|
Hong Kong Law Reform Commission |
8.1 Given that privacy is important to both individuals and society
and that it underpins other fundamental rights and freedoms recognised in the
Basic Law,[345] we are of the view
that unauthorized disclosure of private facts should give rise to civil
liability in tort. Publication of false information about an individual may
give rise to a cause of action in defamation or malicious falsehood. However,
the concern of the law of defamation is with damage to reputation. It protects
the material interests of the victim, not his dignity or
self-esteem.[346] The publication
is actionable only if it has a tendency to injure the relationship of the
plaintiff with another. Furthermore, an individual cannot bring an action in
defamation or malicious falsehood if the information is true. Generally
speaking, statements about a person’s private life can be freely made as
long as they are true. It matters not that the information is insulting or
scurrilous. Brazier says that: “Newspapers are free ... to rake up a
man’s forgotten past, and ruin him deliberately in the process, without
risk of incurring tortious liability [for
defamation].”[347] But
truth may be more injurious than falsehood. The publication of truth about an
individual can be extremely embarrassing and damaging.
8.2 Individual
privacy may be invaded other than by surveillance or interception of
communications. The disclosure of the transcripts of the tapes of an alleged
conversation between the Prince of Wales and Mrs Parker-Bowles illustrates that
publication of personal data is often more objectionable than the use of
intrusive methods to collect personal data. Under existing law, the publication
of true facts may be restrained on the basis that it constitutes a breach of
confidence or contempt of
court.[348] But our discussion in
Chapters 3 and 4 shows that such protection as is available under existing law
cannot provide an adequate and effective civil remedy for the publication of
true but harmful information about the private life of another.
8.3 The
press has a private commercial interest in publishing the details of the private
life of individuals; gossip being the stock in trade of the press industry.
Warren and Brandeis were critical of the press overstepping the bounds of
propriety and of decency. They
stated:[349]
“Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”
8.4 The
above statement was made of the American press in 1890. But it is also the
public perception of some sections of the press in Hong Kong today. Warren and
Brandeis further expressed the view that:
“[t]he intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.”[350]
8.5 In
their opinion, common law secured to each individual the right of determining to
what extent his thoughts, sentiments and emotions should be communicated to
others:
“Under our system of government, [an individual] can never be compelled to express [his thoughts, sentiments and emotions] (except when upon the witness-stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word or by signs, in painting, by sculpture, or in music. Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public. No other has the right to publish his productions in any form, without his consent.”[351]
8.6 They
concluded that the protection afforded to thoughts, sentiments and emotions by
the common law right to intellectual and artistic property, was, so far as it
consisted in preventing publication, merely an instance of the enforcement of
the more general right of the individual to be let alone. In their opinion, the
principle which protected personal productions against publication was in
reality not the principle of private property, but that of “inviolate
personality”.[352]
8.7 Westin
describes 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”.[353] Used in that
sense, privacy could be defined in terms of the degree of control an individual
has over his personal information; and an individual could be said to have lost
privacy if information about him is disclosed against his will for an
unauthorized
purpose.[354]
8.8 Publicising
intimate information about an individual without his consent can harm his
ability to maintain social relationship and pursue his career. For instance,
publicising the fact that a teacher is a homosexual may make him difficult to
carrying out his teaching duties. In the opinion of the Human Rights Committee
set up under the ICCPR, the parties to the Covenant have to take effective
measures to ensure that “information concerning a person’s private
life does not reach the hands of persons who are not authorized by law to
receive, process and use it, and is never used for purposes incompatible with
the Covenant.”[355]
According to Manfred Nowak, the right to privacy under Article 17 of the
Covenant encompasses “a right to secrecy from the public of private
characteristics, actions or
data”.[356]
8.9 Giving
publicity to private facts is one of the four types of invasion of privacy
recognised by the American courts. The Restatement provides:
“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicised is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.”[357]
8.10 The
Law Reform Commission of Australia recommended that a right of action for
publication of “sensitive private facts” should be created. The
Calcutt Committee was also satisfied that it would be possible to define a
statutory tort of infringement of privacy which relates specifically to the
publication of personal information. In the paper on Privacy and Media
Intrusion, the UK Government suggested that the legislation might provide
for a statutory “right to privacy of personal information, communications
and documents”. We agree that there is a strong case for creating a tort
of unauthorized disclosure of facts relating to the private life of an
individual. Apart from providing a remedy for the unauthorized publication of
intimate or sensitive personal information in the press or in a broadcasting
programme, this tort could also form the basis for suit where such information
has been posted on a newsgroup or public bulletin board on the Internet.
