencies and their officers with the relevant requirements under the ICSO.

Policy: At a policy level, information security and cybersecurity fall under the remit of the Office of the Government Chief Officer (OGCIO). Its work involves the following:

  • The Hong Kong Computer Emergency Response Team Coordination Centre (HKCERT) is the centralised contact on computer and network security incident reporting and response for local businesses and internet users in case of security incidents.
  • The Cybersec Infohub is a partnership programme to promote closer collaboration among local information security stakeholders in different sectors to share cybersecurity information and jointly defend against cyberattacks. It is not intended for cybersecurity incident reporting, which is the role of HKCERT.
  • The OGCIO has established an information security website portal to facilitate the public's access to various information security-related resources and updates.

9.3 What other specific challenges or concerns do the relevant sectors present from a data security/cybersecurity perspective?

(a) Telecommunications

Operators in the telecommunications sector must consider requests from enforcement authorities to obtain access to communications, and this can be an area of concern or challenge.

In general, the Hong Kong police do not have the authority to conduct indiscriminate surveillance or search or seizure of data without prior authorisation.

Search and seizure with warrant: A warrant overrides any right to refuse disclosure on the basis of the PDPO and any contractual confidentiality obligations owed to third parties. However, there is no obligation to provide or disclose information or material that is subject to legal professional privilege.

Persons that fail to cooperate with enforcement authorities without a reasonable excuse commit an offence and may be criminally liable and arrested for obstructing the police in the execution of their lawful duties. Also, a number of offences are committed for failing to comply with court orders to provide access to information or prejudicing investigations.

Search and seizure without warrant: Warrants must generally be granted by the judiciary before police officers can carry out search and seizures at a specific site. However, in certain situations, a senior police officer may also authorise officers to carry out a search without a warrant or perform covert surveillance operations in circumstances where it is not reasonably practicable to obtain authorisation.

Covert interception of communication: The Hong Kong police may intercept communications or conduct covert surveillance upon obtaining authorisation from:

  • a designated authorising officer, for less intrusive covert surveillance operations; or
  • a panel judge, for more intrusive covert surveillance operations.

The purpose of the operation must be confined to the prevention or detection of serious crimes or the protection of public security. In addition, the tests of proportionality and necessity must be met, including the requirement that the purpose of the operation cannot reasonably be fulfilled by other less intrusive means. Any application for authorisation must state a specific serious crime or threat to public security.

The National Security Law provides similar legislative power for the Hong Kong police to carry out covert interception of communication or surveillance. The application procedure and the criteria required are largely identical to those of the ICSO, except:

  • an application under the National Security Law must relate to an offence of endangering national security; and
  • applications made under the National Security Law are generally made to the chief executive or the commissioner of police in emergency situations (rather than a panel judge).

Disclosure of personal data: Exemptions are specified in the PDPO in which data users can disregard certain provisions. Data users may disclose personal data to law enforcement agencies, such as the Hong Kong police, if the use of personal data by the law enforcement agencies is for:

  • the prevention or detection of crime; or
  • the apprehension, prosecution or detention of offenders.

However, simply because a law enforcement agency requests personal data does not mean that data users can provide the data requested without complying with DPP3 (which relates to the use of personal data for a new purpose).

Data users must consider whether non-provision of the data would be so serious as to be likely to prejudice the purposes for which it is collected. The view taken by the PCPD is that it is prudent for data users to make enquiries with the law enforcement agency on:

  • the purpose for which the personal data is collected;
  • the reasons why the personal data concerned is relevant; and
  • the reasons why the data subject's consent should not be obtained by the enforcement agency.

(b) Internet

Hong Kong's accelerated digitalisation has resulted in a greater risk of cyberattack and cybercrime in recent years. This represents significant challenges to both the cybersecurity of critical information infrastructure and personal data protection in Hong Kong. Over the past decade, Hong Kong has seen a significant increase in cybercrime, rising from 2,206 reported cases in 2011 to 16,159 in 2021. The value of those crimes also increased twentyfold from HK$148 million in 2011 to HK$3.02 billion in 2021.

