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Hong Kong Law Reform Commission |
1.1 Prior to the handover in July 1997, the rights and freedoms
protected by the International Covenant on Civil and Political Rights were
entrenched by the Hong Kong Letters
Patent.[12] Since July 1997, the
Basic Law of the Hong Kong SAR has replaced the Letters Patent and the Royal
Instructions as the constitution of Hong Kong. Article 39 of the Basic Law
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 freedom 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.”
1.2 The
Preamble of the Basic Law states that the Basic Law was enacted “in order
to ensure the implementation of the basic policies of the PRC regarding Hong
Kong.” These “basic policies” were elaborated by the PRC
Government in Annex I to the Sino-British Joint Declaration on the Question of
Hong Kong, including the policy that the Hong Kong Government “shall
maintain the rights and freedoms as provided for by the laws previously in force
in Hong Kong, including freedom of the person, of speech, [and] of the
press”.[13]
1.3 Article
27 provides that Hong Kong residents are entitled to enjoy “freedom of
speech, of the press and of publications”. This Article merely identifies
a particular group of rights and freedoms which the Basic Law guarantees. It
does not purport to prevent the enactment of restrictions on those rights.
Article 39 permits restrictions on the rights to free speech and freedom of the
press guaranteed by Chapter III of the Basic Law, provided that these
restrictions are provided by law and are compatible with the international
covenants on human
rights.[14]
1.4 Freedom of expression is one of the basic human rights protected
under the International Covenant on Civil and Political Rights (ICCPR).
Paragraphs 2 and 3 of Article 19 of the Covenant provide:
“2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public order (ordre public), or of public health or morals.”
1.5 It
is noteworthy that the following proposed sentence was not included in the
General Comment of the UN Human Rights Committee on Article 19: “This is a
right the effective enjoyment of which is essential to enable individuals to
ensure for themselves the enjoyment of other rights protected in the
Covenant.”[15] It is arguable
that the failure to include the sentence indicates that although freedom of
expression is important, it is not accorded the pre-eminence given to it under
the American
constitution.[16]
1.6 Freedom of expression is capable of violating the rights of others, including privacy. Article 19 of the Covenant states that the exercise of the right to freedom of expression carries with it “special duties and responsibilities”. The reference to “special duties and responsibilities” was adopted in order to offer States Parties an express tool to counter abuse of power by the modern mass media. States which supported these proposals were of the opinion that freedom of expression was a “dangerous instrument” as well as precious heritage. They maintained that, in view of the powerful influence the modern media exerted upon the minds of man and upon national and international affairs, the “duties and responsibilities” in the exercise of the right to freedom of expression should be especially emphasised.[17]
1.7 The UN Human Rights Committee has not commented on the
nature of these duties and responsibilities except that it is “the
interplay between the principle of freedom of expression and such limitations
and restrictions which determines the actual scope of the individual’s
right.”[18] But the
expression is generally presumed to include the duty to present information and
news truthfully, accurately and
impartially.[19] It has also been
suggested that it obligates the speakers not to abuse their power at the expense
of others.[20] In determining the
nature of the “duties and responsibilities”, one has to find out the
status of the person in question, the content of the information expressed, and
the medium chosen for such expression. It is arguable that a person who chooses
to publish in a newspaper, private information about children, victims of crime,
or other vulnerable persons, is under a special responsibility not to harm the
individual concerned.
1.8 By virtue of the ICCPR, freedom of expression
may be subject to such restrictions as are necessary for respect of the rights
of others. Manfred Nowak remarks that none of the restrictions on freedom of
expression, including censorship, prohibition of dissemination, confiscation,
prohibitions regarding speaking at an assembly etc, is absolutely prohibited by
Article 19.[21] He says each type
of interference must be examined on the basis of the limitations in paragraph 3
whether it is permissible in a particular case. The travaux
préparatoires reveals that only with respect to prior censorship that
an absolute prohibition was
intended.[22]
1.9 A
permissible restriction must be “provided by law”, may only be
imposed for one of the specified purposes, and must be “necessary”
for achieving that purpose. The requirement of necessity implies that the
restriction must be proportional in severity and intensity to the purpose being
sought. In contrast to other provisions in the Covenant, Article 19(3) lacks a
reference to the necessity in a democratic society. It is therefore arguable
that the relevant criterion for evaluating the necessity of restrictions is not
the principle of democracy but rather whether it was proportional in a
particular
case.[23]
1.10 Although the
General Comment given by the Human Rights Committee does not comment on the
scope of the specified grounds of restriction in paragraph 3, the Committee has
held that restrictions might be considered acceptable on the bases that a
programme encourages homosexual behaviour, that the audience cannot be
controlled, and that harmful effects on minors cannot be
excluded.[24] Nowak suggests that
the “other rights” whose protection might justify restrictions on
freedom of expression also include the right of privacy under
Article 17:
“Even though the drafters of Art. 19 expressly adopted the right to seek information actively, this does nothing to change the duty on States Parties flowing from Art. 17 to protect the intimacy of the individual against sensational journalism. Above all, the legislature must prevent abusive access to personal data. Furthermore, Art. 14(1) expressly provides the possibility of limiting the access of the public and particularly the media to court proceedings in the interest of the private lives of the parties.
The protection of the rights and reputations of others may be ensured by measures of criminal, civil and/or administrative law. For instance, criminal provisions dealing with defamation, derision or slander are as justified by Art. 19(3) as copyright provisions or compensation claims under civil law by a person whose honour has been violated or privacy otherwise infringed.”[25]
1.11 As
regards the expression “protection of morals” in Article 19, it may
imply safeguarding the moral ethos or moral standards of a society as a whole,
but may also cover protection of the moral interests and welfare of certain
individuals or classes of individuals who are in need of special protection
because of lack of maturity, mental disability or state of
dependence.[26] As far as the
protection of individuals is concerned, the expression protects the
psychological as well as the physical well-being of individuals and, where a
child is involved, it covers a child’s mental stability and freedom from
serious psychic
disturbance.[27]
1.12 Even
if a restriction cannot be brought within the exceptions in paragraph 3, resort
may be had to Article 5(1) of the ICCPR which authorises interference in a
narrow range of circumstances. This article ensures that the right to freedom
of expression would not be misused by private parties to destroy the rights of
others. It provides that:
“Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.”