8.11 If liability is to be attached to disclosure of true facts
because they relate to an individual’s private life, we need to
distinguish between facts which are private and those which are not. The
following discussion will focus on the basis on which facts about an individual
could be regarded as truly private. Whether disclosure of private facts can be
justified in the public interest is a separate issue discussed in Chapter
11.
8.12 Clause 19(1) of the draft Unfair Publication Bill in Australia
provided that:
“a person publishes sensitive private facts concerning an individual
where the person publishes matter relating or purporting to relate to the
health, private behaviour, home life or personal or family relationships of the
individual in circumstances in which the publication is likely to cause
distress, annoyance or embarrassment to an individual in the position of the
first-mentioned
individual.”[358]
8.13 The
Calcutt Committee proposed that if the privacy tort relating to the publication
of personal information were to be created, “personal information”
should be defined “in terms of an individual’s personal life, that
is to say, those aspects of life which reasonable members of society would
respect as being such that an individual is ordinarily entitled to keep them to
himself, whether or not they relate to his mind or body, to his home, to his
family, to other personal relationships, or to his correspondence or
documents.”[359]
8.14 The
UK Government suggested to define “personal information” as:
“any information about an individual’s private life or personal behaviour, including, in particular, information about:
(a) health or medical treatment,
(b) marriage, family life or personal relationships,
(c) sexual orientation or behaviour,
(d) political or religious beliefs, or
(e) personal legal or financial affairs;
and references to personal information, in relation to an individual, include any visual image or sound recording of that person.”[360]
8.15 The
test for determining whether information about an individual is private or not
may be based on the location at which the information is revealed or the nature
of the personal information in question.
8.16 Since secrecy is an element of privacy, we think that the law of
privacy should afford protection to facts that are truly “private,
secluded or secret” but not information that is already
public.[361] Personal information
revealed by an individual in public places is by definition not private. No
liability should be imposed for giving publicity to facts about a person which
are open to public view.[362] We
agree with what is said in the American Restatement:
“[the plaintiff] normally cannot complain when his photograph is taken while he is walking down the public street and is published in the defendant’s newspaper. Nor is his privacy invaded when the defendant gives publicity to a business or activity in which the plaintiff is engaged in dealing with the public. On the other hand, when a photograph is taken without the plaintiff’s consent in a private place, or one already made is stolen from his home, the plaintiff’s appearance that is made public when the picture appears in a newspaper is still a private matter, and his privacy is invaded.”[363]
8.17 Thomas Emerson suggests that there is an element of intimacy in
the zone of privacy. He argues that protection would be extended only to
matters relating to the intimate details of an individual’s life, namely:
“those activities, ideas or emotions which one does not share with others
or shares only with those who are closest.” This would include
“sexual relations, the performance of bodily functions, family relations,
and the like.”[364] In the
opinion of Nowak, personal data the publication of which would be
“embarrassing or awkward for the person concerned for reasons of
morals” should enjoy legal protection. He gives the examples of
“the publication of secretly acquired nude photos or personal writings
(diaries, letters, etc.) or of revelations of a person’s sex life,
so-called anomalies, perversions or other (true or fabricated) peculiarities
that would subject the person concerned to public
ridicule.”[365]
8.18 The
way the disclosure tort is developed in the United States suggests that private
facts comprise intimate details of an individual’s life:
“Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of privacy, unless the matter is one of legitimate public interest.”[366]
8.19 Warren
and Brandeis did not require that the information published be of an intimate
nature. What they had in mind were “matters which [a person] may properly
prefer to keep
private”.[367] It is
difficult to maintain that the disclosure of any personal information
which a person would prefer to keep private constitutes an invasion of privacy.
