Chapter 1 - The right of privacy

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International Covenant on Civil and Political Rights

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

United Nations report on privacy

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; ... .”

The Hong Kong Bill of Rights Ordinance

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.

The Basic Law of the Hong Kong Special Administrative Region

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.

Definitions of “privacy”

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

Functions of privacy

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<