1.13 The
purpose of Article 5(1) is to prevent the abuse of any one of the rights and
freedoms declared in the Covenant for the purpose of prejudicing one or more of
the others. The rights capable of being misused includes the freedom of
expression in Article 19. Hence, the freedom may be denied to a person who
incites racial discrimination. For present purposes, there are two aspects to
Article 5(1). First, any limitation on exercise of the right to freedom of
expression must not be greater than is provided for in the Covenant. Secondly,
the exercise of that right cannot aim at the destruction of the right of privacy
under Article 17.
1.14 Freedom of expression is also protected under Article 10 of the
European Convention on Human Rights. The European Court of Human Rights
expressed the view that freedom of expression constitutes “one of the
essential foundations of a democratic society and one of the basic conditions
for its progress and for each individual’s
self-fulfilment,”[28] and that
it is applicable to information and ideas that “offend, shock or disturb
the State or any section of the
community”.[29]
1.15 In
enunciating the principles underlining the freedom of expression, the Strasbourg
authorities have put a high value on informed discussion of matters of public
concern. The European Court has therefore ascribed a hierarchy of value, first
to political expression, then to artistic expression and finally to commercial
expression.[30] Furthermore, the
Court is mindful of the fact that journalistic freedom also covers
“possible recourse to a degree of exaggeration, or even
provocation.”[31] Although it
must not overstep certain bounds set, inter alia, for the protection of
the reputation of others, it is nevertheless incumbent on it “to impart -
in a way consistent with its duties and responsibilities - information and ideas
on political questions and on other matters of public
interest.”[32]
1.16 Common
law recognise that press freedom has to be balanced against other interests. In
carrying out this balancing exercise in a particular case, a judge would
distinguish what he thinks deserves publication in the public interest and
things in which the public are merely interested. Hoffmann LJ points out that a
freedom which is restricted to what judges think to be responsible or in the
public interest is no freedom. In his
judgment:[33]
“Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute. ...
It cannot be emphasised too strongly that outside the established exceptions, or any new ones which Parliament may enact in accordance with its obligations under the [European Convention on Human Rights], there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.” (emphasis added)
1.17 Jurisdictions
in Europe which are State Parties to the European Convention on Human Rights
treat the rights of privacy and free expression as fundamental human rights
having equal status. Both rights are subject to limitations necessary for the
protection of the rights of
others.[34] There is no rights
hierarchy under the Convention by reference to which a conflict between privacy
and free expression may be resolved. According to this view, the two rights
must be balanced. One will not inevitably trump the
other.[35]
1.18 Under the European Convention, the exercise of freedom of expression may be subject to such restrictions as are “necessary” in a democratic society for the protection of the rights of others. The adjective “necessary” has been construed by the European Court of Human Rights as implying the existence of a “pressing social need”. In addition, the interference must be “proportionate to the legitimate aim pursued” and the reasons adduced to justify it must be “relevant and sufficient”.[36] The proportionality test implies that the pursuit of the countervailing interests mentioned in Article 10 of the Convention has to be weighed against the value of open discussion of topics of public concern. When striking a fair balance between the countervailing interests and the right to freedom of expression, the court should ensure that members of the public would not be discouraged from voicing their opinions on issues of public concern for fear of criminal or other sanctions.[37]
1.19 The European Commission of Human Rights agrees that, in general, the restriction of true statements requires the application of a stricter test of necessity than the restriction of false or misleading allegations. However, it recognises that the truth of information cannot be the only criterion for being allowed to publish it. True statements can interfere with legitimate interests which deserve an equal degree of protection as freedom of expression, eg where the sphere of privacy or the honour and reputation of a person is at issue or where legal obligations of confidentiality have been breached.[38] The European Court of Human Rights affirms this view, holding that:
“even the publication of items which are true and describe real events may under certain circumstances be prohibited: the obligation to respect the privacy of others or the duty to respect the confidentiality of certain commercial information are examples. In addition, a correct statement can be and often is qualified by additional remarks, by value judgements, by suppositions or even insinuations. It must also be recognised that an isolated incident may deserve closer scrutiny before being made public; otherwise an accurate description of one such incident can give the false impression that the incident is evidence of a general practice.”[39]
1.20 Justice Brandeis explained the origins of the First Amendment to
the American Constitution, which states in part, “Congress shall make no
law ... abridging the freedom of speech, or of the press ...”:
“Those who won our independence ... valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”[40]
1.21 The
US Supreme Court held that the First Amendment supports the view that the press
must be left free to publish news without censorship, injunctions or prior
restraints:
“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”[41]
1.22 However,
the First Amendment does not confer an absolute right to publish, without
responsibility, whatever one may choose. The authors of American
Jurisprudence elaborate:
“The extraordinary protections afforded by the First Amendment’s guarantee of free speech and press carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly, a duty widely acknowledged but not always observed by the press. It does no violence to the value of freedom of speech and press to impose a duty of reasonable care upon those who would exercise such freedoms; the states have a substantial interest in encouraging speakers to carefully seek the truth before they communicate, as well as in compensating persons actually harmed by false descriptions of their personal behavior. ... Whenever the constitutional freedoms of speech and associations are asserted against the exercise of valid governmental powers, a reconciliation must be effected, requiring an appropriate weighing and balancing of the respective interests involved.” [42]
1.23 Hence,
although the language is absolute in its prohibition of limitations on the
press, the right of free speech is not absolute at all times and under all
circumstances. Freedom of speech does not comprise the right to speak whenever,
however, and wherever one pleases, and the manner, place, or time of public
discussion can be constitutionally
controlled.[43]
1.24 As
Laurence Tribe explains, the US Supreme Court has developed two approaches for
resolving First Amendment
claims.[44] Government regulation
which aims at ideas or information, in the sense of singling out actions for
government control or penalty because of the specific message or viewpoint such
actions express, is presumptively at odds with the First Amendment. On the
other hand, if the regulation is not aimed at ideas and information but has the
indirect result of restricting speech, the regulation is constitutional as long
as it does not unduly restrict the flow of information and ideas. The latter
approach requires the “balancing” of competing interests in the
sense that the values of freedom of expression and the government’s
regulatory interests will be balanced on a case-by-case basis. Hence, the
American government is allowed to regulate speech on the ground that the
expression falls outside the First Amendment’s purposes or fails to
satisfy its premises, as when the message suppressed poses a “clear and
present danger” or otherwise falls within one of the categories of
expression which are not privileged by the First Amendment, such as: (1)
portrayal of minors in sexual roles, (2) infringement of copyright, (3)
obscenity, (4) defamatory falsehood, (5) contempt of court, and (6) several
categories of atomic, military and intelligence
information.
