“The fact that there has been a lapse of time, even of considerable length, since the event that has made the plaintiff a public figure, does not of itself defeat the authority to give him publicity or to renew publicity when it has formerly been given. Past events and activities may still be of legitimate interest to the public, and a narrative reviving recollection of what has happened even many years ago may be both interesting and valuable for purposes of information and education. Such a lapse of time is, however, a factor to be considered, with other facts, in determining whether the publicity goes to unreasonable lengths in revealing facts about one who has resumed the private, lawful and unexciting life led by the great bulk of the community. This may be true, for example, when there is a disclosure of the present name and identity of a reformed criminal and his new life is utterly ruined by revelation of a past that he has put behind him. Again the question is to be determined upon the basis of community standards and mores. Although lapse of time may not impair the authority to give publicity to a public record, the pointing out of the present location and identity of the individual raises a quite different problem.”[481]

11.47 The English Law Commission noted in the context of breach of confidence that the public domain principle was inappropriate where personal information was in issue:

“Much information which is technically available to the public is not generally known and may in fact be known only to a handful of people. For example, the back files of a local newspaper may, if properly and assiduously searched, yield a good deal of information not generally known about a person who spent his early life in the area - his family and educational background, his business connections, his political beliefs and his personal and social problems. Perhaps they show that he was at the centre of an unfortunate affair at his school, that he attempted to take his own life, that he took part in a political demonstration in favour of an unpopular cause, that he associated in his business or private life with someone later convicted of grave crimes against society or even that he ‘helped the police’ with their inquiries into an offence with which he was never charged. These facts will, of course, be known to and remembered by those who were directly involved, but if the publication took place a long time ago it is quite possible that nobody now knows or remembers them solely by reason of the publication in the local newspaper.”[482]

11.48 The English Law Commission was of the opinion that a person who disclosed in breach of his duty of confidence facts which could be found in the backfiles of a local newspaper should not be allowed to avoid liability by arguing that the facts were technically accessible to the public. In its Working Paper on Breach of Confidence, the Commission proposed that personal information, as opposed to commercially exploitable information, should not be regarded as being in the public domain unless:[483]

“(i) the information can be ascertained by recourse to any register kept in pursuance of any Act of Parliament which is open to inspection by the public or to any other document which is required by the law of any part of the United Kingdom to be open to inspection by the public; or

(ii) the information was disclosed in the course of any proceedings, judicial or otherwise, which the public were by the law of any part of the United Kingdom entitled to attend.”

11.49 In its final report on Breach of Confidence, the English Law Commission expresses the view that “the fact that such information can be extracted from the back files of a newspaper which are available for reference at a public library will not mean that the information which a search of these files might produce is itself to be regarded as in the public domain if such a search would involve a significant expenditure of labour, skill or money.”[484]

11.50 We agree that if a significant amount of labour, skill or money is required to make it reasonably possible to gain access to the private facts, the facts should not be treated as in the public domain even though they are technically accessible to the public. As far as personal data on the Internet are concerned, since Internet service is made available at a modest cost to anyone with a computer terminal and the cost of performing a search on the Internet is negligible, the plaintiff in a privacy action would not be able to argue that personal data on the Internet is not in the public domain by relying on this ground.

11.51 The law of breach of confidence regards confidential information as having reached the public domain if there has already been considerable coverage in the newspaper or on television. In the information age, sensitive personal data may be posted on a public “newsgroup” on the Internet by a subscriber outside Hong Kong without the individual’s consent. A journalist who discovers the data by performing a search on the Internet might publish them in a newspaper. The data may have never been viewed or retrieved by anyone in Hong Kong. But if the data are held by the court to be in the public domain once they are posted on the Internet, anyone in Hong Kong, including the newspapers and broadcasters, may republish it without being held liable for infringing the privacy of the individual even though the publication does not serve any public interest.

11.52 The mere fact that someone in other parts of the world knows the private facts in question does not necessarily mean that the facts are in the public domain. In Franchi v Franchi,[485] Cross J referred to an American case in which the court held that the fact that a German and a Dutch firm had complete knowledge of the process which one of the defendants had disclosed to the other defendant was no bar to a claim for unauthorized disclosure of trade secrets. But in Attorney General v Guardian Newspapers Ltd (No 2),[486] Scott J, noting that the information in respect of which an injunction was sought was already available in countries outside the United Kingdom, observed that “a duty of confidence that operates to keep away from the mass of the people information which is freely available to the more sophisticated or better off is not, I think, a duty that a court of equity would be likely to construct.”[487] His observation could equally be applied to personal information available only to “the more sophisticated or better off” who have access to a computer terminal with connections to the Internet.

11.53 We think that whether the private facts in question are in the public domain is a matter of degree depending on the circumstances of the case. In determining whether a certain piece of information is in the public domain, the court would have to take into account the extent to which it was generally known or was readily accessible to the public. Where the information has been made available to some in Hong Kong, the plaintiff would have to demonstrate that he has a privacy interest within the jurisdiction of Hong Kong that ought to be protected by law. We conclude that where private facts concerning past events have been publicised, the publisher should not be held liable if it could show that the facts could be found in a public record which was readily accessible to the public, or otherwise had come into the public domain through no fault of his own.

