|
Hong Kong Law Reform Commission |
1.1 A useful starting point for a discussion of civil liability for
invasion of privacy is Article 17 of the International Covenant on Civil and
Political Rights (“ICCPR”). Article 17 provides:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks. ”
1.2 The
ICCPR imposes on the Hong Kong Special Administrative Region Government a
positive duty to protect the right of privacy. The Government is under an
obligation to adopt legislative and other measures to give effect to the
prohibition against interference with the right to privacy as well as to the
protection of this right.[7] In the
opinion of the Human Rights Committee set up under the Covenant, the Government
should protect every person against all arbitrary or unlawful interferences
whether they emanate from Government authorities or from natural or legal
persons. The “protection of the law” in paragraph 2 of the Article
calls for measures in the area of private and administrative law as well as
prohibitive norms under criminal
law.[8]
1.3 Subsequent to the adoption of the ICCPR, the Secretary-General of
the United Nations published in 1976 a report which included several specific
points “for possible inclusion in draft international standards concerning
respect for the privacy of the individual in the light of modern recording and
other devices”.[9] The
recommendations of the report which are relevant to this consultation paper are
stated below:
“1. States shall adopt legislation, or bring up to date existing legislation, so as to provide protection for the privacy of the individual against invasions by modern technological devices; ...
3. States shall, in particular, take the following minimum steps: [(a) to (d) omitted]
(e) In addition to any possible criminal liability, civil liability should attach to either the use of an auditory or visual device in relation to a person, under circumstances which would entitle him to assume that he could not be seen or heard by unauthorized persons, or the unauthorized disclosure of information so gained;
(f) Civil remedies shall allow a person to apply for the cessation of acts thus violating his privacy and, where the act has been completed, to recover damages, including damages for non-pecuniary injury; ... .”
1.4 Article 17 of the ICCPR is replicated as Article 14 of the Hong
Kong Bill of Rights.[10] However,
section 7 of the Hong Kong Bill of Rights Ordinance provides that the Ordinance
binds only (a) the Government and all public authorities, and (b) any person
acting on behalf of the Government or a public authority. The Bill of Rights
therefore has no direct effect on inter-citizen relationship and the scope of
the right to privacy under Article 14 of the Bill of Rights is much narrower
than that under Article 17 of the ICCPR. Nonetheless, since section 6 of the
Ordinance provides that a court in an action for breach of the Ordinance
“may grant such remedy or relief, or make such order, in respect of such a
breach, violation or threatened violation as it has power to grant or make in
those proceedings”, it is arguable that an individual has a cause of
action for breach of the right to privacy guaranteed under the Hong Kong Bill of
Rights so long as it is the Government or a public authority which has committed
or threatened to commit a breach. Such a construction would lead us to the
conclusion that the Hong Kong Bill of Rights Ordinance has created a general
right of privacy protecting private individuals from invasions of privacy by the
Government and public authorities, as opposed to invasions by private
persons.
1.5 The provisions of the ICCPR have acquired a constitutional status
in Hong Kong by virtue of Article 39 of the Basic Law of the Hong Kong Special
Administrative Region.[11] Article
39 provides:
“The provisions of the International Covenant on Civil and Political Rights ... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”
1.6 The
Article imposes an obligation on the Hong Kong Special Administrative Region to
implement the provisions of the ICCPR through its laws. This would necessitate
the enactment of laws to give effect to the right to privacy guaranteed under
the International Covenant. Since China has undertaken the responsibility to
report on the measures Hong Kong has adopted to give effect to the rights
recognised in the Covenant, the implementation of the Covenant will continue to
be subject to international scrutiny. Failure to implement Article 17 through
the laws of Hong Kong would not only be contrary to the Basic Law of the Hong
Kong Special Administrative Region, but would also be criticised by the United
Nations Human Rights Committee when it considers the report submitted by
China.
1.7 Another Article in the Basic Law which may be of relevance to
the protection of privacy is Article 28. It provides, inter alia, that:
“Arbitrary or unlawful search of the body of any resident or deprivation
or restriction of the freedom of the person shall be prohibited.” Article
29 supplements Article 28 by extending the protection against arbitrary or
unlawful search from search of the body to search of or intrusion into the
“home and other premises” of a resident. Such provisions are
reminiscent of the Fourth Amendment to the Constitution of the United States of
America which provides that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated”.