Although cybercrime-related offences are scattered across various laws, there is no legislation that specifically addresses cybercrime or designated authority enforcing cybersecurity law in Hong Kong. At present, the main laws that deal with cybercrime-related offences include the Telecommunications Ordinance (Cap 106) and the Crimes Ordinance (Cap 200). There are plans to review and consolidate cybercrimes in Hong Kong law, and to introduce a legal framework for cybersecurity protection in Hong Kong (see question 10.1(a)).

(c) Media

Please see question 9.3(a).

(d) Social media

Please see question 9.3(a).

10 Trends and predictions

10.1 How would you describe the current TMT industry landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

(a) Telecommunications

Trends:

  • Ongoing implementation of real-name registration of SIM cards: As from 1 March 2022, all SIM cards issued by telecommunications operators of Hong Kong to be used for local person-to-person communications must have real-name registration before activation. The programme addresses issues arising from the anonymous nature of SIM cards and is intended to assist law enforcement agencies in the detection of crimes involving the use of SIM cards.
  • 5G implementation: The most significant trend in the TMT industry landscape in Hong Kong is the increasing development and use of the 5G spectrum. In total, 1,730 MHz of new spectrum has been supplied to the industry which is equivalent to almost three times of the spectrum previously released for the provision of 2G, 3G and 4G services.

Developments: We foresee two possible significant developments in the next 12 months, both in the cybersecurity area:

  • New cybersecurity law: The Hong Kong government is considering legislation to clearly define the cybersecurity obligations of critical information infrastructure (CII) operators in Hong Kong. This has been foreshadowed since the 2021 Policy Address. This was reaffirmed in a Legislative Council briefing on information security by the Office of the Government Chief Officer to the Panel on Information Technology and Broadcasting in April 2022. In short, it confirmed the Hong Kong government's intention to promote the establishment of management system by CII operators for the safe operation of those information systems and networks. This would be combined with preparatory work for the enactment of cybersecurity legislation.
  • New cybercrime offences: On 20 July 2022, the Cybercrime Sub-committee of the Hong Kong Law Reform Commission published a consultation paper with its recommendations to introduce five new cybercrimes into law in Hong Kong. The proposed new cybercrime offences are:
    • illegally accessing a computer program or data;
    • illegally intercepting computer data;
    • illegally interfering with computer data;
    • illegally interfering with a computer system; and
    • making available or possessing a device or data for committing a crime.

The Law Reform Commission has also recommended that the nature of cybercrime justifies the extra-territorial application of Hong Kong law. Legislative change may follow once the consultation conclusions are considered by the Department of Justice.

(b) Internet

Please see question 10.1(a).

(c) Media

Digital television broadcasting: The Hong Kong government has promoted the use of innovative technologies to provide a conducive environment for the development of broadcasting industry.

For example, Hong Kong implemented full digital television broadcasting on 1 December 2020. To tie in with the implementation of full digital television broadcasting, the government launched the Community Care Fund Digital Television Assistance Programme from 14 January 2020 to 15 July 2021 to help needy analogue television households to purchase digital television sets or set-top boxes, so that they could continue to watch free television after the implementation of full digital television broadcasting.

National Security Law: The National Security Law came into force in Hong Kong on 30 June 2020. Media outlets continue to take care to manage the risk of possible non-compliance with the National Security Law.

(d) Social media

Doxxing offences: New laws criminalising doxing came into force on 8 October 2021. When doxxing occurs on or via social media platforms, service providers and companies may receive a cessation notice from the Office of the Privacy Commissioner for Personal Data (PCPD) requesting them to remove the doxxing message(s). Given that contravention of a cessation notice constitutes a criminal offence under the Personal Data (Privacy) Ordinance (Cap 486), it is critical for social media service providers to put in place internal policies to assess and respond to enforcement requests.

As of the end of December 2022, the PCPD had:

  • written more than 400 times to request the operators of a total of 18 websites, online social media platforms and discussion forums to remove more than 7,400 web links involving doxing; and
  • issued 1,500 cessation notices to 26 online platforms, requesting them to remove over 17,700 web links involving doxxing.

Consultation on cybercrime reform: The cybercrime reform discussed in question 10.1(a) will also be relevant to the use of social media.