Privacy of offenders

11.54 Although certain aspects of the private life of offenders may be exposed in court process, it would be contrary to the principle of open justice if the press were not allowed to report the identities of offenders.[488] The right to privacy has to give way to the principle that every court is open for citizens to see that justice is being done. The details of a public trial are “necessarily and legitimately made public and being public property may be republished”.[489]

11.55 Two years ago, the press and the general public were told that they did not have a right to request access to charge sheets and indictments kept at the magistrates’ court and the Supreme Court. The Judiciary explained that these court documents were treated as “privileged information” in order to protect the privacy of defendants. Only “interested parties” such as lawyers and defendants were permitted to see the documents in full. The press feared that the trial of senior government officials and other politically sensitive figures would escape public attention if the charge sheets were withheld from public scrutiny. Eventually, the Privacy Commissioner advised that the names and addresses of defendants and the charges they face are matters of public record. He considered it reasonable to disclose the defendant’s name, age, address, profession and charges for the purposes of open justice.[490] As it is in the public interest that justice is seen to be done, the public has a right to know the identity of defendant and the nature of the alleged offence once a charge is laid. We may mention in passing that the court may, in practice, request the reporters not to report certain details of the case before it where serious allegations which are groundless have been made against an individual in court.

Anonymity of victims of sexual offences

11.56 Sections 156 and 157 of the Crimes Ordinance (Cap 200) make it an offence to publish any matter which is likely to identify any person as the complainant of a “specified sexual offence”. The judge may direct that the prohibition does not apply in relation to the complainant if the direction is required for the purpose of inducing persons to come forward as witnesses and the conduct of the defence is likely to be substantially prejudiced if the direction is not given.[491] “Specified sexual offence” is defined as meaning any of the following:[492]

“rape, non-consensual buggery, indecent assault, an attempt to commit any of those offences, aiding, abetting, counselling or procuring the commission or attempted commission of any of those offences and incitement to commit any of those offences”.

11.57 This definition does not cover all the sexual offences. We are concerned that the following sexual offences under the Crimes Ordinance are omitted from the definition:

Anonymity of victims of non-sexual crime[495]

11.60 Newspaper reports containing the names and addresses of victims can cause embarrassment or grief to them and their family members. This is particularly the case when the plight of the victims is publicised only to satisfy the public’s thirst for gossip and sensational journalism. The offenders might also commit further offences against the victims if the victim’s whereabouts is exposed. There is therefore a case to argue that the statutory prohibition under section 156 of the Crimes Ordinance should be extended to all victims of crime. The Calcutt Committee recommended that the criminal courts should have the power to make an order prohibiting the publication of anything likely to lead to the identification of a victim of an offence, provided that this is reasonably necessary to protect the mental or physical health, personal security or security of the home of the victim.[496]

11.61 Paragraph 9 of the Victim’s Charter promulgated by the Hong Kong Special Administrative Region Government provides:

“All those involved in the criminal justice system, from police officer to judiciary staff, shall respect the victims’ right to privacy and confidentiality. Consideration shall be given in appropriate cases to asking the court to accept a written note of the victim’s address when giving evidence, rather than providing this orally in court. ... In cases where victims are justifiably apprehensive as to what may happen to them or their family or friends if they give evidence in open court, or in respect of offences of sexual abuse, an application can be made to the judge hearing the case for the victim to testify from outside the court by way of a video link.”

11.62 A court has a wide inherent jurisdiction to control the proceedings before it. It has power to make anonymity orders for the purpose of protecting the due administration of justice.[497] Hence, in exercise of control over the conduct of proceedings, a court may decide to sit wholly or partly in camera, or direct that a witness be referred to by letter or number to conceal his identity.[498] But a person who makes public that which has been concealed in court does not necessarily commit a contempt of court. Lord Diplock stated in Attorney-General v Leveller Magazine Ltd:[499]

“[A] ‘ruling’ [or ‘order’] by the court as to the conduct of proceedings can have binding effect as such within the courtroom only, so that breach of it is not ipso facto a contempt of court unless it is committed there. Nevertheless where (1) the reason for a ruling which involves departing in some measure from the general principle of open justice within the courtroom is that the departure is necessary in the interests of the due administration of justice and (2) it would be apparent to anyone who was aware of the ruling that the result which the ruling is designed to achieve would be frustrated by a particular kind of act done outside the courtroom, the doing of such an act with knowledge of the ruling and of its purpose may constitute a contempt of court, not because it is a breach of the ruling but because it interferes with the due administration of justice.”

11.63 Although the court has a common law power to make an order directing that the identity of a victim should not be publicised, that power is exercisable only if it is necessary in the interests of the due administration of justice, and not for the purpose of protecting the victims’ privacy. There are therefore cases where the victim’s private lives have to undergo public scrutiny notwithstanding that he has already been unfortunate enough to suffer at the hands of the accused.

11.64 We are of the opinion that a victim’s privacy should be protected in so far as it would not prejudice the interests of justice. Article 10 of the Hong Kong Bill of Rights expressly provides that the press and the public may be excluded from all or part of a trial “when the interest of the private lives of the parties so requires”.[500] We agree that it is desirable to have specific provisions protecting the privacy of victims of non-sexual offences. There are cases where the identity of victims ought to be protected from publicity even though the offence with which the defendant is charged is not a sexual offence. For example, the victim may have contracted AIDS or have become impotent as a result of the defendant’s unlawful act. The privacy interests of victims in such cases are analogous to those of victims of sexual offences. We think that protecting the privacy interests of the former is consistent with the principle underlying the protection of victims of sexual offences. Without derogating from the common law power to make an anonymity order to protect the due administration of justice, the court should have the power to direct that the identity of a victim of crime should not be publicised outside the courtroom.

Anonymity of former offenders[501]

11.65 We think that criminal convictions are public records the publication of which should not be restrained on the ground that that publication is a breach of privacy. But some commentators have argued that persons who have been convicted of minor offences should have a right to have their criminal records forgotten. They contend that public knowledge and increased awareness of a particular crime may be gained by discussing past records without revealing the identities of the offenders. Divulging such records would shatter the newly found respectability of former offenders and may ruin their future and cause their friends and relatives to shun them.

