Abuse of Dominance in the Hong Kong Television Sector: The TVB Case and its Implications for the New Competition Ordinance

Abstract

The proposed presentation looks at Hong Kong’s experience in enforcing the (former) competition provisions in the Broadcasting Ordinance (the “BO”) and evaluates its implications for the future enforcement of the cross-sector Competition Ordinance (the “CO”) (which has replaced the BO provisions). The presentation focuses specifically on the Court of First Instance decision on TVB’s judicial review application of the Communication Authority (CA)’s decision finding that TVB infringed the BO competition provisions (the “TVB Case”). The TVB Case raises interesting issues on both procedural and substantive competition law and such issues have significant implications for the new Hong Kong competition regime under the new CO. Procedurally, the Court of First Instance held that the CA’s decision should be quashed for procedural unconstitutionality, as the legal framework did not provide TVB with a hearing by an independent and impartial tribunal. However, the Court dismissed TVB’s alternative argument that the CA ought to have proved beyond reasonable doubt that TVB had violated the competition provisions. This raises interesting and important procedural issues on: (1) the administrative enforcement model (under the BO) versus the judicial enforcement model (under the CO); and (2) standard of proof under the CO. Substantively, the Court of First Instance upheld the CA’s competition law analysis and made extensive reference to overseas authorities (especially EU, UK and Australian decisions) in clarifying the relevant competition law principles. The TVB Case nevertheless raises interesting and important issues on: (3) market definition for two-sided markets; (4) assessment of market power; (5) the analysis of exclusive selling arrangements; and (6) the appropriate remedy.