Court of First Instance of Hong Kong quashes abuse of dominance decision against TVB, setting out important principles for future competition law cases

On 29 January 2016, the Court of First Instance of Hong Kong ruled in favour of TVB and against the Communications Authority, in the ‘no Cantonese’ policy abuse of dominance case.

The 2013 decision by the CA, in which the broadcaster was fined nearly HK$1m under the sector-specific competition rules of the Broadcasting Ordinance for a series of abusive practices in relation to artists’ management, is now set aside.

The case is likely to be of considerable importance for the future of competition law enforcement in Hong Kong. While the decision was quashed under constitutional grounds (neither the Communications Authority nor the Chief Executive in Council were found to be an ‘independent and impartial tribunal’ for the purpose of the Bill of Rights Ordinance), the Court ruled that that the CA had used the correct ‘civil’ standard of proof to establish TVB’s violations of the law. This effectively sets a relatively low bar for future competition cases in Hong Kong, in a way that will facilitate the task of the CA and the newly set-up Competition Commission in fighting anti-competitive practices. Importantly, the court also validated most of the competitive analysis of the CA. Finally, the court provided useful information as to what type of remedies can be imposed to put an end to anti-competitive practices.

Justice Godfrey Lam heard the case against the CA’s initial decision and wrote the judgment summarised below. He has recently been appointed as the first President of the Competition Tribunal, which further underlines the relevance of the TVB case for competition law enforcement in Hong Kong.

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