11.66 Existing law recognises that rehabilitation of offenders can be just as important as truth in reporting materials available in the public domain. Section 2 of the Rehabilitation of Offenders Ordinance (Cap 297) authorises the expiry of a first conviction if it is an offence in respect of which the offender was not sentenced to imprisonment exceeding 3 months or to a fine exceeding $10,000. Three years must elapse before the conviction becomes “spent”. Once a conviction has become “spent”, no evidence is admissible in any proceedings which tends to show that the offender was so convicted. The effect is that a person who discloses another person’s previous conviction which falls within the scope of the Ordinance would be liable to that person in defamation.

11.67 The United States court in Briscoe v Reader’s Digest Association Inc[502] attempted to balance the right to know and the interest of an individual to have others not knowing that he has been convicted of a crime. It held that free speech does not require total abrogation of the right of privacy. In striking the right balance between the two conflicting interests, the trier of fact has to take the following factors into account:

(a) whether the plaintiff had become a rehabilitated member of society;
(b) whether identifying him as a former offender would be highly offensive and injurious to a reasonable man;
(c) whether the defendant published this fact with a reckless disregard for its offensiveness, and
(d) whether any independent justification for printing the plaintiff’s identity existed.

11.68 In the German case of Lebach,[503] the person who was depicted in a documentary play of a television station had been convicted as an accessory to an armed robbery. He was soon to be released from prison because his rehabilitation had made good progress. The German court held that the report would seriously endanger his rehabilitation. The interest of the community in restoring his social position outweighed the need to re-open discussion of the crime. Basil Markesinis explains the position in Germany in the following terms:[504]

“The Constitutional Court ... noted the wider interest of ‘reintegrating the criminal into society’. The time and purpose of the publication is another factor[505] (which, arguably, is included in the fourth factor given by Briscoe) and this, too, must be taken very carefully into account. A sensational, one-sided or inaccurate account ... is likely to receive less protection than one which is clearly aimed at satisfying the legitimate desire of the public to be informed and educated.”

11.69 The difficult question is whether the law should permit the publication of forgotten criminal records in the absence of any legitimate public interest. We agree that publicizing a person’s criminal records for no good reason constitutes an interference with his “private life”. However, the publication of criminal records raises issues which go beyond the “privacy” of former offenders in such records. In the opinion of Raymond Wacks, the statutory right not to have divulged a “spent conviction” protect reputation rather than privacy:

“The [Rehabilitation of Offenders Act’s] main objective is to mitigate the difficulties encountered by a convicted offender when he returns to society and, in particular, seeks employment. The prejudice against such a person, even though he may have ‘gone straight’ has required the law to permit him, after the passage of a specified number of years, to deny that he was ever convicted. Moreover, should his conviction be disclosed, thereby diminishing the esteem in which he is held by right thinking members of society, he may sue for defamation and, provided the publisher acted with malice, recover damages for this truthful account. Strictly speaking, therefore, the protection of ‘privacy’ is not involved. It is also arguable that the commission of an offence and the subsequent trial and conviction (or acquittal) of the defendant are anyway matters of public record and public interest. Thus not only does the question of rehabilitation of offenders relate to protecting the reputation of the victim of the disclosure, but the disclosure is of a public rather than a ‘private’ fact.”[506]

11.70 We think that a person who has published the previous conviction of a former offender should not be liable for invasion of privacy. Judgments rendered in open court are information in the public domain. The fact that they are matters of public record prevents such convictions from being private. Besides, the aim of the Rehabilitation of Offenders Ordinance is to rehabilitate offenders, not to protect the privacy of offenders. If a person publicises a person’s previous conviction which has already been “spent” under the Ordinance, the former offender may seek relief against the publisher in defamation. We have therefore decided not to examine the protection available under the Ordinance any further.

Public interest[507]

11.71 Despite the many benefits which privacy can provide to individuals and society, the right to privacy is not absolute. A right to privacy which does not accommodate other legitimate public concerns would create dangers to a society.

11.72 The right to claim relief for an invasion of privacy based on disclosure of private facts has to be reconciled with the Basic Law concerns of free speech and press freedom. A balance has to be struck between the interest in protecting individual privacy and the interest in the dissemination of information which are matters of “public interest”. There are three possible meanings of “public interest”:[508]

“The public are interested in many private matters which are no real concern of theirs and which the public have no pressing need to know. ... [The] media have a private interest of their own in publishing what appeals to the public and may increase their circulation or the numbers of their viewers or listeners; and ... ‘they are peculiarly vulnerable to the error of confusing the public interest with their own interest’[510].”

11.75 There is nothing improper in publishing or broadcasting matters which are not of legitimate public interest but are nevertheless interesting to the public. But the means of acquiring such materials must not be intrusive nor should the publication of such interfere with an individual’s private life.

11.76 Treating “public interest” as the promotion of the common good is also unacceptable. It would involve the courts in carrying out an inquiry as to what is good for the public to know. We believe that the second meaning would strike the right balance in meeting the legitimate demands of both individuals and society.

11.77 The public interest defence may be formulated in general terms. For example, Brian Walden’s Privacy Bill provided that a defendant who had infringed another’s right of privacy by the publication of any words or visual images should not be held liable if “there were reasonable grounds for the belief that such publication was in the public interest”.[511] But framing the defence in general terms such as “the publication was in the public interest” could create problems in practice. The Australian Law Reform Commission stated:

“The court would be judging, with the benefit of hindsight, whether it had been in the public interest to publish the particular material, the content of the material being only one matter to be considered. This would hardly be fair to publishers, who need to judge the justification of publication in advance. Secondly the phrase ‘public interest’, without more, would cause uncertainty until the courts had built up some new law indicating content to be given to the expression in this new field. Specific provision should be made for the most important topics of public interest. If publishers have material covered by that category they will be relieved of doubt as to the existence of a defence.”[512]

11.78 The Calcutt Report also had reservations about a general defence merely labelled “public interest”. It concluded that “public interest” in these bald terms is not helpful in determining whether an intrusion is or is not justified. The term means different things to different people. A defence to cover the justified disclosure of personal information would have to be “tightly drawn and specific”.[513]

Newsworthiness

11.79 The publication of “newsworthy” information is held by the American courts to be privileged under the First Amendment to the Constitution.[514] Some courts have adopted a three-part test to determine newsworthiness: (a) the social value of the facts published; (b) the depth of the intrusion into ostensibly private affairs; and (c) the extent to which the party voluntarily acceded to a position of public notoriety.[515] The social value of the facts is the most important factor in determining newsworthiness.