An individual’s expectation of privacy must also be reasonable in the
circumstances. Wacks therefore suggests that any definition of “personal
information” must refer both to the quality of the information and to the
reasonable expectations of the individual concerning its use. He proposes that
“personal information” be defined as consisting of:
“those facts, communications, or opinions which relate 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 their collection, use, or circulation.”[368]
8.20 Insofar
as individuals have a reasonable expectation of privacy in information about an
individual’s private communications, home life, personal and family
relationships, private behaviour, health and personal financial affairs, the law
should protect such information from being made public against their will.
8.21 In a German case, a newspaper article entitled “How Women
Can Protect Themselves” referred to an individual who had been convicted
of rape. The court held that it was not necessary to identify the individual by
mentioning his name, age, residence and occupation. The right of the criminal
to be left alone gained increasing importance after the legitimate interest of
the public in receiving information had been
satisfied.[369] In the American
case of Melvin v Reid,[370]
the defendant made a film depicting the plaintiff as a prostitute who had been
involved in a murder case. The scandalous behaviour shown in the film took
place many years before it was made, but at the time when the film was released,
the plaintiff had become entirely rehabilitated. The court held that the
defendant had violated the plaintiff’s right to privacy by using her real
name in the film. The decision may be explained on the grounds that the
disclosure of the identity and whereabouts of the plaintiff were not part of the
revived “news”, or that the revelation of a former offender’s
past when she was trying to lead a respectable life could not pass the
“mores” test.[371]
The facts of this case would not give rise to a right of action in defamation
because truth is a complete
defence.[372]
8.22 Those
who stress the importance of the press in educating or informing the public as
to past history may ask for a different approach. They argue that revealing
past events and present whereabouts of former public figures can properly be a
matter of present public interest. In Sidis v F-R Publishing
Corp,[373] a magazine
published an article about a child prodigy who had been well known to the public
as talented in mathematics but had retired into a life of seclusion as an
insignificant clerk at the time of the article. Although the article was based
on true facts, it publicised the intimate details of the plaintiff’s life
concerning the period after he had decided to live a life of privacy. The court
held that since the plaintiff had acquired the status of a public figure, his
interest in privacy must give way to the public interest in news. Lorenz
queries whether a person who had decided not to continue as a distinguished
scholar 20 years ago should still be categorized as a public figure. He reasons
that: “If it is right and just not to disturb the process of social
reintegration of former offenders by indecent publicity of previous convictions,
the former ‘child prodigy’ who, for whatever reasons, had not lived
up to the expectations of the public, should not be socially disintegrated by
giving improper publicity to his private life which had taken such an unexpected
turn.”[374]
8.23 We think that the publication of the existing whereabouts and
other aspects of the private life of a former public figure cannot be justified
if it is merely the past event which is a matter of present public
concern.[375] While the past
event about a former public figure might be dredged up by the press on the
ground that it is a matter of public record or public knowledge, his private
life after he has decided to retire into a life of seclusion should not
be exposed unless it has become a matter of present legitimate concern to the
public or his identity has been concealed in the reports.
8.24 Any tort of invasion of privacy by public disclosure may be
limited to information obtained by means of surveillance or interception of
communications. The Calcutt Committee was of the opinion that a civil remedy
for victims of invasion of privacy would afford protection against imminent or
actual publication of material obtained by means of physical intrusion which
would be rendered unlawful under its
proposals.[376] The Irish Law
Reform Commission also recommends that disclosure or publication of information
obtained by means of surveillance should be actionable. They point out
that:
“disclosure or publication of [information obtained by means of surveillance] often constitutes a greater invasion of the privacy of an individual than the act of surveillance itself in that the individual’s control of the information has been lost not only to another person but to a number, and in some cases an unlimited number, of other persons.”[377]
8.25 The
Younger Committee thought that the damaging use or disclosure of information
acquired by means of any unlawful act, with knowledge of how it was acquired,
was an objectionable practice against which the law should afford protection.