1.25 Likewise, it is well settled that the right of free
press may be subject to legislative restriction within proper limits. Although
states cannot violate the constitutional guarantee of freedom of the press, the
publisher of a newspaper or magazine has no special privilege to invade the
rights and liberties of others.[45]
They are subject to reasonable regulation like other citizens. So long it does
not involve suppression or censorship, the regulation of newspapers is as broad
as that over other private
business.[46] The Court has held
that the power to regulate the business of newspaper publishers may be exercised
in the interest of public health, morals, safety, and
welfare.[47] Nonetheless, a state
may not punish a newspaper for the publication of truthful and lawfully obtained
information about a matter of public significance, except when necessary to
further a state interest of the highest
order.[48]
1.26 The extent to which the right to privacy may be reconciled with
freedom of speech turns on a number of
considerations:[49]
“Broadly speaking, justifications for free speech are either consequentialist or rights-based. The former normally draw on the arguments of Milton and Mill (from truth or democracy), while the latter conceive of speech as an integral part of an individual’s right to self-fulfilment. When it comes to defending free speech these arguments tend invariably to be amalgamated, and even confused. So, for example, Thomas Emerson discerns four primary justifications which include both sorts of claim: individual self-fulfilment, attainment of the truth, securing the participation by members of society in social, including political, decision-making, and providing the means of maintaining the balance between stability and change in society.
Supporters of ‘privacy’, on the other hand, rely almost exclusively on rights-based arguments. Thus, in his classic exposition, Alan Westin suggests that a right of privacy is essential to protect personal autonomy, allowing us to be free from manipulation or domination by others, to permit emotional release, to afford an opportunity for self-evaluation, and to allow limited and protected communication to share confidences and to set the boundaries of mental disturbance.
Difficulties emerge at once. The extent to which the law may legitimately curtail speech that undermines an individual's ‘privacy’ is often presented as a contest between two heavyweights. But this may be mere shadow-boxing, ... ‘At most points the law of privacy and the law sustaining a free press do not contradict each other. On the contrary, they are mutually supportive, in that both are vital features of the basic system of individual rights.’” [50]
1.27 The
importance of freedom of speech is especially evident with the extraordinary
development of the Internet and the resulting access to information. The
so-called “information superhighway” provides hitherto unimagined
opportunities both to obtain and to receive information on almost any
subject.[51] In order to understand
the principles underlying freedom of speech, we examine in the following
paragraphs, the political and philosophical arguments which might justify its
inclusion in the international covenants. According to traditional views, the
free speech principle serves four main functions: (a) ascertainment and
publication of truth; (b) individual self-development and fulfilment; (c)
participation in a democracy; and (d) safety valve
function.[52]
1.28 In accordance with this theory, open discussion with no
restraint will lead to the discovery of truth. However, not all speech is
protected by the free speech principle. Even the most liberal democracies ban
speech which incites violence, interferes with the administration of justice, or
discloses state secrets or confidential commercial
information.[53] Likewise, the
requirement of decency and the interests in the protection of children require
that hard-core pornography should be prohibited. Whereas publications about
public officials and public figures are protected if they contain information
relevant to the public’s assessment of their suitability for office or
general worth as a public figure, newspaper articles about the private lives of
ordinary individuals do not generally constitute “speech” if the
publication cannot be justified on any of the grounds supporting free
speech.[54] Although everyone
should, in principle, have the liberty to express and publish true facts, this
liberty does not extend to truth which causes private individuals annoyance or
embarrassment without any corresponding benefit to the public. The publication
of private facts which interferes with a person’s private realm and is of
no legitimate concern to the public should be restrained even though the facts
are true.
1.29 Frederick Schauer argues that it is not always the case
that knowing the truth is better than living under a misconception. Even if we
are to accept that it is always better to know the truth than to be deceived by
a false belief, knowing the truth does not necessarily put one in a better
position than one who has no belief at all. The gain in knowledge may simply be
an addition rather than the substitution of the true for the
false.[55] Furthermore, it does not
follow that an increase in knowledge by a person is good in itself, either for
that person or for society. Knowledge that an identifiable individual is a gay,
an alcoholic or a welfare recipient has no intrinsic value if the individual
concerned is merely an ordinary citizen. An increase of knowledge about such
private facts might harm the interests of the individuals concerned without any
corresponding benefit to society and the publisher.