11.80 We consider that a test of newsworthiness would be difficult to apply. It is not easy to distinguish news which is “newsworthy” and that which is not. Anything that is published in the press is by definition “newsworthy”. All information is potentially useful in one way or another in forming attitudes and values. Such a test would therefore give exclusive weight to press freedom and fail to give sufficient guidance to the news media and the courts. Diane Zimmerman observes that the privilege in some jurisdictions has had the practical effect of demolishing the disclosure tort because “[m]any [American] courts, despairing of their ability to make such determinations in a principled way, have ultimately deferred to the media’s judgment of what is and is not newsworthy.”[516] In Gertz v Robert Welch Inc, Powell J commented that the use of a newsworthiness test “would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest’ and which do not - to determine ... ‘what information is relevant to self-government.’ ... We doubt the wisdom of committing this task to the conscience of judges.” [517]

Public figures

11.81 Some journalists justify their privacy-invasive actions by reference to the status of their target. They argue that targets who are treated as public figures have either less privacy or have forfeited their right to privacy by entering the public arena. Should a person receive more or less privacy protection because he is a public figure? If a public figure is entitled to less protection, to what extent may his private life be legitimately exposed?

11.82 In a survey carried out by the Social Sciences Research Centre of the University of Hong Kong,[518] 91.6% of the respondents thought that public figures and celebrities should enjoy the same level of privacy as ordinary citizens. When asked whether the privacy of celebrities or the public’s right to know is more important, 40.4% responded that the two were of equal importance. Another 28.3% said the privacy of celebrities was more important. Only 21.7% said the public’s right to know was more important.

11.83 The Nordic Conference on the Right to Privacy acknowledges that the line of demarcation between the interest protected by freedom of expression and the interest protected by the right to privacy is very difficult to draw where public figures are involved:[519]

“Certainly it cannot be drawn in the simple terms of the axiom that where public life begins, private life must end. The private life of public figures is entitled to immunity save where it can be shown to impinge upon a course of public events. Even less acceptable is the axiom that ‘being in the news’ of itself justifies intrusion on private life. It would be undesirable and indeed impossible to provide for all cases by legislation; but it may be insufficient to rely exclusively upon the self-discipline of the Press and other mass media or upon rules of conduct laid down by the professional organisations concerned.”

11.84 We agree that the legislation should give some guidance in this area. The reasonableness of publishing the same set of private facts may depend on the subject matter under discussion and the status of the person concerning whom the facts are published. Thus, some private facts relating to a person who is active in public life may be published without liability even though the same may not be true as regards an ordinary individual. Warren and Brandeis explained:

“Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se. To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety.”[520]

“In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity.”[521]

Voluntary public figures

11.85 In Gatley on Libel and Slander, the authors state that the private character and conduct of a person who fills a public office or takes part in public affairs may be the subject for fair comment for the purposes of the tort of defamation “in so far as it has reference to or tends to throw light on his fitness to occupy the office or perform the duties thereof, but not otherwise.”[522] An Australian court held that “[t]he mere fact that a man is a politician or is engaged in some occupation which brings him into public notice is not of itself enough to make his private life a matter of public interest so as to justify the kind of defamatory comment to which, so far as his public activities are concerned, he must submit as one of the incidents of his position.”[523] We think that the same remarks should also apply to disclosures of private facts which are true and not defamatory. In respect of disclosures concerning the private life of a public figure, the question posed is: how far are the disclosures relevant to his public role?

11.86 We agree with the views expressed in American Jurisprudence that those who expressly or impliedly submit themselves to public attention or criticism must accept that they have less privacy than others, at least as to legitimate reporting of facts concerning their public activities:

“A person who by his or her accomplishments, fame, or mode of life, or by adopting a profession or calling which gives the public a legitimate interest in his or her doings, affairs, and character, may be said to have become a public personage, thereby relinquishing at least a part of his or her right of privacy. ... [A]ny person who engages in a pursuit or occupation which calls for the approval or patronage of the public submits his or her private life to examination by those to whom he or she addresses his or her call, to the extent that may be necessary to determine whether it is wise and proper to accord him or her the approval or patronage which he or she seeks.”[524] (emphasis added)

11.87 The American Restatement makes a similar observation:

“One who voluntarily places himself in the public eye, by engaging in public activities, or by assuming a prominent role in institutions or activities having general economic, cultural, social or similar public interest, or by submitting himself or his work for public judgment, cannot complain when he is given publicity that he has sought, even though it may be unfavourable to him. So far as his public appearances and activities themselves are concerned, such an individual has, properly speaking, no right of privacy, since these are no longer his private affairs.”[525] (emphasis added)

11.88 We are of the opinion that the publication of private facts concerning an individual which are wholly unconnected with his fitness for a public office or profession or his ability to discharge public or professional duties should generally be suppressed. The mere fact that he is a public figure should not deprive him of protection if the press gives publicity to his private activities or behaviour which has no relevance to his public or professional role.

Involuntary public figures

11.89 There are also individuals who have not sought publicity or consented to it, but through their own conduct or by force of circumstances, have become part of an event of public concern. The privacy rights of such persons are forfeited but only with respect to that event. Hence, those who have committed crime and those who are unfortunate enough to be victims of crime or accidents may become a legitimate subject of public interest.[526] Nonetheless, it should always be borne in mind that the media should not exceed the bounds of reasonableness and infringe upon the privacy of victims of crime or accidents in the absence of an overriding public interest.

