The Broadcasting Authority was asked by the High Court to quash its censure issued to Radio Television Hong Kong (RTHK) over a TV program on homosexuality because it posed a threat to freedom of expression.

Justice Michael Hartmann made the order when he ruled against the authority in a judicial review over the issue that ended yesterday.

"It is understandable, in my view, that RTHK itself - and others - should have been so concerned at the finding of the authority, seeing it as a threat to well-established and entirely legitimate forms of documentary film-making; in short, as an impermissible restriction on the right to freedom of expression," said Justice Hartmann in his judgment delivered yesterday.

The saga began after the authority ruled that the program Hong Kong Connection - Gay Lovers, broadcast on TVB Jade in July 2006, was biased and partial toward homosexuality, and unsuitable for family viewing hours.

Cho Man-kit, one of the gay people interviewed in the program, filed a judicial review against the authority's ruling, saying it will create a chilling effect on free speech.

Controversy was raised after the airing of the program with critics saying it failed to present the other side of the story.

Justice Hartmann said it was lawful for the authority to deem the episode unsuitable for family viewing hours, but added that the censure was "plainly wrong".

He said it was appropriate for TV programs to be subject to a code of practice, which requires impartiality. But he added that such a code must not unlawfully restrict the right to freedom of speech and expression.

Justice Hartmann said that the program was not designed as a vehicle to advocate any particular point of view regarding same-sex marriage.

"The program, more correctly, was a study of human condition," he said.

He said impartiality is a broad concept, which demands only that the subject matter of the program is dealt with fairly and without prejudice.

"RTHK did no more than faithfully recording the fears, hopes, travails and aspirations of persons who happened to be gay. It did so faithfully, in an unprejudiced manner. In that sense, it is manifest, I think, that the presentation was impartial," he said.

He added that requiring all programs dealing with factual issues to preserve due impartiality was somewhat surprising.

"I say that the requirement is somewhat surprising because, for example, not all matters of public policy can, in any sensible way, allow for due impartiality if that term is to mean that 'both sides of the story' must always be put. How are 'both sides of the story' to be put in a RTHK program dealing with fight against bird flu or child slavery?" he said.

Cho welcomed the judgment, saying it gives a fair treatment to the gay community and will help them with their fight for gay rights.

He also said the judgment will alleviate media worries when they produce similar programs in future.

A spokesman for RTHK said the broadcaster will not avoid sensitive topics after this.

The spokesman said the broadcaster would continue to be regulated by the authority, as stipulated in an agreement signed between RTHK, the authority and the government in 1995.

A spokesman for the authority said they would study the judgment and would not make any comments.

(HK Edition 05/09/2008 page1)