Civil Liability for Invasion of Privacy

This consultation paper can be found on the Internet at: http://www.info.gov.hk during the consultation period.

This Consultation Paper has been prepared by the Privacy sub-committee of the Law Reform Commission. It does not represent the final views of either the sub-committee or the Law Reform Commission, and is circulated for comment and criticism only.

The sub-committee would be grateful for comments on this Consultation Paper by 30th November 1999. All correspondence should be addressed to:

It may be helpful for the Commission and the sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential.

Anyone who responds to this Consultation Paper will be acknowledged by name in the subsequent report. If an acknowledgement is not desired, please indicate so in your response.

THE LAW REFORM COMMISSION
OF HONG KONG

SUB-COMMITTEE ON PRIVACY

CONSULTATION PAPER

Chapter	*Page*

Preface	1

1. The right to privacy	4

International Covenant on Civil and Political Rights	4
United Nations report on privacy	4
The Hong Kong Bill of Rights Ordinance	5
The Basic Law of the Hong Kong Special Administrative Region	5
Definitions of “privacy”	7
Functions of privacy	12
Conclusion	15

2. The right to privacy and freedom of expression	16

Introduction	16
Freedom of expression	17
Reconciling privacy with freedom of speech	24
Freedom of the press	28
Freedom to seek, impart and receive information	32
Freedom of expression on the Internet	33
Privacy in networked communications	34

3. Remedies under the Personal Data (Privacy) Ordinance	37

Data Protection Principles	37
Administrative remedy	38
Civil remedy	38

4. Protection of privacy at common law	40

Introduction	40
Trespass to land	40
Private nuisance	43
Breach of confidence	44
Infringement of copyright	46
Breach of contract	47
Intentional infliction of emotional distress	47
Defamation	48
Malicious falsehood	49
Kaye v Robertson	49
Concluding remarks	51

5. The law of privacy in other jurisdictions	52

Australia	52
Canada	53
China	54
France	55
Germany	56
Ireland	56
New Zealand	57
United Kingdom	57
United States	60
Concluding remarks	62

6. Arguments for and against the creation of a general tort of privacy by statute	63

7. Intrusion upon the seclusion or solitude of another	70

The Basic Law of the Hong Kong Special Administrative Region	70
Need for protection from intrusion upon privacy	71
Intrusion upon the “solitude” or “seclusion” of another	73
Intrusion	75
Physical intrusion	76
Non-physical intrusion	76
Aural surveillance	77
Visual surveillance	79
Aerial surveillance	81
Intrusion into the private affairs or concerns of another	81
Harassment	81
Intrusion and the acquisition of personal information	82
The basis of liability	82
Offensiveness to a reasonable person	83
Conclusion	83
Practical examples of reasonable expectations of privacy	84
(a) Privacy in public toilets	84
(b) Privacy in the workplace	85

8. Public disclosure of private facts	96

The need to restrain unwanted publicity	96
Private facts	98
Disclosure of information obtained by unlawful means	102
Public disclosure	104
Offensiveness to a reasonable person	106
Personal Data (Privacy) Ordinance	106
Conclusion	109

9. Appropriation of a person’s name or likeness	111

Unauthorised use of a person’s personality at common law	111
Other jurisdictions	112
Is appropriation of a person’s name or likeness a privacy concern ?	114
Use of personal data in advertisements	118
Conclusion	121

10. Publicity placing an individual in a false light	122

Introduction	122
Distinction between false light tort and defamation	123
Is publicity placing someone in a false light a privacy concern ?	124

11. Defences	127

Consent	127
Consent to intrusion	127
Consent to public disclosure	133
Lawful authority	135
Protection of person or property	135
Absolute or qualified privilege	136
Information in the public domain	137
Public records	138
Publication of private facts previously made known	140
Privacy of offenders	143
Anonymity of victims of sexual offences	144
Anonymity of victims of non-sexual crime	145
Anonymity of former offenders	147
Public interest	149
Newsworthiness	151
Public figures	152
Voluntary public figures	153
Involuntary public figures	154
The “mores test”	155
Matters of legitimate concern to the public	155
Crime and fraud	156
Seriously improper conduct	157
“Public dishonesty” and serious malpractice	158
Conduct of officers in public bodies and public companies	161
Matters dangerous to public health or safety	161
Matters of legitimate concern “to the public”	162
Relevance of legality of acquisition to liability for disclosure	164
Relevance of public interest disclosure to liability for intrusion	164
Relevant considerations which ought to be taken into account by the courts	164
Civil remedies attached to criminal offences	166

12. Enforcing the right to privacy	167

Proof of damage	167
Damages	167
Injunction	169
Published apology	171
Account of profits	171
Delivery up	172
Recommendations	173
Form of trial	174
Limitation period	175
Parties to actions for invasion of privacy	176
Admissibility of evidence obtained through invasion of privacy	177
Relationship between the new remedies and existing remedies	179
Level of court	179

13. Summary of recommendations	180

Annex - Breach of confidence	185

Hong Kong Law Reform Commission

THE LAW REFORM COMMISSION OF HONG KONG

SUB-COMMITTEE ON PRIVACY

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CONTENTS

Chapter

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