“Never feel that because you have unwillingly been involved in an incident of public interest that you must personally share the details and/or your feelings with the general public. If you decide that you want the public to be aware of how traumatic and unfair your victimisation was, you do not automatically give up your right to privacy. By knowing and requesting respect for your rights, you can be heard and yet not violated. ... You have the right to grieve in privacy. Grief is a highly personal experience. If you do not wish to share it publicly, you have the right to ask reporters to remove themselves during times of grief.”[114]

2.19 The Professional Practice Policy of Herald and Weekly Times Limited in Australia contains detailed provisions on grief and trauma:[115]

“8.1 All people, including public figures, should be treated with sensitivity and courtesy during times of grief and trauma.

8.2 Ordinary citizens caught up in newsworthy events are ignorant of journalistic practice and that ignorance should not be exploited.

8.3 When seeking permission to interview or photograph a victim or bereaved person, make every effort to make the initial approach through an intermediary, such as family member, friend, counsellor etc. Make a direct approach to the subject only if no intermediary is available.

8.4 If permission is refused, do not persist. (You may, however, leave a contact number or card so the person may reconsider the request at a less stressful time.)

8.5 Do not enter non-public areas of any institution charged with caring for, and counselling, victims and their families (such as hospitals, welfare institutions, funeral parlours or chapels, churches etc.) without identifying yourself to a responsible official or without the express permission of the affected people, their intermediaries or their medical/welfare/legal advisor or guardian.

8.6 A victim or bereaved person has the right to terminate an interview and/or photographic session at any time and should be made aware of this right before the interview/photographic session begins.

8.7 If a subject breaks down during an interview, offer to terminate the interview.

8.8 Conduct all interviews with the utmost sensitivity to both the distress likely to be caused by the interview itself and the possible impact on the interviewee that publication of information given in times of stress may have.

8.9 If you feel at any time that ordinary citizens may not be aware of the import of what they are saying, discuss this with them and give them the opportunity to withdraw any such remarks.

8.10 Draw your editorial supervisor’s attention to any material or image that may be particularly sensitive or to any circumstance that may have led you to omit material from your copy.

8.11 Photographs of victims or grieving people should be published only following due consideration of sensitivity and privacy.

8.12 Any restrictions placed on the use of photographs supplied by the immediate family or an intermediary should be honoured.

8.13 Distressing or gratuitous reference to the state of a victim’s body or to body parts should be avoided.

8.14 Care should be taken when republishing any material on the anniversary of a trauma or crime not to cause undue distress to victims or their families.”

2.20 The public has an interest in learning about the details of accidents and tragedies, particularly their causes and any significance they may have on society. But such an interest does not necessarily require an interview with a grief-stricken spouse or parent who is still in a state of shock. An individual’s right to privacy at times of bereavement or extreme distress should be respected. Both enquiries and publications at times of grief and shock should be carried out with sympathy and discretion for the sake of the families involved. People in distress should not be put under pressure to provide interviews. Filming or recording of those in distress should not be carried out in such a way as to increase the grief or suffering of the subject and his family. Use of materials gathered in an accident or disaster must not be used for voyeuristic or prurient purpose even though they are filmed or recorded in public places. Pictures which are likely to exacerbate grief or cause distress should be published only if permission has been granted by the individuals concerned or can be justified in the public interest.

Recording in hospitals

2.21 Where permission has been granted to film or record in organisations by the relevant management, journalists are not obliged to seek the consent of individuals whose appearance is incidental or where they are shown to be anonymous members of the general public. However, in sensitive places such as hospitals, individual consent should generally be obtained unless their identity has been concealed.

2.22 Hospitals are places where journalists may gather information for a news item. For instance, press photographers may take pictures of injured victims arriving at a hospital. Pictures of victims alighting from an ambulance, lying on a stretcher, sitting on a wheelchair, or waiting for treatment or admission at the waiting area of a hospital are fairly common in newspapers and television programmes. These pictures are mostly taken without the consent of the victims. The victims, when arriving at a hospital, are invariably injured, sick, disoriented, or even unable to move or respond. Consent could not be inferred from the fact that the victim or patient does not object to a journalist taking a photograph. In a bid to protect the interests of victims, the nursing staff sometimes use a file or their own hands to hide the faces of victims from the cameras. In one case, a hospital went to the trouble of covering the whole body of a traffic accident victim with a cloth while he was being transported on a stretcher inside the hospital.