They recommended that it should be a civil wrong to use or disclose information
which the discloser knew or ought to have known had been obtained by illegal
means. The English Law Commission followed up this issue in their report on
breach of confidence.[378] The
Commission thought that where a device was clearly designed for the
surreptitious surveillance of persons, their activities, communications or
property, then anyone who had obtained information by using it should be subject
to an obligation of confidence in respect of the information so obtained. In
other words, information obtained by telephone tapping or other means of
surveillance would be subject to an obligation of confidence and anyone who
acted in breach of that obligation would be liable. The English Law Commission
summarised their views on the use of surveillance devices as follows:
“We think that an obligation of confidence should cover information obtained by the use of any surveillance device, provided that such information would not have been acquired without the use of that device. However, in the case of devices which, though not designed or adapted primarily for surreptitious surveillance, enable information to be obtained which would not otherwise have been acquired, liability for the subsequent disclosure or use of that information should arise only if the person from whom the information has been obtained was not or ought not reasonably to have been aware of the use of the device, and ought not reasonably to have taken precautions to prevent the information from being acquired in the way in question.”[379]
8.26 The
Law Reform Commission of Hong Kong will revisit the question of unauthorized
disclosure of information obtained by illegal means when it examines the law on
breach of confidence in a separate
report.[380] Suffice it to say
that restricting civil remedies to the disclosure of personal information
obtained by illegal means would be an inadequate response to the problems of
invasion of privacy. Obtaining personal information by intrusion and the
eventual disclosure of personal information give rise to separate privacy
concerns. Liability for publication of private facts should not depend on
whether the means used to obtain the information is lawful or not. A person who
has exposed another’s sensitive or intimate private facts without
justification should not be allowed to avoid liability merely because such facts
were obtained by lawful
means.[381] A new tort along the
lines suggested by the Younger Committee would not be a sufficient remedy to
repair the damage caused by an invasion of privacy by unwanted publicity.
8.27 The disclosure tort in the United States requires that the
disclosure of private facts be a public disclosure and not a private one. The
requirement of public disclosure connotes publicity in the sense of
communication to the public in general or to a large number of persons, as
distinguished from one individual or a few. While the simple disclosure of
personal information to a single person or to a small group of persons is not
sufficient to support a claim, any publication in a newspaper or magazine or
statement made in an address to a large audience would
suffice.[382]
8.28 Under
the law of defamation, a defamatory statement is actionable irrespective of the
extent of publication. Should liability for invasion of privacy based on
disclosure of private facts depend upon the extent of publication? Bloustein
thinks that it should be:
“The reason is simply that defamation is founded on loss of reputation while the invasion of privacy is founded on an insult to individuality. A person’s reputation may be damaged in the minds of one man or many. Unless there is a breach of a confidential relationship, however, the indignity and outrage involved in disclosure of details of a private life, only arise when there is a massive disclosure, only when there is truly a disclosure to the public. ...
The gravamen of a defamation action is engendering a false opinion about a person, whether in the mind of one other person or many people. The gravamen in the public disclosure cases is degrading a person by laying his life open to public view. In defamation a man is robbed of his reputation; in the public disclosure cases it is his individuality which is lost.”[383]
8.29 Gossiping
about private affairs of others is as old as human history. It is said to be
“a basic form of information exchange that teaches about other lifestyles
and attitudes, and through which community values are changed or
reinforced.”[384] The
effect of gossip is trivial and limited because it is usually confined to
friends and relatives. A person’s peace and comfort would only be
slightly affected if at all. But gossip among friends and relatives is entirely
different from the publication of the same information in the press. It is very
likely that the individual concerned would know what exactly has been said or
shown about him. Private gossip does not have this effect although we all know
that our friends talk about us behind our back. The institutionalization of
mass publicity and the prevalence of “gossip columns” in the
newspapers have become “a significant and everyday threat to personal
dignity and individuality
realized.”[385]
8.30 Privacy
enables sheltered experimentation and testing of ideas without fear of ridicule
or penalty. It also provides for an opportunity to alter opinions before they
are made public.[386] As pointed
out by Knight Bruce V-C in Prince Albert v Strange: “A man may
employ himself in private in a manner very harmless, but which, disclosed in
society, may destroy the comfort of his life or even his success in
it.”[387] Warren and
Brandeis said that although gossip is “apparently harmless, when widely
and persistently circulated, is potent for evil”. They observed that
“[if] casual and unimportant statements in a letter, if handiwork, however
inartistic and valueless, if possessions of all sorts are protected not only
against reproduction, but against description and enumeration, how much more
should the acts and sayings of a man in his social and domestic relations be
guarded from ruthless
publicity.”[388]
8.31 It
will be recalled that secrecy and anonymity are essential elements of
privacy.[389] Giving publicity to
private affairs threatens the development and maintenance of interpersonal
relationship. Individuals who are grief-stricken and public figures who have
suffered a set back are particularly vulnerable to mental distress caused by
unwanted publicity. We believe that the law should protect the private affairs
of individuals from being dragged into unwanted publicity unless the community
has a legitimate concern over such affairs.