1.8 The function of the Fourth
Amendment is to protect individual privacy and dignity against unwarranted
intrusion by the state. It was originally applied to afford protection to
tangible items as represented by persons, houses, papers and effects. But in
recent years, the American courts have construed it as meaning that an
individual has a reasonable expectation of privacy to be free from intrusion of
electronic surveillance. The two-pronged test used in the courts is: (a)
whether a person has exhibited an actual (subjective) expectation of privacy,
and (b) whether that expectation is one that society is prepared to recognise as
reasonable.[12] Since the Fourth
Amendment now protects both tangible and intangible interests, the standard has
been applied to electronic surveillance and interception of communications by
the state. It is open to the Hong Kong courts to adopt a liberal interpretation
to construe Articles 28 and 29 of the Basic Law as providing Hong Kong residents
with a right to be protected against unwarranted invasion of individual privacy
by private citizens and the Government.
1.9 Edward Bloustein views invasion of privacy as an affront to human
dignity. He believes that an intrusion on an individual’s private life
“would destroy individual dignity and integrity and emasculate individual
freedom and independence”.[13]
He says:
“The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual.”[14]
1.10 We
think that it is not sufficient to describe invasion of privacy as an affront to
human dignity. Tim Frazer points out that although invasions of privacy violate
human dignity, an individual’s dignity may be offended without his privacy
being invaded:
“This approach to privacy, which attempts a single succinct description, does not sufficiently take account of the multifaceted nature of privacy. Though all aspects of privacy may be traced to human dignity, individuality or autonomy, so may the rationale underlying laws covering crimes of violence, sexual offences, marital breakdown, the detention of mental patients, etc. The right ‘to be let alone’ is relevant in all these contexts.”[15]
1.11 Thomas
Cooley was the first person to define privacy as the “right to be let
alone”.[16] The phrase is
simple and easy to understand. But Ruth Gavison says that such a simple
definition cannot be used in a meaningful way:
“This description gives an appearance of differentiation while covering almost any conceivable complaint anyone could ever make. [Footnote: This is not true of only explicit privacy cases, however. Actions for assault, tort recovery, or challenges to business regulation can all be considered assertions of the ‘right to be let alone’.] A great many instances of ‘not letting people alone’ cannot readily be described as invasions of privacy. Requiring that people pay their taxes or go into the army, or punishing them for murder, are just a few of the obvious examples.”[17]
1.12 According
to Alan Westin, there are four basic states of individual
privacy:[18]
(a) Solitude - The individual is separated from the group and freed from the observation of other persons.
(b) Intimacy - The individual is acting as part of a small unit that claims to exercise corporate seclusion so that it may achieve a close and frank relationship between two or more individuals.[19]
(c) Anonymity - This state of privacy occurs when the individual is in public places but still finds freedom from identification and surveillance. Although he knows that he is being observed on the streets, he does not expect to be personally identified and systematically observed by others.
(d) Reserve - This occurs when the individual’s need to limit communication about himself is protected by the willing discretion of those who have an interpersonal relationship with him. The creation of “mental distance” between individuals gives the parties a choice to withhold or disclose information.
1.13 Westin
stresses that in a free society and subject to the extraordinary exceptions in
the interests of society, the choice to decide when and on what terms personal
information should be revealed to the general public ought to be left to the
individual concerned.[20] He
therefore defines privacy as:
“the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. Viewed in terms of the relation of the individual to social participation, privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small-group intimacy or, when among larger groups, in a condition of anonymity or reserve.”[21]
1.14 In
the opinion of Ruth Gavison, there is a loss of privacy when others obtain
information about an individual, pay attention to him, or gain access to him.
She concludes that the concept of privacy is a complex of three elements which
are independent of but related to each
other.[22]
(a) Secrecy (the extent to which an individual is known) - A person can be said to have lost privacy if he is unable to control the release or use of information about himself which is not available in the public domain. In general, the more people know about the information, the greater the loss of privacy suffered by the individual to whom the information relates.
