The Ministry of Justice issued the Fa-Lu-10503510580 Circular of July 22, 2016 (hereinafter, the “Circular”) to communicate its consultation opinion concerning the issue of applying laws and regulation raised by the National Communications Commission regarding the requirement that the contents of programs and advertisements broadcast by radio and television operators shall not “violate compulsory or prohibitive legal requirements” under the three laws for the radio and television.
This Circular first points out that the requirement that the contents of programs and advertisements shall not “violate compulsory or prohibitive legal requirements” under Article 21 of the Radio and Television Law, Article 35 of the Cable Radio and Television Law and Article 27 of the Satellite Radio and Television Law does not violate the principle of clarity and definiteness of law since the scope of its regulation can still be ascertained. However, the determination of individual cases is still governed by the court.
This Circular further points out that if broadcasts of radio and television operators violate relevant laws and regulations, the competent authorities for relevant laws and regulations can still penalize such common legal violations based on the same facts of legal violation if the requirements under Article 14, Paragraphs 1 and 2 of the Administrative Penalty Law are met, even though such relevant laws and regulations do not contain provisions concerning specific obligations and penalties. If the competent authorities for such laws and regulations do not penalize radio or television operators, the National Communications Commission may still penalize them pursuant to the three laws for the radio and television.
If a communications enterprise violates such laws and regulations and its violations of the three laws for the radio and television are assessed as an “act,” this falls under the circumstance of an act which violates several administrative law obligations and should be dealt with pursuant to the requirement that “an act shall not be penalized twice” under Article 24 of the Administrative Penalty Law. However, whether the competent authority for each relevant law or regulation shall penalize a radio or television enterprise separately or the National Communications Commission should do so pursuant to the three laws for the radio and television is an issue of enforcing laws and regulations. It is advisable to have the National Communications Commission coordinate a solution or to seek clear stipulations through legal amendments.