2.23 Although all hospitals restrict public access to places where patients are treated or accommodated, the privacy of victims who have been admitted into hospitals may still be ignored by those who wish to find out more about their experience. Journalists may represent themselves as the victims’ friends and relatives in order to gain access to a ward. Apart from obtaining information about the victims and the events leading to an incident, journalists may take pictures of victims lying on bed even though the former are fully aware that the latter are sleeping, paralysed, unconscious, mentally unstable, or otherwise in no fit condition to give consent. It should be noted that even if a patient may apparently have given his consent to be photographed and interviewed, that patient might not be in a fit condition to be photographed and interviewed or to give any informed consent.[116] However, the Bylaws of the Hospital Authority merely require the consent of the patient.[117] To protect the interests of patients, consideration may be given to amending the Bylaws so that the consent of a hospital should also be required if a journalist wishes to take a picture of a patient. However, it has been argued that only a minority of patients in hospitals is unfit to give informed consent. Requiring further consent from hospital is not only unnecessary for the majority of patients, but would be open to the accusation that this would infringe the rights of a patient to have free access to the press. The medical profession and members of the public are welcome to express their views on this issue.

2.24 Media intrusion in hospitals is an extreme form of invasion of privacy. An American court held that “whatever might be the right of the press, tabloids, or newsreel companies to take and use pictures of persons in public places, certainly any right of privacy ought to protect a person from publication of a picture taken without consent while ill or in bed for treatment and recuperation.”[118] The Press and Television Codes of Ethics in Taiwan declare that journalists should respect hospital regulations and obtain the consent of the subject when gathering information in hospitals; in particular, pictures should not be taken against the wishes of the subject.

2.25 We have proposed in the Consultation Paper on Surveillance and the Interception of Communications that the use of a recording device in those parts of a hospital where patients are treated or accommodated without the consent of the lawful occupier should be guilty of an offence.[119] Unless journalists have the express consent of both the hospital and the patient concerned, they should not take photographs in those parts of a hospital in which patients are treated or accommodated. To protect the privacy and health of patients waiting to be treated or admitted into hospital, the taking of photographs in the waiting area of a hospital should generally be prohibited.

2.26 The following examples indicate that media intrusion may take place in hospitals:

a) A former artiste was surreptitiously photographed shortly after she had undergone an eye operation. The photograph was published in a magazine. She was seen lying on a hospital bed with her eyes still blindfolded.

b) A husband and wife from Hong Kong were involved in a traffic accident in Shenzhen. A newspaper reported that the four limbs of the husband were paralysed. It published a photograph showing that he was lying on a bed in a Shenzhen hospital with his eyes shut. The full names of the husband and wife were revealed in the report.

c) Six men were attacked by gangsters when leaving a discotheque in Shenzhen. A newspaper published a photograph of a victim lying facedown on a hospital bed. It reported that he had been stabbed many times on his hands and back.

d) A construction worker fell from the 29th floor onto the ground when the scaffolding supporting her collapsed. At least two newspapers published a photograph of her lying on a hospital bed with her eyes closed. One report stated that she was grieving and her eyes were wet with tears. The other reported that she was emotionally unstable.

e) Many women contracted a virus after undergoing a surgical operation in a Shenzhen hospital which specialised in gynaecology and paediatrics. A newspaper published a photograph of a Shenzhen woman lying on a hospital bed. She was reported as having given birth to a child by caesarean section. The photograph showed that her abdomen was not covered by any clothing. Her bed trousers were loosely worn and her private parts were covered by a white cloth. Her full name was given in the report and her face was not obscured. In contrast, the same newspaper showed more restraint in respect of a Shenzhen woman whose husband was a Hong Kong resident. That woman was seen sitting inside a ward. Her name was not given and her eyes were obscured in the photograph to protect her identity.

f) A woman was injured in an accident. A journalist took a photograph of her sitting on a wheelchair inside the waiting area of a hospital, waiting to be admitted to the hospital for treatment. On a separate occasion, a newspaper published a photograph of an old lady sitting on a wheelchair in the waiting area of a hospital. It shows that the lady was resting on her arm with her eyes closed. That photograph was used to illustrate a story that a hospital was crowded with patients because many people had caught cold.

g) The wife of a Hong Kong businessman suffered severe injuries in a fire that occurred in a Shenzhen hotel and remained in a coma thereafter. Her husband lodged a claim against the hotel. A photograph of her lying unconscious on a hospital bed was published in a newspaper.

h) A middle-aged man was rescued by firemen when he attempted to commit suicide by setting his flat on fire. He was found to be emotionally unstable when sent to hospital. A newspaper reported that he escaped from the hospital after he had been admitted for observation, and that it was suspected that he ran away from the hospital in an attempt to avoid the pursuit of journalists. The newspaper also published a photograph showing him being brought back to the hospital by the police. No attempt was made to obscure his face.

i) In order to illustrate that smoking by patients is common in hospitals, a newspaper published a 20 cm x 15 cm photograph of the side-view of a hospital patient. It shows that the patient was in a hospital uniform smoking a cigarette. One of his nostrils had a plastic tube stuck in it. He was not facing the camera. His face was not obscured. The caption disclosed his age and surname and reported that part of his liver was removed because of liver cancer, leaving a 14-inch scar which was easily recognisable, and had to be hospitalised again because he was later found to have brain cancer.