(b) Anonymity (the extent to which an individual is the subject of attention) - An individual loses privacy when he becomes the subject of attention. Attention alone will cause a loss of privacy even if no new information about him becomes known.[23]
(c) Solitude (the extent to which others have physical access to an individual) - An individual loses privacy when another gains physical access to him; not only because physical access enables another to acquire information about an individual, but also because it diminishes the “spatial aloneness” of an individual.[24]
1.15 The
focus of Gavison is therefore on access to a person. She defines privacy as:
“The extent to which we are known to others, the extent to which others
have physical access to us, and the extent to which we are the subject of
others’ attention.”[25]
This approach has been criticised on the ground that if a loss of privacy occurs
whenever any information about an individual becomes known, the concept of
privacy loses its intuitive meaning. Such a proposition would lead to the
result that any loss of solitude by or information about an individual has to be
counted as a loss of privacy.[26]
Raymond Wacks suggests that a limiting or controlling factor is required. He
points out that although focusing attention upon an individual or intruding upon
his solitude is objectionable in its own right, our concern for the
individual’s “privacy” in these circumstances is strongest
when he is engaged in activities which we would normally consider
“private”. He therefore suggests that the protection afforded by
the law of privacy should be limited to information “which relate[s] to
the individual and which it would be reasonable to expect him to regard as
intimate or sensitive and therefore to want to withhold or at least to restrict
its collection, use, or
circulation.”[27]
Philosophers who hold this view contend that access to personal information is a
necessary but not sufficient condition for it being within the scope of privacy.
What is further required is that the information acquired must be of an intimate
and sensitive nature, such as information about the sexual proclivities of a
person.
1.16 However, there can in theory, perhaps, be an invasion of
privacy without any loss of intimate or sensitive information about an
individual. A person who peeps into a private dining room which is not occupied
by anyone may acquire no information other than the fact that the occupants of
the house are not using the dining room at that time. Yet it is a clear case of
privacy intrusion. Where an employer secretly opens the personal locker of his
employee and discovers that it is empty, all the employer finds out about the
employee is that the latter does not use the locker for storage. Nevertheless,
no one would argue that the employer has intruded upon the privacy of the
employee. Another example is the persistent following of another on the
streets. Most people would agree that it constitutes an interference with
private life even though no new information about the victim is acquired as a
result. Likewise, listening to a telephone conversation which reveals no
intimate or sensitive information about the parties to the conversation is a
serious invasion of privacy. These examples show that a loss of intimate or
sensitive information is not a necessary condition for invasion of
privacy.[28]
1.17 Although most philosophers contend that the essence of privacy is
inaccessibility, some philosophers define privacy as the measure of control an
individual has over a realm of his private life. According to this view,
privacy functions by giving individuals autonomy over certain aspects of their
private life. Privacy therefore consists of the individual’s control over
access to and information about
himself.[29] An individual who
exercises control by choosing to disclose certain aspects of his private life
does not experience a loss of privacy on the ground that others gain access to
him. On the contrary, he experiences privacy by choosing to allow himself or
his personal information to go public. But if he chooses not to allow others
gaining access to himself or his personal data, an intrusion into his private
affairs or a disclosure of his personal data would violate his right of privacy.
1.18 In an attempt to provide a workable definition for the term
“privacy”, the declaration of the Nordic Conference of Jurists on
the Right to Respect for Privacy elaborates on what the right to be let alone is
about. Paragraphs 2 and 3 of the declaration states:
“2. The right of privacy is the right to be let alone to live one’s own life with the minimum degree of interference. In expanded form, this means:
The right of the individual to lead his own life protected against:
(a) interference with his private, family and home life;
(b) interference with his physical or mental integrity or his moral and intellectual freedom;
(c) attacks on his honour and reputation;
(d) being placed in a false light;
(e) the disclosure of irrelevant embarrassing facts relating to his private life;
(f) the use of his name, identity or likeness;
(g) spying, prying, watching and besetting;
(h) interference with his correspondence;
(i) misuse of his private communications, written or oral;
(j) disclosure of information given or received by him in circumstances of professional confidence. ...
3. For practical purposes, the above definition is intended to cover (among other matters) the following:
(i) search of the person;
(ii) entry on and search of premises and other property;
(iii) medical examinations, psychological and physical tests;
(iv) untrue or irrelevant embarrassing statements about a person;
(v) interception of correspondence;
(vi) wire or telephone tapping;
(vii) use of electronic surveillance or other ‘bugging’ devices;
(viii) recording, photographing or filming;
(ix) importuning by the Press or by agents of other mass media;
(x) public disclosures of private facts;
(xi) disclosure of information given to, or received from, professional advisers or to public authorities bound to observe secrecy;
(xii) harassing a person (e.g. watching and besetting him or subjecting him to nuisance calls on the telephone).”[30]
The
conference also declared that there was a need for a civil right to guard
against intrusion, surreptitious recording, photographs or eavesdropping, and
the use of material obtained by unlawful intrusion or which exploits a
person’s identity, places him in a false light or reveals embarrassing
private facts.