Copyright (Amendment) Ordinance 2022: The Copyright (Amendment) Ordinance 2022 came into operation on 1 May 2023, with the aim of strengthening copyright protection in the digital environment in Hong Kong.

The main aims of the Copyright Amendment Ordinance are to:

  • create an exclusive technology-neutral communication right for copyright owners to communicate their works to the public through any mode of electronic transmission;
  • introduce criminal sanctions against individuals who make unauthorised communication of copyright works to the public for profit or to prejudice copyright owners;
  • expand the scope of new copyright exceptions to allow for the use of copyright works in certain common internet activities;
  • introduce safe harbour provisions to limit online service providers' liability; and
  • introduce two additional statutory factors for courts to consider when determining whether to award additional damages to copyright owners for copyright infringements.

Specifically, the Copyright Amendment Ordinance includes provisions that are intended to limit the liability of online service providers, provided that they can demonstrate that they took reasonable steps to limit or stop the copyright infringement as soon as practicable after receiving a notice of alleged infringement.

Combating false information: The Hong Kong government is considering implementing legislative reforms to tackle the issue of false information. In November 2021, the Hong Kong Home Affairs Bureau (HAB) commissioned a consultant to study legislation enacted in overseas jurisdictions for regulating disinformation and propose effective recommendations for legislative reform. The HAB has not yet published the research conclusions. In May 2022, the secretary for security reported to the Legislative Council of Hong Kong that the HAB is still undergoing its process with the commissioned consultancy. These legislative changes, once proposed and implemented, will subject online service providers, including social media platforms, to tighter compliance standards to regulate disinformation.

New Cybersecurity Law: As stated in question 10.1(a), the Hong Kong government is considering legislating to clearly define the cybersecurity obligations of CII operators in Hong Kong. A comprehensive cybersecurity law will affect all businesses in the TMT sector, including those operating in the social media space. However, it will only be possible to begin to assess the impact once the consultation proposals have been published.

11 Tips and traps

11.1 What are your top tips for TMT players seeking to operate in your jurisdiction and what potential sticking points would you highlight?

(a) Telecommunications

The telecommunications market is fully liberalised in Hong Kong and there are no foreign ownership restrictions. The Communications Authority adopts a light-handed and pro-competition approach in the regulation of the telecommunications sector. Compared to many jurisdictions, Hong Kong is an open jurisdiction for market entry.

(b) Internet

The new proposed cybersecurity legislation signifies a new chapter in data protection and cybersecurity development in Hong Kong. It is possible that businesses in Hong Kong, including TMT players, will be subject to higher regulatory compliance standards when establishing their information and communication technology security systems. To comply with the relevant regulatory standards, TMT players should watch out for further updates on cybersecurity legislative developments in 2023.

(c) Media

The foreign ownership restrictions and domicile requirements to obtain a domestic free television programme services, domestic pay television programme services or sound broadcasting licence are a potential obstacle, although not necessarily unusual in broadcasting. That said, there is no cap on the number of television broadcasting licences that can be granted, subject to physical and technological constraints.

The Hong Kong government has also adopted an 'open sky' policy. Through satellite master antenna television (SMATV) and television receive-only systems, Hong Kong viewers can receive satellite TV channels that are intended for general reception as uplinked from Hong Kong and elsewhere.

According to the Commerce and Economic Development Bureau of Hong Kong, more than 600 such free-to-air satellite channels are now available for reception in Hong Kong. Over 770,000 premises in multi-storey buildings have access to satellite television channels through their SMATV systems.

(d) Social media

The social media industry in Hong Kong remains relatively liberalised, with no foreign ownership restrictions. Nevertheless, the risk environment for businesses in social media is changing in Hong Kong. TMT players are advised to take early steps to:

  • understand the provisions of the National Security Law and the Personal Data (Privacy) Ordinance (Cap 486) (especially in relation to anti-doxxing measures);
  • assess the relevant impacts on their businesses; and
  • adopt new policies accordingly.

They should also seek professional advice as necessary to strike an appropriate balance between cooperation with enforcement authorities and protection of user privacy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.