1.30 We would add
that giving undue emphasis to attainment of truth would render investigative
journalism and academic research using human subjects difficult:
“The more reliable and systematic methods of attaining truth about human matters, such as research and responsible ‘human interest’ journalism, could be threatened by the sensationalised and often misleading disclosures of the tabloid press. Journalists themselves get many of their best stories by guaranteeing the anonymity of their informants or subjects, or by agreeing that some things will be ‘off the record’ ... . Often the truth on social issues and matters of lifestyle and human behaviour will more likely be discovered by protecting privacy than by violating it.”[56]
1.31 Freedom of expression is essential to the realisation of a
person’s character and potentialities as a human being. Restraining a
person from expressing himself would not only inhibit the growth of his
personality but would also affront his dignity. It is only through public
discussion that individuals could formulate their own beliefs and develop
intellectually and spiritually. But Alan Westin points out that privacy also
contributes to the development of individuality:
“This development of individuality is particularly important in democratic societies, since qualities of independent thought, diversity of views, and non-conformity are considered desirable traits for individuals. Such independence requires time for sheltered experimentation and testing of ideas, for preparation and practice in thought and conduct, without fear of ridicule or penalty, and for the opportunity to alter opinions before making them public.”[57]
Freedom
of speech and privacy therefore complement each other in working toward the same
goal of individual self-fulfilment.
1.32 The free speech principle may also be viewed as a means by which
citizens participate in social and political decision-making. Public discussion
and debate of social and political issues assist citizens in understanding such
issues and forming their own opinion on matters affecting their lives. This
would in turn enable them to check government misconduct and to participate
effectively in the operation of a democratic government. Freedom of speech is
therefore essential to representative self-government. The argument from
democracy is particularly applicable to the press because speech via the mass
media contributes more to the democratic dialogue than speech via other
means.
1.33 However, free speech is not the only means to facilitate
citizen participation in social and political decision-making. One of the basic
requirements of democracy is the moral autonomy of citizens. To the extent that
privacy fosters and encourages autonomy, privacy is also important to democratic
government.[58] Allowing free
discussion in private would contribute to a pluralistic society and protect
those who question mainstream thoughts and values. Protecting individuals from
unwanted publicity therefore facilitates public discussion and effective
participation in a democratic government. The freedom to express ideas and
opinions would be undermined if individual privacy is not protected against
intrusion.
1.34 Ruth Gavison adds that protecting privacy can attract
talented individuals to serve the community by assuring that they would not be
exposed to unwanted publicity merely because they enter public
life.[59] An absolute claim to free
speech would discourage people from participating in public affairs:
“Because it is probably possible to unearth some embarrassing facts about anyone, many individuals may decide to avoid becoming public figures. Therefore, a pattern of investigation and disclosure may seriously limit the life plans of worthy individuals and cost society its more explorative and inventive potential leaders. The leaders are then likely to be individuals who have never tried anything nonconformist or extraordinary, who never challenged accepted norms, and who never made mistakes.”[60]
1.35 As
far as individual self-fulfilment and citizen participation are concerned, the
interests in privacy are consistent with those in freedom of speech. Privacy
and free speech serve the same values and are complementary to each
other:
“In many cases where privacy and free speech conflict at a superficial level, they are at a deeper level merely two different modes of giving effect to the same underlying concerns. It is possible that in at least some of these cases, free speech values will be better served by protection of privacy than by permitting publication.”[61]
1.36 According to Thomas
Emerson,[62] freedom of expression
provides a framework in which the conflict necessary to the progress of a
society can take place without destroying the society. Open discussion promotes
greater cohesion in a society because people are more ready to accept decisions
that go against them if they have a part in the decision making process. On the
other hand, suppression of discussion has the following disadvantages:
h it makes a rational judgment impossible, substituting force for reason;
h it promotes inflexibility and stultification, preventing society from adjusting to changing circumstances or developing new ideas; and
h it conceals the real problems confronting a society, diverting public
attention from the critical issues.
1.37 The press is singled out for protection because it is more
vulnerable to government control than individual speakers. Unless checked by
the constitution, the government can impose restrictions on the press which
would not be applicable to individual speakers, such as heavy taxation on
publishing companies, requirements of large bonds to start a newspaper, and
injunctions against future
issues.[63]
1.38 In an
attempt to resolve the controversy as to whether the right to press freedom is a
right of proprietors or a right of editors or journalists, it has been argued
that press freedom is an institutional right rather than a set of individual
free speech rights exercised by the individual journalists and
proprietors.[64] Seen in
this perspective, the primary purpose of the press clause is to create a fourth
institution outside the Government as an additional check on the executive,
legislature and judiciary.[65] It
is in the interest of an informed electorate that the press should be free to
seek and impart information; in particular, to inquire and scrutinise the
actions of government. The institutional nature of the press clause also means
that the government necessarily retains some discretion in deciding how the
press is to be structured. In the opinion of Edwin Baker, rules specifically
directing at the press should not be held unconstitutional under the press
clause unless they are designed to undermine the press’ integrity as an
institution or its independence from
government.[66]
1.39 Under
the Basic Law, the Government of the Hong Kong Special Administrative Region is
accountable to the Legislative Council which is constituted by election. The
Basic Law guarantees that the election of all Council members shall be by
universal suffrage. In a society moving towards a representative democracy, the
electorate would like to find out more about the workings of the Government and
what are being done in their name by their representatives in the legislature.
If democracy is to function effectively, it is essential that the public is
adequately informed as to the actions of Government officials and the elected
representatives. That necessitates a free press. The European Court of Human
Rights held that:[67]
“Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.”
1.40 Vincent
Blasi argues that free expression is valuable in part because of the function it
performs in checking the abuse of official
power.[68] His study reveals that
those who drafted the First Amendment placed great emphasis on the role free
expression can play in guarding against breaches of trust by public officials.
Since the Government has more resources and political power than any political
and private organisations, there is a need for the press which is well-organised
and well-financed to serve as a counter-force to government. The press could
play the role of professional critics who can acquire enough information to pass
judgment on the actions of government, and disseminate their information and
judgments to the general public. The American Supreme Court
held:[69]
“The Constitution specifically selected the press ... to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by government officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were elected to serve.”
1.41
In summary, the media is a “purveyor of information and public
watchdog”.[70] It provides a
forum for public debate on topics affecting the life of the community. It
ensures that the government is accountable to the public through, not only the
dissemination of information, but also the exposure of corruption and abuse of
power. To perform the checking and informative functions, the press must be
constitutionally protected against governmental intervention in their internal
operations.
