Hong Kong Law Reform Commission

Preface

• Background
• Social Responsibility of the news Media
• Structure of this consultation paper

Background

1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of “privacy”. The Commission’s terms of reference are as follows:

“To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters:

(a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;

(b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong;

(c) intrusion (by electronic or other means) into private premises; and

(d) the interception of communications, whether oral or recorded;

but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence.”

2. The Law Reform Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the sub-committee are:

3. The secretary to the sub-committee is Mr Godfrey K F Kan, Senior Government Counsel.

4. The sub-committee has examined the law in relation to the following subjects: (a) the protection of personal data; (b) surveillance; (c) the interception of communications; (d) stalking; and (e) civil liability for invasion of privacy. The purpose of this consultation paper is to examine whether legislative or other measures are needed to provide protection against undue interference with the privacy of individuals by the news media in addition to those proposed in the consultation papers on Stalking, Civil Liability for Invasion of Privacy, Surveillance and the Interception of Communications. We examine the problem of media intrusion because the media are most likely, by the nature of their activities, to infringe on individuals' privacy.

Social Responsibility of the news Media

5. The concept of media social responsibility was first given prominence through the work of the Hutchins Commission on Freedom of the Press in the United States.[1] The World Association of Press Councils recognises that the free press must be accountable to the public, though not to government. It declares that “it is implicit and inherent in the institution of a free press that the press exercise its powers and duties in a responsible manner”.[2]

6. In a comprehensive survey of Hong Kong journalists conducted in 1990,[3] the overwhelming majority of journalists responded that the following values were important to the profession: report objectively (95%); inform public promptly (95%); analyse and interpret complex issue (92%); be a watchdog of government (88%); and speak for the public (80%). About 65% of the journalists considered it important “to educate the public” and “to raise the cultural level of the masses”. Only about a third thought it important for news organisations “to meet the popular taste” and “to provide entertainment”. The “social significance of event” was the most important factor affecting journalists’ news judgment.

7. However, some media organisations have given priority to their economic needs. A public opinion survey conducted by the HKU Social Sciences Research Centre in March 1999 found that as many as 41% of the respondents considered that the news media were “irresponsible” in their reporting, up from 24% in September 1997; and that only 17% of the respondents considered that the news media were “responsible”, down from 41% in September 1997.[4] Another survey conducted by the Department of Journalism and Communication at the Chinese University reveals that the problems associated with newspapers are ethical rather than political in nature, and that market competition is the reason which leads to the lack of media ethics.[5] The survey has also registered a decline in the credibility of all newspapers in Hong Kong.

8. All Hong Kong media organisations, other than Radio Television Hong Kong, which is a government department, are businesses running for profit. They face competition which was unknown in the past. New agencies, such as subscription television, satellite television, video-on-demand programme services and the various services offered on the Internet, are taking business away from local publishers and broadcasters. In the face of keen competition, the overriding concern of media proprietors will always be to maintain or increase market share. Commercial pressure may therefore prevail over professional and ethical standards. Some sections of the news media find it difficult not to use material which other organisations may wish to include in their newspapers or programmes. The fear that a competitor gets a scoop the next day put some editors and journalists under great pressure to intrude into the private lives of individuals even though no vital public interest is at stake. In order to halt the decrease in the size of readers or to increase circulation, some sections of the press provide more coverage for sensational stories about people’s private lives. The reason being the more personal the information, the more readers a newspaper will attract. But sensationalism poses a threat to media ethics, especially in the means by which material is obtained and the manner in which a story is presented.

9. The domination of the press by Apple Daily and Oriental Daily News has also been a growing concern. Before The Sun started publication in March 1999, Apple Daily and Oriental Daily News accounted for about 70% of total newspaper readership.[6] The lapse in ethical standards in one of the mainstream newspapers will not only undermine the credibility of that newspaper, but also the credibility of the entire news media. The notion of social responsibility is therefore particularly relevant to the press operating in such an environment. As observed by Joseph Pulitzer:[7]

“Nothing less than the highest ideals, the most scrupulous anxiety to do right, the most accurate knowledge of the problems it has to meet, and a sincere sense of moral responsibility will save journalism from a subservience to business interests, seeking selfish ends, antagonistic to public welfare.”

10. An editorial of the Hong Kong Standard suggests that the public should be vigilant over media intrusion:

“Unfortunately for those who fall victim to such media harassment the line between the public’s right to know and the individual’s right to privacy can sometimes be hard to define. More often than not it falls to a handful of media people to draw this line. Just as often their decisions are dictated by the market. And, especially in a place like Hong Kong, the market is all that matters. Those who argue that this is neither fair nor moral may have a point. But unless the community speaks out, the market is what matters.”[8]

11. The Statement of Principles adopted by the American Society of Newspaper Editors provides, inter alia, that:[9]

“The First Amendment, protecting freedom of expression from abridgement by any law, guarantees to the people through their press a constitutional right, and thereby places on newspaper people a particular responsibility. ... The primary purpose of gathering and distributing news and opinion is to serve the general welfare by informing the people and enabling them to make judgments on the issues of the time. Newspapermen and women who abuse the power of their professional role for selfish motives or unworthy purposes are faithless to that public trust.”

