Abuse of Dominance in the Hong Kong Television Sector

Abstract

This article critically evaluates legal developments in relation to the regulation of abuse of dominance in the Hong Kong television sector, focusing on the milestone case of Television Broadcasts Ltd (TVB). The TVB case was decided under the previous sectoral competition regime under the Broadcasting Ordinance (BO) and has since 2015 been replaced by the cross- sector Competition Ordinance (CO). Nevertheless, the decisions of the Communications Authority (CA) and the Court of First Instance (CFI) in 2013 and 2016 respectively provided important insights on the application of the small but significant and non-transitory decrease in quality (SSNDQ) test in two-sided markets and the ‘purpose/object’ and ‘effect’ tests to exclusivity practices, and more generally, the analysis of abuse of buyer power in a labour market setting. Hong Kong competition authorities are likely to be confronted with similar issues as they gradually expand their enforcement activities into digital markets and abuse of market power scenarios beyond the broadcasting sector. The purpose of this article is to subject the TVB decisions, in respect of their analysis of market definition, market power, the abusive conduct, and the remedial aspect, to in-depth critique. It situates the issues in the broader context of the cross-sector CO under which future cases of abuse of dominance in Hong Kong will be scrutinized.

Keywords: abuse of dominance, Hong Kong; television, TVB, SSNDQ, two-sided markets, exclusivity, abuse of buyer power, labour, remedy

JEL Classification: K21, L40, L41, L42