1.42 The press receives constitutional protection under Article 27 of
the Basic Law which guarantees press freedom as a specific right of Hong Kong
residents. Although neither the ICCPR nor the European Convention mentions
freedom of the press explicitly, it is generally accepted that it forms an
integral part of the freedom of expression under both
instruments.
1.43 The courts in Hong Kong apply a generous and purposive
approach in the interpretation of the Basic
Law.[71] Any ambiguities arising
from the provisions of the Basic Law may be resolved by giving effect to the
principles and purposes to be ascertained from the Basic Law and relevant
extrinsic materials, including the Joint Declaration. The courts may also refer
to any traditions and usage that may have given meaning to the language used in
the
provisions.[72]
1.44 Although
the papers and deliberations of the Basic Law Drafting Committee are not
publicly available, the Final Report on Freedom of the Press adopted by
the Executive Committee of the Basic Law Consultative Committee gives us an
insight into the intentions of the drafters and the purpose and meaning of the
press clause in the Basic Law.[73]
This Report may be treated as an extrinsic aid in ascertaining the intentions of
the drafters. In the paragraph on the functions of the press, the Report
stated:[74]
“In modern society, free flow of information is of great importance. Efficient and free access to information is indispensable to commercial undertakings which would like to join the competition. The press has been rendering a highly significant service to the public in this respect. If members of a modern society are to take part in regional or national affairs actively and sensibly, they need to possess sufficient knowledge of the daily affairs, for instance, to enable them to make a fair decision during elections, and to allow them to maintain their vigilance towards their government. Therefore, modern society requires clear and accurate reports of events happening everyday, including analyses of their background and causes, so as to provide citizens with information for discussion and review. ...
As the press can generate pressure from public opinion to affect government personnel and policy-making, it has become another form of power for check and balance, in addition to the executive, legislative and judicial power, supervising government’s administration, and promoting the growth of society.”
1.45 The
Final Report stated that freedom of the press is subject to restrictions
for the protection of social order, the administration of justice, and personal
rights and interests. It is interesting that the Report expressly mentioned the
protection of reputation and privacy of a person when discussing the scope of
the last
category.[75]
1.46 After
stating that freedom of the press comprises the freedom to run a business in the
mass media; the freedom to gather and impart information; the freedom to express
opinion; and the freedom to receive information and opinion, the Report noted
that the press in Hong Kong generally felt that the Basic Law should have a free
press clause to safeguard press
freedom.[76] It concluded that the
conventions and case law of the capitalist economy of Hong Kong should serve as
the basis on which press freedom could be
interpreted.[77]
1.47 Although press freedom is instrumental in the realisation of
other rights and freedom, this does not mean that the press is free to
investigate or publish anything they wish or anything that their readers wish to
know. The Royal Commission on the Press in the United Kingdom
explained:
“[P]roprietors, contributors and editors must accept the limits to free expression set by the need to reconcile claims which may often conflict. The public, too, asserts a right to accurate information and fair comment which, in turn, has to be balanced against the claims both of national security and of individuals to safeguards for their reputation and privacy except when these are overridden by the public interest. But the public interest does not reside in whatever the public may happen to find interesting, and the press must be careful not to perpetrate abuses and call them freedom.”[78]
1.48 The
Younger Committee was of the view that a substantial invasion of privacy may be
justifiable where it could be shown that the object was to give news “in
the public interest”, but much less often, if the object was to give news
merely “of public
interest”.[79] They concluded
that the processes of inquiry involved in investigative journalism should not be
treated by the law in any different way from other journalistic activities.
Investigative journalism was in principle a legitimate function of the press
“provided that it is carried on within the same rules which bind the
ordinary citizen and the ordinary working journalist
alike.”[80]
1.49 The
press in the United States receives constitutional protection under the First
Amendment. But Thomas Emerson has pointed out that such protection does not
invest the press with a power to compel the production of private
information:
“The press has a constitutional right to obtain information from private sources on a voluntary basis, but it does not have any constitutional power to compel the production of such information. Moreover, there are a number of limitations upon the methods that may be employed. Thus the press is controlled in its quest for information by traditional laws against trespass, theft, fraud, wiretapping, and so on. These recognized restrictions, which are similar to those protecting the right of privacy against any physical intrusion, have not occasioned any serious conflict ... .”[81]
1.50 The Supreme Court of the United States has affirmed that the First Amendment is not a license for the press to violate otherwise generally applicable laws. It noted that there is a “well-established line of decisions” holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report news.[82] The lower federal and state courts have also rejected the argument that the press clause in the Constitution protects the press from criminal and civil liability. In Dietemann v Time, the Ninth Circuit held that the constitutional guarantee of the freedom of the press had never been construed to accord the media immunity from torts or crimes committed during the course of news-gathering:
“We agree that newsgathering is an integral part of news dissemination. We strongly disagree, however, that the hidden mechanical contrivances are ‘indispensable tools’ of newsgathering. Investigative reporting is an ancient art; its successful practice long antecedes the invention of miniature cameras and electronic devices. The First Amendment is not a licence to steal, or to intrude by electronic means into the precincts of another’s home or office. It does not become such a licence simply because the person subjected to the intrusion is reasonably suspected of committing a crime.” [83]
1.51 In
Hong Kong, the media has always been subject to limitations imposed by the
criminal law, including the laws of copyright, theft, fraud and other like
offences. The freedom of the press under the Basic Law gives journalists a
right to obtain information from private sources on a voluntary basis only. It
does not give the press a power to compel a citizen to release information about
himself which he is unwilling to disclose. Nor does it accord journalists
immunity from liability for intruding upon the seclusion or solitude of another.
Prohibiting the use of intrusive means to collect personal data would not
violate the media’s right to freedom of the press. The media can always
practise investigative journalism without employing intrusive means. As far as
news-gathering activities are concerned, the freedom of the press is the freedom
to gather news by fair and lawful means; it is not a freedom to gather news by
means which are unlawful or unfair. From the readers’ and viewers’
point of view, they will continue to enjoy the right to receive information
obtained by fair and lawful means.