12. The MacBride Final Report commissioned by the United Nations Educational, Scientific and Cultural Organisation stated that:

“[t]he concept of freedom with responsibility necessarily includes a concern for professional ethics ... . Such values as truthfulness, accuracy and respect for human rights are not universally applied at present. Higher professional standards and responsibility cannot be imposed by decree nor do they depend solely on the goodwill of individual journalists, who are employed by institutions which can improve or handicap their professional performance. ... As in other professions, journalists and media organisations serve the public directly and the public, in turn, is entitled to hold them accountable for their actions. Among the mechanisms devised up to now in various countries for assuring accountability, the Commission sees merit in press or media councils, the institution of the press ombudsman and peer group criticism of the sort practised by journalism reviews in several countries. ... Codes of professional ethics exist in all parts of the world, adopted voluntarily in many countries by professional groups. The adoption of codes of ethics at national and, in some cases, at the regional level is desirable, provided that such codes are prepared and adopted by the profession itself - without governmental interference.”[10]

13. We believe that the following views of Mr Tung Chee Hwa, the Chief Executive of the Hong Kong SAR, have the support of the general public: [11]

“The print and electronic media should not allow themselves to be driven all the way by the markets. They should not take no notice of the impact they would make on the community for the sake of good circulation and profit making. The press and other forms of media are some sort of public instruments, which work influence on the public and should therefore take up their social responsibility as well. The principle of truthfulness and impartiality should be upheld in news reporting. The practice of the media should be monitored by the public.”

14. We maintain that social responsibility can coexist with press freedom and autonomy for news organisations. Freedom and responsibility are not mutually exclusive.

Structure of this consultation paper

15. We shall examine in Chapter 1 the relationship between the right to privacy and freedom of expression. The extent to which media intrusion is a problem in Hong Kong is explored in Chapter 2. Chapter 3 gives an overview of the developments in Australia, Canada, Germany, New Zealand, Peru, Sweden, Taiwan, the United Kingdom and the United States. The role played by the professional bodies in Hong Kong is assessed in Chapter 4. Whether self-regulation is the answer to the problems arising from media intrusion will also be examined in that chapter. The feasibility of employing the existing frameworks under the Personal Data (Privacy) Ordinance and the Broadcasting Authority Ordinance to protect individuals from media intrusion will be discussed in Chapters 5 and 6 respectively. The desirability of creating an independent body by law to regulate press intrusion will be explored in Chapter 7. The composition, functions and powers of such an independent body will be examined in Chapter 8.

16. Unless the context otherwise requires, the term “journalists” in this Consultation Paper includes reporters, press photographers, columnists, news presenters, news executives and editors.

[1] A panel appointed by the Commission issued a report entitled A Free and Responsible Press in 1947. The Report contained an analysis of the need for a socially responsible press. It identified five obligations of the media: (a) to provide “a truthful, comprehensive, and intelligent account of the day’s events in a context that gives them meaning; (b) to serve as “a forum for the exchange of comment and criticism”; (c) to project “a representative picture of the constituent groups in society”; (d) to be responsible for “the presentation and clarification of the goals and values of society”; and (e) to provide “full access to the day’s intelligence”.
[2] At <http://www.presscouncil.org.au/pcsite/wapc/const.html> (18.1.99). The Association has 17 members in 1998.
[3] J M Chan, P S N Lee & C C Lee, Hong Kong Journalists in Transition (The Chinese University of Hong Kong, Hong Kong Institute of Asia-Pacific Studies, 1996), chapter 5.
[4] HKU Social Sciences Research Centre, Pop Express, Special Release of 19 April 1999.
[5] J M Chan, Y K So & C C Lee, “Survey on the Performance of the Hong Kong Media after the Handover”, Jan 1999.
[6] Hong Kong Economic Journal, 18 March 1999, p 10; citing the 1998 Media Index compiled by AC Nielsen.
[7] Louis A Day, Ethics in Media Communications – Cases and Controversies (Wadsworth Publishing, 2nd edn, 1997), p 36, quoting J Pulitzer, “The College of Journalism”, North American Review, 178, May 1904, p 658
[8] Hong Kong Standard, 2 September 1997.
[9] Reproduced in Louis A Day, above, Appendix 2.
[10] International Commission for the Study of Communication Problems, Many Voices One World (Chairman: Sean MacBride SC) (UNESCO, 1980), paras 38 - 43.
[11] CE’s opening speech at the 31st Annual Conference of the Chinese Language Press Institute, 23 Nov 1998. Following reports in the press about the relationship between the Commissioner of Inland Revenue and two kindergartens run by the Hong Kong Ling Liang Church, 319 parents published a statement in the press in June 1999, appealing to the media for giving due regard to journalistic ethics and social responsibility. The statement reads: “1) To boost circulation, some sections of the media have exaggerated unverified information and used terms such as ‘suspected’ and ‘alleged’ when drawing a conclusion that had been arrived at without much careful thought or when casting a slur on a person’s reputation; even innocent parties are implicated without much concern for the effects on them. This malpractice of ‘inflicting harm to a person by mobilising public opinion’ not only damages the reputation of the individuals and organisations concerned but also violates human dignity and corrupts the moral ethos of a society. 2) Some sections of the media even frequently give undue publicity to sex and violence, pander to the public’s curiosity for the purpose of improving circulation, fabricate news and vilify the subjects of news stories. All these practices have brought incalculable damage to our next generation; and more and more parents are deeply dissatisfied with the situation. We urge the media to exercise self-discipline and demand that they give due regard to journalistic ethics and social responsibility when pursuing their commercial interests. Otherwise, once the media have lost credibility, they will suffer a decline in readership eventually.” See “A Declaration in relation to the Reportage about Ling Liang Church Kindergartens and an Appeal to the Hong Kong News Media from a Group of Parents”, Ming Pao Daily News, 30 June 1999, B12.