1.19 Another attempt was made by the Council of Europe
when it passed a resolution defining the right to privacy as the right to live
one’s own life with a minimum of interference. The resolution states that
the right to privacy:
“concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs, protection from disclosure of information given or received by the individual confidentially.”[31]
1.20 Instead
of giving a general definition of privacy, the Younger Committee in the United
Kingdom identified the principal privacy interests involved. They are:
a) the “freedom from intrusion upon oneself, one’s home, family and relationships”; and
b) “the right to determine for oneself how and to what extent information about oneself is communicated to others.”[32]
1.21 The
Law Reform Commission of Australia adopted a similar approach. It identified
three categories of privacy interests requiring legal protection,
namely:[33]
a) the interest in controlling entry to the “personal place” (“territorial privacy”);
b) the interest in freedom from interference with one’s person and “personal space” (“privacy of the person”); and
c) the interest of the person in controlling the information held by others about him (“information privacy”).
1.22 William
Prosser adopted a descriptive approach. After examining the decisions of the
American courts which recognised the existence of a right to privacy, he came to
the conclusion that the law of privacy “comprises four distinct kinds of
invasion of four different interests of the plaintiff, which are tied together
by the common name, but otherwise have almost nothing in common except that each
represents an interference with the right of the plaintiff ... ‘to be let
alone’.”[34] He
described these four torts as:
a) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs;
b) public disclosure of embarrassing private facts about the plaintiff;
c) publicity which places the plaintiff in a false light in the public eye; and
d) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.[35]
1.23 More
recently, the Calcutt Committee in the United Kingdom defined privacy as
“the right of the individual to be protected against intrusion into his
personal life or affairs, or those of his family, by direct physical means or by
publication of
information.”[36]
1.24 According to Alan Westin, privacy serves the following functions
for individuals and groups in democratic
nations:[37]
(a) Personal autonomy - Privacy satisfies the human desire to avoid being manipulated or dominated by others. An invasion of privacy threatens this personal autonomy. By penetrating into an individual’s “inner zone” and learning about his secrets, the intruder could expose that individual to ridicule and shame and exert domination over him. Furthermore, every individual lives behind a mask. The consequence can be deadly seriously if the mask is torn off:
“If this mask is torn off and the individual’s real self bared to a world in which everyone else still wears his mask and believes in masked performances, the individual can be seared by the hot light of selective, forced exposure. The numerous instances of suicides and nervous breakdowns resulting from such exposures by government investigation, press stories, and even published research constantly remind a free society that only grave social need can ever justify destruction of the privacy which guards the individual’s ultimate autonomy.”[38]
Achieving
personal autonomy is also essential to the development and maintenance of
individuality. It would relieve the pressure to live up to the expectations of
others. Giving protection to individual privacy would facilitate sheltered
experimentation and testing of ideas without fear of ridicule or penalty, and
would provide an opportunity to alter opinions before they are made public.
(b) Emotional release - There are at least five aspects of emotional release through privacy:[39]
(i) Every individual plays a series of roles in daily life. This could generate tensions for many. Besides, individuals can sustain conflicting roles for reasonable periods of time only. To maintain physical and psychological health, there have to be periods of privacy which give individuals “a chance to lay their masks for rest. To be always ‘on’ would destroy the human organism.”
(ii) Privacy also allows individuals to deviate temporarily from social etiquette when alone or among friends and acquaintances, as by swearing or putting feet on the desk.
(iii) Privacy serves the “safety-valve” function by allowing individuals to vent their anger at those who exercise authority over them without fear of reprisal. In the absence of such release, people would experience serious emotional pressure.
(iv) Privacy is essential for bodily functions and sexual relations.
(v) Individuals in sorrow, such as victims of crime or accidents, require privacy to recover. Those who are in public life who have suffered defeats or loss of face also need to retire from public view to recuperate.