1.52 Another point of significance is
that the press in Hong Kong is not subject to any licensing controls. The
registration of a local newspaper under the Registration of Local Newspapers
Ordinance (Cap. 268) is purely a matter of formality. The registration fee is
nominal and there are basically no restrictions on who can own a newspaper. If
the press could enjoy privilege in the gathering of news, any person, including
private investigators, fraudsters and criminals, could take advantage of this
privilege simply by registering as a newspaper proprietor. Needless to say,
such a privilege is open to serious abuse. Insofar as law enforcement officers
have to work within the confines of law and subject to all the checks and
balances in the system, so should journalists who do not have to be registered
with any professional body and are not accountable to anyone except their
employers. Our views on the proposal to grant immunity to the media is best
represented by the following opinion delivered by Fortas J in the American case
of Time v
Hill:[84]
“The courts may not and must not permit either public or private action that censors or inhibits the press. But part of this responsibility is to preserve values and procedures which assure the ordinary citizen that the press is not above the reach of the law - that its special prerogatives, granted because of its special and vital functions, are reasonably equated with its needs in the performance of these functions. For this Court totally to immunize the press - whether forthrightly or by subtle indirection - in areas far beyond the needs of news, comment on public persons and events, discussion of public issues and the like would be no service to freedom of the press, but an invitation to public hostility of that freedom.”
1.53 Press
freedom under Article 27 of the Basic Law must be weighed against other rights
and freedoms specified in the Basic Law. Of particular relevance to our study
are the right not to be subjected to “arbitrary or unlawful ... intrusion
into a resident’s home or other premises” under Article 29 and the
right to “freedom and privacy of communications” under Article 30.
Except for a few privileges recognised by the law, the press should not have any
special rights distinct from those of the ordinary citizen.
1.54 Article 19 of the ICCPR provides that freedom of expression
includes “freedom to seek, receive and impart information and ideas of all
kinds”. A motion to replace the word “seek” with
“gather”, thus excluding the right of active inquiry, was defeated
in the UN General Assembly. The States voting against the motion stated that
active steps to procure and study information should be protected and that any
abuse on the part of journalists could be sufficiently prevented under the
limitations clause in paragraph
3.[85] The right to seek
information is of particular importance to the press. The right of the press to
acquire information is justified on the grounds that it is desirable to have an
informed electorate which is able to assess the wisdom of governmental
decisions. Lord Simon said:
“The first public interest is that of freedom of discussion in a democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on the facts and arguments relevant to the decisions. Much of such fact finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument. This is the justification for investigative and campaign journalism.”[86]
1.55 No
citizen can obtain for himself all the information needed for the intelligent
discharge of his political and social responsibilities. The dissemination of
information by the press is often the means by which the public first discovers
that an issue is a matter of public importance. The American Supreme Court
acknowledged that “the free press has been a mighty catalyst in awakening
public interest in governmental affairs, exposing corruption among public
officers and employees and generally informing the citizenry of public events
and occurrence.”[87] Although
the Supreme Court has rejected the argument that the First Amendment creates a
special right of the press to gain access to information, it has acknowledged
that “without some protection for seeking out the news, freedom of the
press could be
eviscerated.”[88]
1.56 However, the argument that it is a function of the press to keep
the public informed on social issues can only justify a right to impart or
receive information without undue interference. It does not give the
press a privilege to compel others to disclose information which they are
unwilling to impart, nor does it entitle the press to use intrusive means to
acquire personal information which others wish to keep private. The freedom to
seek and receive information under Article 19 imposes no duty on any person to
disclose information that he is reluctant to disclose. It does not provide a
person with a right to extract information from an unwilling
speaker.[89]
1.57 The
European Convention on Human Rights makes it clear that the freedom to receive
information and ideas is a freedom from interference by public
authority.[90] The right envisages
access to general sources of information only. It does not entitle a person to
obtain information from someone who is unwilling to impart
information.[91] The right is
therefore nothing more than a liberty to receive, without undue interference by
the public authorities, information acquired from or imparted by a willing
speaker. Freedom of speech and of the press are implicated where an injunction
is sought against publication of personal information. This freedom is
not violated if an injunction is sought against unlawful intrusion upon
privacy by the
press.[92]
1.58 Since
freedom of expression presupposes a willing speaker, the public’s
“right to know” as perceived by the press is not an integral part of
freedom of expression.[93] If there
were any “right to know” that ought to be protected by law, it is
merely the right to know information imparted by willing speakers, subject to
all the restrictions that are permissible under Article 19(3) of the
ICCPR.[94] The editorial of Tin
Tin Daily News wrote:
“In order to gather news, reporters have recklessly followed public figures day and night, and taken photographs about them surreptitiously. Such conduct has already been condemned by the community. The mass media in Hong Kong also adopts similar tactics. They set up so-called ‘puppy teams’, disturbing another, disclose the details of private life of another, and then report the facts in an exaggerated tone in an attempt to attract readers. This is unethical and despicable. ... The principle of freedom should not be used to obstruct or harm others. As Hong Kong already enjoys freedom of the press, the principle of freedom should not be undermined. Although the public has a right to know, what they need to know are matters which are of benefit to the public, and not the private and emotional affairs of another. ... Nowadays, many media organisations no longer speak for the public. They no longer administer justice by exposing the dark side of society, but only abuse the ‘public’s right to know’ and use it as a shield for their reckless news-gathering activities.”[95]
1.59 The
“right to know” does not entitle everyone to know whatever they want
to about anyone. We do not have the right to know what our friend or
relative says to his spouse in bed; nor do we have a right to know his medical
history, find out whether he has slept with a prostitute, how much assets he
has, or how much money he owes the bank. The editorial of Sunday
Telegraph observed that “[if] you do not have the right to know those
things, the press does not have the right to tell them to
you.”[96] An article in the
Hong Kong Economic Journal
says:[97]
“Broadly speaking, the public’s right to know is a democratic right under a government which subscribes to the notions of democracy and accountability. Its scope covers public affairs and public policies and planning of the Government which relate to people’s livelihood and public interest. All information which related to these matters falls within the ambit of the people’s right to know. As regards private affairs and private life which does not impinge upon the public interest, they belong to the ambit of privacy and have nothing to do with the public’s right to know. The public has no right to know information about the private life of an individual in society, whether he is a public figure or an ordinary citizen who is a nobody. Since society has no right to know the private facts about an individual, it is ludicrous to rely on the public’s right to know to justify the invasion of privacy of another.”