8.32 Unwanted publicity is
objectionable even though the individual is portrayed in a favourable light and
the public takes a sympathetic view of the private facts disclosed. We agree
with the views expressed by Bloustein below:
“What the [individuals in the public disclosure cases] complain of is not that the public has been led to adopt a certain attitude or opinion concerning them - whether true or false, hostile or friendly - but rather that some aspect of their life has been held up to public scrutiny at all. In this sense, the gravamen of the complaint here is just like that in the intrusion cases; in effect, the publicity constitutes a form of intrusion, it is as if 100,000 people were suddenly peering in, as through window, on one’s private life.
When a newspaper publishes a picture of a newborn deformed child, its parents are not disturbed about any possible loss of reputation as a result. They are rather mortified and insulted that the world should be witness to their private tragedy. The hospital and the newspaper have no right to intrude in this manner upon a private life. Similarly, when an author does a sympathetic but intimately detailed sketch of someone, who up to that time had only been a face in the crowd, the cause for complaint is not loss of reputation but that a reputation was established at all. The wrong is in replacing personal anonymity by notoriety, in turning a private life into a public spectacle.”[390]
8.33 We
agree that the mischief against which the law of privacy should provide a remedy
is the “public disclosure” of private facts, not gossiping among
relatives and friends or disclosure of information to a single individual or a
few.[391] Giving publicity to
private facts is much more likely to harm the individual than gossiping. As
long as private facts are disclosed to the public in general or to a large
number of persons and the disclosure is not in the public interest, the
aggrieved individual should have a remedy against the discloser whether or not
the disclosure portrays the individual in a favourable light.
8.34 We think that to be actionable for invasion of privacy, the
disclosure in extent and content must be of a kind that would be seriously
offensive and objectionable to a reasonable person of ordinary sensibilities.
Distress, humiliation and embarrassment are key elements of the action. It is
only when the publicity given to the plaintiff is such that a reasonable person
would feel justified in feeling substantially hurt that he should have a cause
of action. Qualifying the tort by the notion of offensiveness would check
frivolous or blackmailing actions.
8.35 The publication of photographs
of individuals in emotional distress or in an embarrassing pose may be regarded
as offensive. It has been held in the United States that a newspaper was liable
for publishing a photograph of a woman with her skirt blown up while she was
standing over the air vent in a fun
house.[392] Giving undue or
unreasonable publicity to private
debts[393] or a person’s
transsexuality may also be actionable.
8.36 As with the intrusion tort
recommended in the last chapter, a person should not be liable for giving
publicity to private facts unless he has published the facts either with
knowledge that they are seriously offensive or with reckless disregard of
whether or not they are so.
8.37 The Personal Data (Privacy) Ordinance (Cap 486) protects an
individual against unauthorized disclosure of personal data. In order to find
out the extent to which the Ordinance protects an individual against public
disclosure of matters concerning the private life of another, we have compared
in general terms the protection against unauthorized disclosure under the
Ordinance with the tort of invasion of privacy based on public disclosure of
private facts in the United States.