The “mores test”

11.90 Although it is generally true that people are curious as to their leaders, villains, victims and celebrities, the fact that a person is in the public eye, whether voluntarily or not, does not provide a carte blanche to expose all the intimate details of his private life before the whole world. The Restatement suggests that a “mores test” should be adopted to determine whether the matter publicised is a matter of legitimate public concern:

“There may be some intimate details of her life, such as sexual relations, which even the actress is entitled to keep to herself. In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. The limitations, in other words, are those of common decency, having due regard to the freedom of the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will be done to him by the exposure.”[527]

11.91 We agree that the fact that the publication is lurid or indecent, or is primarily designed to appeal to prurient interest or sensationalism, is a factor in determining whether it can be justified as a matter of public interest.

Matters of legitimate concern to the public

11.92 In determining whether public disclosure of private facts could be justified on the grounds of public interest, we should look to the nature of the subject matter as well as to the status of the individual in relation to whom the private facts are disclosed. The mere fact that the individual is a public figure is not conclusive. We need to go further and examine whether the publicised matter concerning that particular public figure is a matter of genuine public concern. We believe that the public interests in privacy and free speech can be harmonized by providing a defence to an action based on public disclosure of private facts where the matter publicised is of legitimate concern to the public. Requiring that the interest be a matter of “legitimate public concern” would avoid any ambiguity that would arise from using the term “public interest”. The right of privacy must give way when it is necessary to ensure the “uninhibited, robust, and wide-open” discussion of legitimate public issues.[528] This defence is not relevant to an action for invasion of privacy by intrusion into the privacy of the plaintiff’s life where no publication is involved. The rationales for the free speech principle which justify disclosure of private facts do not apply to intrusion which interferes with an individual’s private life.[529]

11.93 In order to address the concern that a widely phrased defence of public interest would create uncertainty and would give insufficient guidance to the courts and the public,[530] we agree that the most important matters of public concern should be stated in the legislation. In forming our views on the legitimate public concerns which would justify an invasion of privacy based on public disclosure, we have made reference to the case law on disclosure in the public interest at common law.[531]

11.94 In actions for breach of confidence, the defendants may argue that the disclosure in question is in the public interest by claiming that he has “just cause or excuse” for doing so.[532] In the opinion of Ungoed-Thomas J, this defence does not extend beyond misdeeds that are clearly recognisable as being of a serious nature and importance to the country. He said that the defence of public interest covers “disclosure ... of matters carried out or contemplated, in breach of the country’s security, or in breach of law, including statutory duty, fraud, or otherwise destructive of the country or its people, including matters medically dangerous to the public and doubtless other misdeeds of similar gravity.”[533]

Crime and fraud

11.95 In Gartside v Outram, the court held that there was no confidence as to the disclosure of “iniquity”.[534] Conduct which has been regarded as iniquitous has generally been limited to matters of crime and fraud.[535] In Khashoggi v Smith,[536] the Court of Appeal held that there could be no right of confidence where the information was to be used for the purposes of an investigation into the commission of an offence. Although the confidential information in that case concerned the private life of the plaintiff, “both matters are so closely interwoven ... [that] it becomes very difficult to see where the line can be drawn between investigations of that matter and investigation of other matters allegedly affecting her character and maybe her credibility, which are, to my mind, linked with the matters which the [newspaper] wish to investigate.”[537]

Seriously improper conduct

11.96 Browne-Wilkinson VC in Stephens v Avery stated that the law of confidence and copyright would not protect “matters which have a grossly immoral tendency”.[538] Disclosure of immoral information may be protected under the ex turpi causa non oritur actio principle[539] or under the equitable maxim that “he who comes to equity must come with clean hands”.[540] In Initial Services Ltd v Putterill, the defendant handed to the Daily Mail documents about a price-fixing agreement and the plaintiffs’ allegedly misleading circular. The defendant claimed that the agreement should have been made available to the public by virtue of registration under the Restrictive Trade Practices Act 1956. Lord Denning MR stated:

“I do not think that an employer can say to a servant: ‘I know we are issuing misleading circulars but you are to keep quiet about it, and if you disclose it, I shall sue you for damages.’ The servant may well be justified in replying: ‘I cannot stand such conduct. I will leave and let the public know about it, so as to protect them.”[541]

In his judgment, the exception to an obligation of confidence extended to any misconduct which is of such a nature that it ought in the public interest to be disclosed to others. This should extend to “crimes, frauds and misdeeds, both those actually committed as well as those in contemplation”.[542]

11.97 The Personal Data (Privacy) Ordinance exempts data relating to the prevention, preclusion or remedying of “seriously improper conduct” for the purposes of the use limitation principle.[543] “Seriously improper conduct” is defined in the Ordinance as including:[544]

(i) conduct whereby a person ceases or would cease to be a fit and proper person for any office, profession or occupation which is required by law to be held, engaged in or carried on by a fit and proper person; and

(ii) conduct whereby a person has or could become a disqualified or suspended person under the Rules of Racing and Instructions by the Stewards of the Hong Kong Jockey Club.

11.98 We believe that defendants in privacy actions for publication of private facts should not be held liable if the facts reveal seriously improper conduct on the part of the individual to which the facts relate. Mark Berthold and Raymond Wacks suggest that the reference to “seriously improper conduct” in the Ordinance embraces a broad range of regulatory activity focusing on behaviour which is not unlawful as such, including “the enforcement of regulatory codes of conduct, disciplinary proceedings, and the regulation of other behaviour that may have escaped formal inclusion in codes or disciplinary rules but is nevertheless such that it is not tolerated by the community generally or the professional sector concerned”.[545] We think that this statement serves as a good pointer to what constitutes “seriously improper conduct”.