1.60 Hong
Kong is a free and liberal society which places a high value on human rights of
which the right to privacy is one. People who want to have access to an
individual’s personal information must justify why they need it. The
individual should not be required to justify his desire for privacy.
[12] Paragraph 3 of Article VII. In
essence, it provided that restrictions on rights and freedoms that were imposed
by legislation passed after 8 June 1991 should not contravene the ICCPR as
applied to Hong Kong.
[13]
Annex I, §XIII, first
paragraph.
[14] Secretary for
Justice v Oriental Press Group, HCMP 407/1998, at
59.
[15] SR 457 para
24.
[16] See Dominic McGoldrick,
The Human Rights Committee - Its Role in the Development of the International
Covenant on Civil and Political Rights (Oxford: Clarendon Press, 1991), at
461.
[17] M J Bossuyt, Guide
to the “Travaux Préparatoires” of the ICCPR (Martinus
Nijhoff Publishers, 1987), p
386.
[18] General Comment 10/19
of 27 July 1983, para 2.
[19] K
J Partsch, “Freedom of Conscience and Expression, and Political
Freedoms”, in L Henkin (ed), The International Bill of Rights - The
ICCPR (1981), p 210.
[20] M
Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary
(Strasbourg: N P Engel, 1993),
349.
[21] M Nowak, above,
345.
[22] A member said at a
meeting of the UN Commission on Human Rights that “There was all the
difference in the world ... between a system of censorship and a reminder to the
journalist of his duties and responsibilities and of the limitations which might
be placed upon him in the exercise of the right to freedom of expression.”
See M J Bossuyt, Guide to the “Travaux Préparatoires” of
the ICCPR (Martinus Nijhoff Publishers, 1987), pp
398-9.
[23] M Nowak, above, pp
351-2.
[24] Hertzberg v
Finland, Doc A/37/40, p 161, para
10.4.
[25] M Nowak, above, p
354. P van Dijk and G J H van Hoof express the view that the restriction
“protection of the reputation or rights of others” is relevant if
the protection of individual privacy is called for: P van Dijk and G J H van
Hoof, Theory and Practice of the European Convention on Human Rights
(Deventer-Boston: Kluwer Law & Taxation Publishers, 2nd edn, 1990),
p 423.
[26] Dudgeon v UK
(1981) 4 EHRR 149, para
47.
[27] X v Sweden, CD,
vol 7, p 18.
[28] Lingens v
Austria (1986) 8 EHRR 407,
418.
[29] Prager and
Obershlick v Austria (1995) 21 EHRR 1,
21.
[30] D J Harris, M
O’Boyle & C Warbrick, Law of the European Convention on Human
Rights (Butterworths, 1995), at
414.
[31] Prager and
Obershlick v Austria (1995) 21 EHRR 1, at
21.
[32] Above, at 19 - 20.
Although the European Court has held that it is incumbent on the press to impart
information and idea on matters of public interest, the “special
responsibility” of the press has also been used as an additional argument
for the justification of the ban on publication in Handyside v UK
(1976) 1 EHRR 737.
[33] R
v Central Television Plc [1994] Fam 192, at
203.
[34] European Convention on
Human Rights, Articles 8(2) and
10(2).
[35] J Craig & N
Nolte, “Privacy and Free Speech in Germany and Canada: Lessons for an
English Privacy Tort”, [1998] EHRLR Issue 2, p 162, at 163 –
165.
[36] Barthold v Germany
(1985) 7 EHRR 383, para
55.
[37] Barfod v Denmark
(1989) 13 EHRR 493 at
499.
[38] Markt Intern and
Beermann v Germany (1987) 11 EHRR 212 at 234 (European Commission
decision).
[39] Markt Intern
and Beermann v Germany (1989) 12 EHRR 161 at 175 (European Court
decision).
[40] Whitney v
California, 274 US 357, 375
(1927).
[41] New York Times
Co v US, 403 US 713 at 717
(1971).
[42] 16A Am Jur 2d,
Constitutional Law, §491 (footnotes
omitted).
[43] 16A Am Jur 2d,
Constitutional Law,
§491.
[44] L H Tribe,
American Constitutional Law (New York: The Foundation Press, 2nd edn,
1988), §12-2.
[45]
Associated Press v NLRB, 301 US 103, 132-133, 81 L Ed 953 (1937).
[46] Chronicle &
Gazette Publishing Co Inc, 168 ALR 879,
884.
[47] 58 Am Jur 2d,
Newspapers, §19 &
§20.
[48] 58 Am Jur 2d,
Newspapers, §26. The American Supreme Court does not accept the contention
that truthful publication may never be punished consistent with the First
Amendment: The Florida Star v BJF 491 US 524, 105 L Ed 2d 443
(1989).
[49] R Wacks, Privacy
and Press Freedom (London: Blackstone Press, 1995), pp
21-22.
[50] T I Emerson,
“The Right of Privacy and Freedom of the Press” (1979) 14
Harvard Civil Rights - Civil Libs Law Rev 329,
331.
[51] R Wacks,
“Privacy in Cyberspace : Personal Information, Free Speech, and the
Internet” in P Birks (ed), Privacy and Loyalty (Oxford: Clarendon
Press, 1997).
[52] For a general
understanding of freedom of speech, see F Schauer, Free Speech: A
Philosophical Enquiry (Cambridge University Press,
1982).