(c) Self-evaluation - Individuals need privacy to evaluate the data that they receive for various purposes and to integrate them into meaningful information. Reflective solitude and even day-dreaming during moments of reserve are conducive to creative ideas.[40]
(d) Limited and protected communication - Privacy provides individuals with
the opportunities to share confidences with their intimates and other
professional advisers such as doctors, lawyers and
ministers.[41]
1.25 Ruth
Gavison has also given a detailed exposition of the positive functions that
privacy has in our lives. She says that privacy is central to the attainment of
individual goals such as autonomy, creativity, growth and mental health. By
limiting access to individuals we could create an environment which facilitates
the development of a liberal and pluralistic society. She explains the
advantages of restricting access to an individual:
“By restricting physical access to an individual, privacy insulates that individual from distraction and from the inhibitive effects that arise from close physical proximity with another individual. Freedom from distraction is essential for all human activities that require concentration, such as learning, writing, and all forms of creativity. ... Restricting physical access also permits an individual to relax. Even casual observation has an inhibitive effect on most individuals that makes them more formal and uneasy. ... Furthermore, freedom from access contributes to the individual by permitting intimacy. ... Relaxation and intimacy together are essential for many kinds of human relations, including sexual ones. Privacy in the sense of freedom from physical access is thus not only important for individuals by themselves, but also as a necessary shield for intimate relations.”[42]
1.26 Gavison
further points out that privacy enables individuals to deliberate and establish
opinions without fear of any unpleasant or hostile reaction from others. It
enables individuals to continue relationships without denying one’s inner
thoughts that the other party does not approve. Privacy therefore enhances the
capacity of individuals to create and maintain human relations. Exposing an
individual to the public eye would subject him to pressure to conform to
society’s expectations. This would lead to inhibition, repression and
even mental illness in serious
cases.[43]
1.27 Apart from
serving the individual interest in the attainment of individual goals, privacy
also serves the public interest in the development of democracy. Privacy is
essential to democratic government, not only because it contributes to the
autonomy of the citizen, but also because it promotes liberty of political
action:
“This liberty requires privacy, for individuals must have the right to keep private their votes, their political discussions, and their associations if they are to be able to exercise their liberty to the fullest extent. Privacy is crucial to democracy in providing the opportunity for parties to work out their political positions, and to compromise with opposing factions, before subjecting their positions to public scrutiny. Denying the privacy necessary for these interactions would undermine the democratic process.”[44]
1.28 Although
the current system of government in Hong Kong is far from being a democracy, the
Basic Law has promised that the election of all members of the Legislative
Council will be by universal
suffrage.[45] Since privacy
encourages public participation in political decisions by enabling citizens to
form judgments and express preferences on social issues, affording adequate
protection to privacy will provide a congenial environment for Hong Kong to move
towards greater democracy pursuant to the Basic Law. Furthermore, to the extent
that public service means loss of expectations of privacy, a society which
respects and protects privacy would reduce the costs of running for public
office. Privacy therefore helps society attracts talented individuals to serve
the community.[46]
1.29 Quite apart from the constitutional requirements and the
international obligations undertaken by Hong Kong in respect of the right to
privacy, there are, indeed, strong arguments why privacy ought to receive the
protection of law. To the extent that privacy is a value which underpins other
fundamental rights and freedoms, a free and liberal society like Hong Kong which
is moving toward greater democracy should respect and protect individual’s
private life.[47] In our opinion,
privacy interests comprise both individual and public elements. The protection
of privacy is in the interests of both the individual and
society.[48] It is in the public
interest to protect the interests of individuals against injury to their
emotions and mental suffering. To treat privacy as purely an individual
interest and to pit it against other public interests is misguided. An
individual whose privacy has been invaded ought to have a remedy in civil law.
We acknowledge that it is difficult, if not impossible, to define the parameters
of the right of privacy in precise terms, but this problem does not preclude us
from examining whether an infringement of the privacy interests embodied in the
right of privacy should be made a tort. The desirability of having a tort of
privacy which defines privacy in general terms will be discussed in Chapter 6.
This discussion will be followed by a detailed examination of the respective
privacy interests embodied in the right of privacy.
1.30 We examine in
the next chapter whether the right to privacy is compatible with freedom of
speech and of the press. Whether the Personal Data (Privacy) Ordinance and the
common law are adequate and effective in protecting individual privacy will be
discussed in Chapters 3 and 4 respectively. The experience in other
jurisdictions will be outlined in Chapter 5.
[7] UN Human Rights Committee,
General Comment 16/32 of 23 March 1988, para
1.
[8] M Nowak, UN Covenant on
Civil and Political Rights; CCPR Commentary (Strasbourg: Engel, 1993), 289 -
290.
[9] UN Document E/CN.4/1116.
The recommendations of the report are reproduced in J Michael, Privacy and
Human Rights (Dartmouth, 1994), 21 -
23.
[10] The Hong Kong Bill of
Rights Ordinance (Cap 383), Part
II.