“Public dishonesty” and serious malpractice

11.99 Although most individuals prefer to keep private their dishonest behaviour and wrongdoing, “the cohesiveness and durability of any social organization depends upon the ability of its members to evaluate each other accurately and to use their observations to exert, modify, or develop social controls.”[546] Zimmerman therefore argues that a person who reveals the truth about another’s character helps to preserve the foundations of the society.[547] Some even go so far as to argue that privacy laws would only protect those who have something to hide. Richard Posner observes that many people seek privacy because they want to conceal discreditable information about themselves, thereby misleading those with whom they have dealings; and that even if the information is not discreditable, they may wish to keep it secret in order to exploit any misapprehensions which others may have about their them. He therefore contends that legal protection should not be accorded to discreditable information about an individual and personal information which, if revealed, would correct misapprehensions that the individual is trying to exploit. Restricting the disclosure of this information “is no better than that for permitting fraud in the sale of goods”.[548] He says:

“We think it wrong (and inefficient) that the law should permit a seller in hawking his wares to make false or incomplete representations as to their quality. But people ‘sell’ themselves as well as their goods. They profess high standards of behavior in order to induce others to engage in social or business dealings with them from which they derive an advantage but at the same time they conceal some of the facts that these acquaintances would find useful in forming an accurate picture of their character. ... [E]veryone should be allowed to protect himself from disadvantageous transactions by ferreting out concealed facts about individuals which are material to the representations (implicit or explicit) that those individuals make concerning their moral qualities.”[549]

11.100 We believe that those who hold the view that privacy law would protect the wrongful behaviour of scoundrels and fraudsters are misguided. Thomas Cooley, the person who coined the famous phrase “the right to be let alone”, wrote:

“The law has never conferred upon any one the right to be protected against the damaging effect of the truth concerning his character. If he has been enabled to put on a good outward appearance by covering himself with the mantle of hypocrisy, it is not illegal for public inquiry and contempt to tear this away. Dishonest man is not wronged when his good repute is destroyed by exposure.”[550]

11.101 Some have argued that since politicians and senior officials possess powers which are denied to the mass populace, the public and the media should have the right to know and to monitor the actions of politicians and officials in order to prevent them from abusing their power to the prejudice of the public interest.[551] We agree that politicians and government officials should be subject to public scrutiny and accountable to the public. But this object ought to be achieved through the electoral process, the various representative bodies, and other monitoring bodies such as the Office of The Ombudsman and the Independent Commission Against Corruption. The task of the media is not to enforce law but to see that the law is enforced. Nevertheless, it is essential that the media should be free to publicise any dishonest or seriously improper conduct on the part of any public figures if a matter of public interest is at stake.

11.102 In our opinion, the law of privacy should not restrain the disclosure of “public dishonesty”, that is, dishonest behaviour which amounts to a fraud on the public. “Dishonesty” is a very wide word. It may cover lies told by a husband to his wife that he had worked overtime in the office but in fact had spent the whole evening with his mistress in a hotel. Another example is a lie told by a clerical officer to his employer that he is in good health when in fact he has heart disease. Although the employer might have a claim against the clerical officer in contract, the lie is not a matter of public concern. Only hypocrisies which have a public element in them should be allowed to be exposed in the public eye. If a person who is seeking or holding public office misleads the public by telling them a lie about his private life which is relevant to his public role, the press should be free to report the truth in the newspaper. Hence, if a candidate for political office stands for family values and advocates the sanctity of marriage, the press should not be held liable for disclosing the fact that he keeps a mistress. The protection of privacy should not be abused by an individual who is guilty of double standards by suggesting to the public that he is a pillar of virtue and rectitude when the truth reveals that he is a person of dubious character.

11.103 A good example can be found in Germany. A report in a magazine gave a detailed account of the adulterous affairs of a publisher of a local newspaper who was depicted as a man of low morals. The Federal Supreme Court held that the action against the magazine failed because the publisher had held himself out as a moralist by repeatedly publishing in his own newspaper articles blaming political opponents for their moral indecency. Lorenz summarizes the ratio of the case by saying that “he who starts public discussions of this kind must not be surprised if the press puts his own private life to a public test. In doing so the press even fulfils an important political function because it contributes to the proper formation of public opinion on a matter of public concern.”[552]

11.104 In Woodward v Hutchins,[553] the court held that there was a public interest in the publication of articles about the private life of the singer Tom Jones. Lord Denning MR stated:

“If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected. ... As there should be ‘truth in advertising’, so there should be truth in publicity. The public should not be misled.”[554]

11.105 It is tempting to treat the Woodward case as authority for the proposition that it is in the public interest to reveal the truth about celebrities by virtue only of the fact that they sought publicity for their own advantage. Wacks comments that:

“While there may well be a public interest in the truth being told about a fraudulent or dishonest businessman, the same can hardly be said for the private proclivities of pop singers. Moreover, the extravagant or hyperbolic claims made in public relations literature (by no means restricted to entertainers) ought not to operate to destroy the claims of such public figures to maintain the confidentiality of those aspects of their lives upon which such publicity has little or no bearing.”[555]

11.106 We think that the proper approach is to draw a line between deceit and exaggerations in entertainers’ publicity statements.[556] Mere exaggerations in publicity should not justify public disclosure of private facts. As rightly pointed out by Megarry VC, the term “public interest” should not be used “in the sense of something which catches the interest of the public out of curiosity or amusement or astonishment, but in the sense of something which is of serious concern and benefit to the public.”[557] Exaggerations in entertainers’ publicity statements are not matters of public concern.

11.107 We believe that “public dishonesty” and serious malpractice are matters of serious public concern, the exposure of which are of benefit to society. Publication of private facts which reveal such matters should be exempt from liability for invasion of privacy.