|
|
Personal Data (Privacy) Ordinance
|
Tort of “public disclosure of private facts” in the United States |
|
1 |
The Ordinance protects “personal data” which basically means recorded data relating to a living individual. It regulates the collection and use of personal data. It does not protect individuals from invasion of privacy as such. |
The action protects individuals from invasion of privacy based on the public disclosure of facts which are personal to an individual. Though it invariably relates to personal data, it does not cover personal data which is open to public inspection. |
|
2 |
A disclosure of personal data is lawful if (a) the data user has consented to the disclosure or (b) the disclosure is for the purpose for which the data were to be used at the time of the collection. This purpose must be directly related to a function or activity of the data user who is to use the data. |
The key elements of the tort are emotional distress and embarrassment. The defendant would be liable as long as there is a publication of private facts which are highly offensive to a reasonable person. The purpose of a disclosure is relevant only for the purposes of determining whether the defendant may rely on the defence of publishing a matter of legitimate public concern. |
|
3 |
There is no requirement that the disclosure be to the public. Unauthorized disclosure to a single individual would suffice. |
The disclosure must be to the public in general or to a large number of persons. |
|
4 |
The Ordinance regulates the matching of personal data for the purpose of producing or verifying data that may be used for the purpose of taking adverse action against the data subjects. |
The matching of personal data as defined in the Ordinance does not normally give rise to a cause of action for public disclosure of private facts. The matching procedure is an internal exercise and may not be treated as a public disclosure. |
|
5 |
The Ordinance does not prohibit the transfer of personal data to a place outside Hong Kong if that place has legislation protecting personal data or the user has exercised all due diligence to ensure that the data will not, in that place, be used in any manner which, if that place were Hong Kong, would be a contravention of a requirement under the Ordinance. |
Whether or not the private facts are disclosed to a place which has a data protection regime is not a relevant consideration in deciding whether or not the defendant is liable for the disclosure tort. Disclosure of personal data to a branch office or subsidiary of the data user in a place outside the US would not normally be actionable because there may not be a public disclosure of private facts. But if the defendant has given publicity to private facts in a place outside the US and such publicity is offensive to a reasonable person, he would be liable whether nor not that place has legislation protecting personal data. |
|
6 |
Where the personal data are exempt from a provision of the Ordinance by virtue of Part VIII of the Ordinance, that provision will not impose any requirement on the data user nor confer any right on the data subject. It is up to the complainant, the Privacy Commissioner or the plaintiff, as the case may be, to argue that none of the specified exemptions applies. |
The defendant is liable for invasion of privacy as long as he has given publicity to private facts about the plaintiff. The burden is on the defendant, not the plaintiff, to argue that one of the recognised defences applies. |
|
7 |
It is a defence in civil proceedings brought pursuant to section 66 for the defendant to show that “he had taken such care as in all the circumstances was reasonably required to avoid the contravention concerned”. |
There is no defence of due diligence. |
|
8 |
Personal data held by an individual only for recreational purposes or which are concerned only with the management of his personal, family or household affairs are exempt from the data protection principles. |
Such personal data may be private facts the collection of which would be actionable. |
|
9 |
Disclosure of data to the media is exempt from the use limitation principle if the data user has reasonable grounds to believe that the publication of the data is in the “public interest”. This exemption does not apply to the publication of such data by the media to the general public. The media has to fall back on one of the prescribed exemptions. |
The defendant is not liable for publishing anything which is “newsworthy”. |
|
10 |
Disclosure of data for the following purposes are exempt from the use limitation principle: (a) the prevention or detection of crime; (b) the apprehension of offenders; (c) the prevention or remedying of unlawful or seriously improper conduct; (d) the prevention of significant financial loss arising from any imprudent business practices; (e) protection of health; (f) safeguarding security, defence or international relations in respect of Hong Kong. |
The tort does not prohibit the publication of information which would be of “legitimate concern to the public”. |
|
11 |
Disclosure of data that are in the public domain is not exempt from regulation. Such data must still be disclosed for an authorized purpose. |
There is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public. |
|
12 |
(a) An individual may complain to the Privacy Commissioner if a data user is contravening or has contravened the use limitation principle. The Commissioner may serve on the data user an enforcement notice directing him to remedy a contravention. (b) An individual has no right to lodge a complaint if the act, which if done would constitute a contravention, has yet to be done by the data user. Further, no enforcement notice can be served if the contravention has terminated and the circumstances of that contravention make it unlikely that the contravention will continue or be repeated. (c) An individual who suffers damage by reason of a contravention of a requirement of the Ordinance is entitled to claim compensation from the data user if he brings an action under section 66(1). |
(a) Apart from damages for the loss of reputation or community status resulting from the publicity, the plaintiff may also recover special damages, i.e. demonstrable direct, economic losses resulting from the invasion of privacy. (b) Injunctive relief may also be available in cases where the award of damages is not an adequate remedy. |
8.38 Everyone has a right to a private life. The publication of
facts about an individual’s private life should not be allowed unless it
can be justified in the public interest. An individual should have control over
what, when and how information about himself should be disclosed to another.