[11] Y Ghai, Hong
Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and
the Basic Law (Hong Kong University Press, 1997), 419 - 420. The repeal of
sections 2(3), 3 and 4 of the Hong Kong Bill of Rights Ordinance (Cap 383) by
the Decision of the Standing Committee of the National People’s Congress
on the Treatment of the Laws Previously in Force in Hong Kong (adopted on 23 Feb
1997) does not have much effect on the operation of Cap 383. See Y Ghai, above,
493 - 494.
[12] Katz v United
States, 389 US 347, 361 (1967), per Harlan
J.
[13] E J Bloustein,
“Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser”
(1964) 39 NYULR 962, 971.
[14] E
J Bloustein, 1003.
[15] T
Frazer, “Appropriation of Personality - A New Tort?” (1983) 99 LQR
281, 296.
[16] Thomas Cooley,
Laws of Torts (2nd edn, 1888),
29.
[17] R Gavison,
“Privacy and the Limits of Law” (1980) 89 Yale LJ 421, at
437.
[18] A F Westin, Privacy
and Freedom (New York: Atheneum, 1968),
31-32.
[19] Examples of units of
intimacy are husband and wife, the family and the work
clique.
[20] A F Westin,
42.
[21] A F Westin, 7. Cf R
Wacks, Personal Information - Privacy and the Law (Oxford: Clarendon
Press, 1993), 14 - 15.
[22] R
Gavison (1980), at 428.
[23] R
Gavison (1980), at 432.
[24] R
Gavison (1980), at 433.
[25] R
Gavison in F D Schoeman (ed), Philosophical Dimensions of Privacy: An
Anthology (Cambridge: Cambridge University Press, 1984),
379.
[26] R Wacks, (1993),
15-18.
[27] R Wacks (1993),
26.
[28] The question as to
whether stalking behaviour amounts to an invasion of privacy is addressed in:
HKLRC, Privacy sub-committee, Stalking - Consultation Paper (1998), ch
1.
[29] J Rachels, “Why
Privacy is Lost” (1975) 4 Philosophy and Public Affairs 323,
326.
[30] Reproduced in JUSTICE,
Privacy and the Law (London: Stevens and Sons, 1970),
Appendix B.
[31] Resolution
428(1970) of the Consultative (Parliamentary) Assembly of the Council of Europe:
Council of Europe, Cons. Ass., 21st Ordinary Session (3rd part), Texts
Adopted, (1970).
[32]
Report of the Committee on Privacy (“Younger Report”),
(London: HMSO, Cmnd 5012, 1972), para
38.
[33] Law Reform Commission
of Australia, Privacy (Report No 22, 1983), vol 1, 21. See also S I
Benn, “The Protection and Limitation of Privacy” (1978) 52 ALJ 601
and 686.
[34] W L Prosser,
“Privacy” (1960) 48:3 California Law Review 383 at
389.
[35]
Above.
[36] Report of
the Committee on Privacy and Related Matter, (“the Calcutt
Report”) (London: HMSO, Cmnd 1102,
1990).
[37] A F Westin,
32-39.
[38] A F Westin,
33-34.
[39] A F Westin,
35-36.
[40] A F Westin,
36-37.
[41] A F Westin,
38.
[42] R Gavison (1980) 89
Yale LJ 421, at 446 - 447. Charles Fried argues that privacy is necessary for
the development of love, friendship and trust by giving an individual control
over the amount of personal information he would like to share with his friends
and loved ones. Love and friendship are inconceivable without the intimacy of
shared personal information. C Fried, “Privacy” (1968) 77 Yale
LJ 475, 484; C Fried, An Anatomy of Values: Problems of Personal and Social
Choice (Cambridge: Harvard University Press,
1970).
[43] S Jourard,
“Some Psychological Aspects of Privacy” (1966) 31 Law &
Contemp Prob. 307.
[44] R
Gavison (1980), at 456.
[45]
Basic Law of the HKSAR, Article
68.
[46] R Gavison (1980), at
456.
[47] See the preamble of
the Australian Privacy Charter 1995, quoted in G Greenleaf, “Information
and the Law” (1995) 69 ALJ 90,
91.
[48] An example is the legal
prohibition on publishing the names of rape victims. This serves the public
interest in ensuring their safety and encouraging the reporting of such crimes.
E Paton-Simpson, “Human Interests: Privacy and Free Speech in the
Balance” (1995) 16 New Zealand Universities LR 225, 242.