Conduct of officers in public bodies and public companies

11.108 Organisations which are accountable to the public because they perform a public function or they seek public funds or membership from the general public fall within the public interest category. In British Steel Corporation v Granada Television Ltd, the unauthorized disclosure revealed that the British Steel Corporation was losing huge sums of money. The Corporation was a public body and the conduct of its affairs was regulated by statute. Lord Wilberforce said:[558]

“The legitimate interest of the public in knowing about its affairs is given effect to through information which [there] is a statutory duty to publish and through reports to the Secretary of State who is responsible to Parliament. That some of the internal activities of B.S.C. at particular times are of interest to the public there can be no doubt.”

11.109 As regards the conduct of government affairs, Mason J stated:

“It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize Government action. ... The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs.”[559]

11.110 In the context of individual privacy, we believe that private facts which relate to the ability of a person to discharge his public or professional duties and the fitness of a person for any public office or profession held or carried on by him are matters of legitimate public concern. “Public office” includes any office held by a Government official or a director or senior manager of a quasi-governmental body or a public company.

Matters dangerous to public health or safety

11.111 Sir Robert Megarry VC held that public interest was not confined to “misconduct or misdeeds”.[560] He expressed the view that the law should protect the disclosure of “confidential information [which] relate[s] to some apprehension of an impending chemical or other disaster, arising without misconduct, of which the authorities are not aware, but which ought in the public interest to be disclosed to them.”[561]

11.112 Personal information obtained in the course of doctor and client relationship may be disclosed if this is justified in the public interest. In Hubbard v Vosper, the court held that medical quackery which may be dangerous if practised behind closed doors were matters that ought in the public interest to be disclosed to the public even though the defendant was subject to an obligation of confidence.[562]

11.113 We believe that matters dangerous to public health or safety should be brought to the attention of the public even though this would constitute an invasion of privacy. It is recognised that in rare circumstances a matter dangerous to public health or safety may not be a matter of public concern. Such would be the case if but only if the danger has completely passed and cannot give rise to any risk of harm in the future.

Matters of legitimate concern “to the public”

11.114 It is important to choose an appropriate recipient if the disclosure were to be protected by the public interest defence. In certain circumstances, the public interest is “best served by an informer giving the confidential information not to the press but to the police or some other responsible body”.[563]

11.115 In Francome v Mirror Group Newspaper Ltd, the court refused to lift an injunction which prohibited the defendant from revealing in a national newspaper that the plaintiff had breached the Jockey Club rules. It held that “it is impossible to see what public interest would be served by publishing the contents of the tapes which would not equally be served by giving them to the police or the Jockey Club.”[564] Likewise, Scott J in another case held that an employee’s “undoubted obligation of confidence does not extend so as to bar the disclosures to [the Financial Investment and Management Brokers’ Regulatory Authority] and the Inland Revenue of matters that it is the province of those authorities to investigate”.[565] In W v Egdell,[566] the disclosure by a psychiatrist to the medical director of the hospital in which the patient was being treated was both in the public interest and in accordance with the professional code of conduct. Although the court held that the disclosure was protected by a public interest defence, it warned that he could not lawfully sell the contents of his report to a newspaper nor could he discuss the matter in a learned article unless he took appropriate steps to conceal the identity of the patient.[567]

11.116 Different considerations would apply if the police or other appropriate body is an interested party. In Lion Laboratories Ltd v Evans, one of the documents passed to the Daily Express revealed that the head of the plaintiff company’s calibration department expressed doubt whether the devices used by the police to measure the level of intoxication of motorists complied with the Home Office requirements. Griffiths LJ said that it was not an answer to say that the Daily Express should have had gone to the Home Office in the first instance rather than publish. “The Home Office is an interested and committed party.”[568]

11.117 The Sunday Times warned that privacy legislation would “enable well-heeled crooks to continue with their activities unimpeded” and “enable other scoundrels to have even greater protection from rightful exposure”.[569] They stated that any wide-ranging law of privacy would be “a meal ticket for every overpaid lawyer” and “there is little guarantee that politicians would not seek to use it to protect their own kind”. We tested their concerns against our proposals stated in the above paragraph. We are satisfied that the proposals would neither impinge on the legitimate functions of the press nor infringe the public’s right to know matters of genuine public concern. By allowing the publication of legitimate public concerns, “well-heeled crooks”, scoundrels, politicians and other public figures would not be able to escape from public scrutiny by relying on the disclosure tort. Contrary to the misguided and unfounded suggestions that any privacy legislation would undermine the freedom of the press and the public’s right to know, our proposals would safeguard and give due recognition to such rights and freedoms by providing for a public interest defence to the disclosure tort.

Relevance of legality of acquisition to liability for disclosure

11.118 We consider that in assessing the public interest in the public disclosure of private facts, the courts should not take into account the manner in which the private facts were acquired. Whether the means employed to collect private facts is lawful or not is a separate issue and should not be a factor in considering whether the defendant has a public interest defence to publication of facts collected by such means. In Liberty Lobby Inc v Pearson,[570] the plaintiff sought an injunction to prevent the defendant from publishing information which had been obtained in breach of trust. The American court held:

“The mere fact that a newspaper man obtained information in a clandestine fashion or in a surreptitious manner or because someone unguardedly and unwittingly reveals confidential information, or even through a breach of trust on the part of a trusted employee, does not give rise to an action for an injunction. The courts may not review the manner in which a newspaper man obtains his information and may not restrain the publication of news merely because the person responsible for the publication obtained it in a manner that may perhaps be illegal or immoral. It would be a far-reaching limitation on the freedom of the press if courts were endowed with power to review the manner in which the press obtains its information and could restrain the publication of news that is obtained in a way that the Court does not approve. If such were the law, we would not have a free press; we would have a controlled press.”[571]

Relevance of public interest disclosure to liability for intrusion

11.119 It has been suggested that any law of privacy should include the defence that the act of intrusion was committed in the course of investigations made with publication in the public interest in view. While the defence of legitimate public concern may be relevant in determining liability for the disclosure tort, the act of intrusion, as opposed to disclosure, involves different considerations. The media in the United States is protected by the First Amendment such that it may rely on the defence of newsworthiness in an action for public disclosure. But it would nevertheless be held liable for the intrusion tort if the facts disclosed have been obtained by privacy-invasive means.