Civil remedies for public disclosure, as against the case of limited disclosure,
should be provided for by law. Legal proceedings for public disclosure will not
involve a traumatic abandonment of privacy because the public disclosure would
have already stripped it of any. A person subjected to media intrusion will
often become aware of it. Furthermore, the courts are experienced in resolving
the competing interests arising in this area. They already discharge a similar
role in breach of confidence and defamation cases.
8.39 We have seen in
Chapter 3 that the Personal Data (Privacy) Ordinance does not always provide a
remedy for individuals whose private lives have been publicised against their
will. In order to provide effective remedies to victims of invasion of privacy
and to strengthen the protection under the Personal Data (Privacy) Ordinance, a
new tort should be created by statute to protect individuals from unwanted
publicity which is seriously offensive and objectionable to a reasonable
person.[394] Creating a tort
restraining the publication of personal information which is seriously offensive
and objectionable to a reasonable person is proportional and appropriate to the
legitimate aim of protecting the private life of individuals from unlawful or
arbitrary interference. As the protection afforded by this tort would have an
impact on the freedom of speech, safeguards should be built into the law of
privacy to protect the legitimate concerns of free speech. The nature of
defences to the disclosure tort will be discussed in Chapter 11.
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Recommendation 3 We recommend that any person who gives publicity to a matter concerning the private life of another should be liable for a statutory tort of invasion of privacy provided that the disclosure in extent and content is of a kind that would be seriously offensive and objectionable to a reasonable person of ordinary sensibilities and he knows or ought to know that such disclosure is seriously offensive and objectionable to such a person. |
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Recommendation 4 We recommend that for the purposes of the statutory tort of invasion of privacy based on public disclosure of private facts recommended above, matters concerning the private life of another should include information about an individual’s private communications, home life, personal or family relationships, private behaviour, health or personal financial affairs. |
[345] See the discussion in Chapters 1 and 2.
[346] See paras 4.26 - 4.27.
[347] M Brazier, Streets on Torts (Butterworths, 9th edn, 1993), 445. Cf Lyon v Steyn (1931) TPD 247 in which the court held that “It cannot be in the public interest to rake up the ashes of the dead past and accuse a man of having done something thirty years ago.”
[348] It may also constitute a contravention of the use limitation principle under the Personal Data (Privacy) Ordinance (i.e. Data Protection Principle 3).
[349] S D Warren & L D Brandeis, 196.
[350] S D Warren & L D Brandeis, 196.
[351] S D Warren & L D Brandeis, 198-199.
[352] S D Warren & L D Brandeis, 205.
[353] A F Westin, Privacy and Freedom, p 7.
[354] Cf R Wacks, (1993), 14 - 15.
[355] UN Human Rights Committee, General Comment 16/32 of 23 March 1988, para 10.
[356] M Nowak, (1993), 296.
[357] Restatement 2d, Torts, § 652D.
[358] Mr Browne’s Bill, cl 7; Lord Mancroft’s Bill, cl 1.
[359] Para 12.17. The Committee recommended that business, professional and official material be specifically excluded: para 12.18.
[360] The UK Consultation Paper, Annex B, para 2(iv).
[361] 57 ALR3d 16 § 3; 62A Am Jur 2d §§100-101.
[362] Cf Bradley v Wingnut Films Ltd [1993] 1 NZLR 415.
[363] Restatement 2d, Torts, § 652D, Comment b.
[364] T I Emerson, at 343.
[365] M Nowak, 296.