[53] E Barendt,
Freedom of Speech (Oxford: Clarendon Press, 1987) pp 11 and 190
(concluding that “the case for applying for a free speech principle to
invalidate actions for privacy is very weak, even where the disclosures are
accurate.”).
[54] E
Barendt, above, p 189. See also M B Nimmer, “The Right to Speak from
Times to Time: First Amendment Theory Applied to Libel and
Misapplied to Privacy” (1968) 56 Cal LR
935.
[55] F Schauer,
“Reflections on the Value of Truth” (1991) 41 Case Western Reserve
LR 699, 707-711.
[56] E
Paton-Simpson, “Human Interests: Privacy and Free Speech in the
Balance” (1995) 16 New Zealand Universities L R 225,
237.
[57] A F Westin, Privacy
and Freedom (New York: Atheneum, 1967) 34. See also R Gavison,
“Privacy and the Limits of Law” (1980) 89 Yale LJ 421, at 448 and
449-450.
[58] R Gavison,
“Privacy and the Limits of Law” (1980) 89 Yale LJ 421,
455.
[59] R Gavison,
“Privacy and the Limits of Law” (1980) 89 Yale LJ 421,
456.
[60] R Gavison, “Too
Early for a Requiem: Warren and Brandeis Were Right on Privacy vs. Free
Speech” (1992) 43 S Carolina L Rev 437 at
469.
[61] E Paton-Simpson,
above, p 234.
[62] T I Emerson,
The System of Freedom of Expression (New York: Random House, 1970),
6-7.
[63] Z Chafee Jr,
Government and Mass Communications (1947) at 34-35; cited in David Lange,
“The Speech and Press Clauses” (1975) 23 UCLA Law Rev 77, fn
4.
[64] E Barendt,
”Inaugural Lecture - Press and Broadcasting Freedom: Does Anyone have any
Rights to Free Speech?” [1991] Current Legal Problems 63, at
79.
[65] P Stewart, “Or of
the Press”, (1975) 26 Hastings LJ
631.
[66] E Baker, Human
Liberty and Freedom of Speech (Oxford University Press, 1989), ch 11.
[67] Castells v Spain
(1992) 14 EHRR 445 at
476.
[68] V Blasi, “The
Checking Value in First Amendment Theory”, American Bar Foundation
Research Journal (1977), No 3, p
521.
[69] Mills v Alabama,
384 US 214, 219 (1966).
[70]
Barthold v Germany (1985) 7 EHRR
383.
[71] The Court of Final
Appeal in Ng Ka Ling v Director of Immigration, FACV No 14 of 1998,
agreed at p 40 that a purposive approach is to be applied in the interpretation
of the Basic Law. As regards the interpretation of the provisions in Chapter
III of the Basic Law which guarantees the fundamental rights and freedoms of
Hong Kong residents, a generous approach will be adopted: Ng Ka Ling v
Director of Immigration, above, at 41; Chan Kam Nga v Director of
Immigration [1998] 2 HKC 16
(CA).
[72] Ng Ka Ling v
Director of Immigration, FACV No 14 of 1998, at 40 –
41.
[73] Consultative Committee
on the Basic Law of the HKSAR of PRC: Special Group on Culture, Technology,
Education and Religion, and Special Group on Inhabitants’ and Other
Persons’ Rights, Freedoms, Welfare and Duties, Final Report on Freedom
of the Press; (CCBL-SG/CES/RDI-01-PR01-870311(E)); adopted by the Executive
Committee of the Consultative Committee on 14 March
1987.
[74] Above, para
3.
[75] Above, para
5.2.1.
[76] Above, para
8.1.1.
[77] Above, para
9.
[78] Royal Commission on the
Press, Final Report, (London, Cmnd 6810, 1977), para
2.2.
[79] Report of the
Committee on Privacy (Chairman: The Rt Hon Kenneth Younger) (London: HMSO,
Cmnd 5012, 1972), para 157.
[80]
Above, para 184. In Lea v Justice of the Peace Ltd, The Times,
15 March 1974, the court held that “the press has no right to go upon
private property or into private places and intrude upon private people and into
private rights, and that the standard of conduct and manners demanded of them is
as high a standard as should be demanded of every citizen in a civilised
community.” See also Francome v Mirror Group Newspapers Ltd [1984]
1 WLR 892.
[81] T I Emerson,
above, p 396.
[82] Cohen v
Cowles Media Co, (1991) 115 L Ed 2d 586, 595-6. See 58 Am Jur 2d,
Newspapers, §20.
[83]
Dietemann v Time, 449 F2d 244 at 249 (9th Cir, 1971). See also
Galella v Onassis, 487 F2d 986 (2d Cir 1973); Houchins v KQED
(1978) 438 US 1; 69 ALR4th 1059,
1078.
[84] Time, Inc v
Hill, 385 US 374 (1967) at
420.
[85] M Nowak, above,
343.
[86] [1974] AC 273,
315.
[87] Estes v Texas,
381 US 532, 539 (1965)
[88]
Branzburg v Hayes, 408 US 665, 681
(1971).
[89] See E Barendt,
Freedom of Speech, (Oxford: Clarendon Press, 1987), chapter
III.5.
[90] Article
10.
[91] Z v Austria, 56
DR 13 (1988); 16A Am Jur 2d, Constitutional Law, §477. See P van Dijk
& G J H van Hoof, Theory and Practice of the European Convention on Human
Rights (The Netherlands: Kluwer Law and Taxation Publishers, 1990), at
417-418.
[92] T I Emerson,
above, 394, citing Galella v Onassis, 487 F 2d 986 (2d Cir 1973) as
authority.
[93] E Barendt,
above, 112.
[94] Whether the
public has a right to know Government activities is a separate issue. The main
concern of this chapter is whether the public has a right to know information
about private individuals.
[95]
Tin Tin Daily News, 1 September
1997.
[96] Sunday
Telegraph, 14 September
1997.
[97] Yip Po-keung,
“The Death of Princess Diana and Media Ethics”, Hong Kong
Economic Journal, 9 September 1997.