11.120 In our opinion, the fact that the disclosure would be justified on one of the prescribed grounds should not preclude the court from holding the defendant liable for intrusion if he has used privacy-invasive means to collect the private facts. None of the justifications for freedom of speech discussed in Chapter 2 can be used to justify intrusions upon privacy.[572] Just as an ordinary citizen cannot search a person or break into a house in order to obtain information the publication of which may be justified in the public interest, so no journalist should be allowed to intrude upon another’s solitude or seclusion merely because the publication of the information to be obtained by the intrusion could be justified in the public interest. The publication of information, and the means of obtaining the information, should always be kept separate and distinct. The means of acquiring personal information and the publication of the information acquired by such means are separate issues which should not be conflated.[573] We conclude that in determining liability for invasion of privacy by intrusion, the courts should not take into account whether the disclosure of any information obtained by means of the intrusion in question can be justified on one of the grounds prescribed in the legislation.

Relevant considerations which ought to be taken into account by the courts

11.121 The courts are experienced in taking all the circumstances of the case into account in coming to a decision. A question arises as to whether statutory guidelines should be laid down to assist the courts in determining whether there has been an invasion of privacy. We consider that this would assist the litigants to assess their chances of success because they would then be able to apply the statutory criteria to the facts of the case. A useful example which covers some of the considerations which we think important is section 6(2) of the Saskatchewan Privacy Act. It provides that-

“in determining whether any act, conduct or publication constitutes a violation of the privacy of a person, regard shall be given to:

(a) the nature, incidence and occasion of the act, conduct or publication;

(b) the effect of the act, conduct or publication on the health and welfare, or the social, business or financial position, of the person or his family or relatives;

(c) any relationship whether domestic or otherwise between the parties to the action; and

(d) the conduct of the person and of the defendant both before and after the act, conduct or publication, including any apology or offer of amends made by the defendant.”

Civil remedies attached to criminal offences

11.122 The Younger Report acknowledged that the protection afforded by the creation of a criminal offence of surreptitious surveillance by means of a technical device would not suffice. It noted that in the case of overt surveillance, the victim is in a position to do something about it. In order to enable the victim to have it stopped and, where damage is suffered, to be compensated, the Report recommended the establishment of a cause of action at civil law.[574] The new tort would have the following elements:

[445] [1997] 2 HKC 525.
[446] (1971, CA9 Cal) 449 F2d 245; 1 Media LR 2417 (applying California law).
[447] 69 ALR 4th 1059, 1078.
[448] HKLRC, Report on Privacy: Regulating the Interception of Communications (1996), paras 4.67 - 4.86.
[449] Chaplin v National Broadcasting Co (1953, DC NY) 15 FRD 134; cited in 11 ALR3d 1296 at 1305.
[450] 355 US 107 (1957); cited in 11 ALR3d 1296 at 1300.
[451] Or breach of confidence in appropriate circumstances.
[452] 62A Am Jur 2d, Privacy, § 227.
[453] Sing Tao Daily, 1 September 1997.
[454] 22 September 1997.
[455] Hong Kong Economic Journal, 8 September 1997.
[456] The Sunday Telegraph, 14 September 1997.
[457] 62A Am Jur 2d, Privacy, § 197.
[458] Pavesich v New England Life Insurance Co, 50 SE 68.
[459] 62A Am Jur 2d, Privacy, § 203.
[460] See below.
[461] Para 142(vi). Cf Davis v McArthur (1971) 17 DLR(3D) 760.
[462] At p 216.
[463] Restatement 2d, Torts, §§ 652F and 652G; 14 ALR2d 750 §6.
[464] Defamation Ordinance (Cap 21), section 13.
[465] See Legislative Council (Powers and Privileges) Ordinance (Cap 382), sections 3 & 4. The privileges and immunities conferred on members of the Legislative Council by section 3 (freedom of speech and debate) and section 4 (immunity from civil and criminal proceedings) are extended to public officers designated for the purpose of attending sittings of the Council or any committee while so designated and attending such sitting: Cap 382, section 8A.
[466] The person to whom such a statement is made must have a corresponding interest or duty to receive it.
[467] An example is a statement made in defence of his own property. There must be an interest to be protected on the one side and a duty to protect it on the other.
[468] Defamation Ordinance (Cap 21), section 14.
[469] The UK Consultation Paper warned at para 5.49 that care had to be taken in drafting this defence: “to say that there is to be a defence if there would have been had the proceedings been brought for defamation suggests that if for some reason they could not have been brought in defamation (the obvious example being that the statement in question was true, which it probably would be under a new civil wrong) the defences will not be available.”
[470] Para 12.19.
[471] [1977] 2 All ER 751.
[472] [1977] 2 All ER 751, 755.
[473] 420 US 469 (1972).
[474] At 495.
[475] Department of National Heritage, Privacy and Media Intrusion (London: HMSO, Cm 2918, 1995), Annex B, paras 2(ii).
[476] Eg, section 41 of the Electoral Affairs Commission (Registration) (Electors for Functional Constituencies) (Voters for Subsectors) (Members of Election Committee) (Legislative Council) Regulation (LN 534 of 1997) provides that an extract from the functional constituencies register, subsector register or Election Committee final register must be used for a purpose related to the election for which it may be used.
[477] Eg, under section 42(3) of the Electoral Affairs Commission (Registration) (Electors for Functional Constituencies) (Voters for Subsectors) (Members of