[366] Restatement 2d, Torts, § 652D, Comment b.
[367] Warren and Brandeis, 214-5.
[368] R Wacks, (1993), 26. This definition contains an objective test which operates to limit personal information to what is both descriptively and normatively acceptable to society. Such a test is lacking in the definition of “personal data” in the Personal Data (Privacy) Ordinance. All recorded data which relate directly or indirectly to a living individual are covered by the Ordinance; personal data which are not regarded as intimate or sensitive are not excluded from its ambit. There are mainly two reasons why the protection under the Ordinance is not limited to sensitive or intimate data: (a) Decisions affecting the individual may be made on the basis of data lacking these qualities. For instance, terrorists have been known to locate targets through address listings in telephone directories. (b) Data are cumulative. The accumulation of trivial data can result in the compilation of profiles which contain meaningful information. See HKLRC, Report on Reform of the Law Relating to the Protection of Personal Data (Topic 27, 1994), paras 8.14 - 8.18.
[369] See Lorenz, “Privacy and the Press - A German Experience” in Butterworth Lectures 1989-90 (London: Butterworths, 1990), 79 at 112.
[370] 112 Cal App 285 (Dist Ct App 1931).
[371] W L Prosser, “Privacy” (1960) 48:3 California Law Review 383 at 419.
[372] But see Rehabilitation of Offenders Ordinance (Cap 297).
[373] 113 F2d 806 (2d Cir, 1940).
[374] Lorenz, at 113.
[375] The relevance of the status of being a public figure to a public interest defence will be discussed in Chapter 11.
[376] They recommended that “anyone having a sufficient interest” should be able to seek civil remedy in respect of the publication of private material or photographs obtained by committing any of the proposed criminal offences: Calcutt Report, para 6.38.
[377] Law Reform Commission of Ireland, para 9.31.
[378] The Law Commission, Breach of Confidence (Law Com. No. 110) (London: HMSO, Cmnd. 8388, 1981), paras 6.35 - 6.38.
[379] The Law Commission, Breach of Confidence, para 6.38. The United Kingdom Government has accepted the Commission Report on Breach of Confidence and has agreed to implement the proposals subject to Parliamentary time being available.
[380] This issue is also discussed in the Annexure to this report.
[381] R Wacks, (1993), 259-261; R Wacks (1995), 133-143.
[382] Restatement 2d, Torts, § 652D, Comment a. American Jurisprudence observes that: “While an actionable disclosure is generally one made only to a large number of people, it cannot be said that disclosure of embarrassing private facts to a comparatively small number of people will automatically be insufficient to constitute a public disclosure. There is no magic formula or ‘body count’ that can be given to permit counsel to determine with certainty whether the number of persons to whom private facts have been disclosed will be sufficient in any particular case to satisfy the public disclosure requirement. The concept of public disclosure is not subject to precise or rigid formulae but is flexible, and the facts and circumstances of a particular case must be taken into consideration in determining whether the disclosure was sufficiently public so as to be actionable.” See 62A Am Jur 2d, Privacy, § 95.
[383] E J Bloustein, at 981.
[384] D L Zimmerman, “Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort”, (1983) 68 Cornell LR 291, 334.
[385] E J Bloustein, at 983-984.
[386] A F Westin, 34.
[387] (1849) 2 De G & Sm 652, 64 ER 293.
[388] S D Warren and L D Brandeis, at 213 - 214.
[389] See Chapter 1.
[390] E J Bloustein, at 979, citing Bazemore v Savannah Hosp, 171 Ga 257 (1930) and Cason v Baskin, 155 Fla 198 (1944) as authorities.
[391] For a discussion of the common law “multiple publication” rule and the more modern “single publication” rule, see 62A Am Jur 2d, Privacy, § 244.
[392] Daily Times Democrat v Graham (1964) 162 So (2d) 474.
[393] J L Litwin, “Public Disclosure of Person’s Indebtedness as Invasion of Privacy” 33 ALR3d 154.
[394] The limited disclosure (as opposed to public disclosure) of personal data will continue to be governed by existing laws such as the Personal Data (Privacy) Ordinance and the law relating to breach of confidence.