2.27 The question is whether the hospitals and individuals in the above cases had given their consent to the journalists taking those photographs and the newspapers publishing the same. The cases show that there is evidence that the privacy of Shenzhen citizens has been intruded upon by the Hong Kong press. We consider that Hong Kong journalists should observe the same professional standards even though they are gathering information in other jurisdictions for use in Hong Kong. The privacy of individuals residing or staying in Shenzhen deserves the same level of respect from the news media in Hong Kong.

Surviving victims and relatives

2.28 At a conference about reforming the news media in Hong Kong, a senior executive of a television company said that there was a total lack of compassion for victims and survivors in local journalism:

“There’s no respect for death and other tragedies – no respect for the victims and worse yet, certainly no respect for the survivors either. Photographers literally stick their lenses under the noses of those leaving the morgue after having just identified the bodies of their loved ones; so-called reporters chase after them to ask the inane question of how they feel about their loss; etc.”[120]

2.29 Surviving victims and relatives may provide important information to journalists for understanding the background of an event or for explaining a social or economic issue to the public. However, we consider that journalists should be sensitive to their feelings when determining whether to publicise the private lives of the victims and their friends and relatives. The media should treat the surviving friends and relatives with respect and not merely as a means to journalistic or commercial ends. They should not identity a victim’s friends and relatives unless this can be justified in the public interest.

2.30 We are also of the opinion that journalists should exercise care when determining whether to publish (or re-publish) a photograph showing the dead body of a victim or a family photograph of the deceased taken during his lifetime. They should always bear in mind the effects which such photographs may have on the private life of the surviving relatives, particularly the offspring of the victim who are still children. In R v Broadcasting Complaints Commission, ex parte Granada Television Ltd,[121] the death of Helen Sandford in 1987 was reported in a local newspaper and discussed in a medical journal. Three years later, Granada broadcast “The Allergy Business” which showed photographs of three people including a photograph of Helen with the word “dead” superimposed. Helen’s parents were not forewarned that the programme would include material relating to Helen and saw it at home by chance. The Broadcasting Complaints Commission ruled that the transmission without forewarning the parents was an unwarranted infringement of their privacy. The Court of Appeal held that the fact that a matter had once been in the public domain could not prevent its resurrection, possibly many years later, from being an infringement of privacy. It referred to Article 8 of the European Convention on Human Rights and further expressed the view that it would be an unacceptably narrow interpretation of the meaning of privacy and contrary to common sense to confine privacy to matters concerning the individual complainant and not as extending it to his family.[122]

2.31 Journalists should ask themselves how they would feel if it was they who were subjected to scrutiny by the media, and it was their own private misfortune that was exposed in the public eye. The Taipei Journalists’ Association declares that “Unless [a journalist is] in good conscience, [he should] never put [his] pen to paper.”[123] As suggested by the Poynter Institute for Media Studies in the US, journalists should ask the following questions to ensure that their decisions are ethically justified:[124]

• “Who are the stakeholders - those affected by my decision? What are their motivations? Which are legitimate?
• What if the roles were reversed? How would I feel if I were in the shoes of one of the stakeholders?
• What are the possible consequences of my actions? Short term? Long term?
• What are my alternatives to maximize my truthtelling responsibility and minimize harm?
• Can I clearly and fully justify my thinking and my decision? To my colleagues? To the stakeholders? To the public?”

2.32 The following examples show how the private lives of surviving victims and relatives may be intruded upon by the news media:

a) A man suffered a heart attack when staying with a prostitute and died after receiving treatment in hospital. His full name and age and a photograph of him taken during his lifetime were published in a newspaper.[125]

b) A husband committed suicide by hanging himself in his flat. A newspaper not only published his full name and age and a photograph of him taken during his life time, but also the age, surname and the second character of the first name of his wife. The story was accompanied with a photograph showing the living room of the flat. The wife was seen checking the items in a drawer. A relative who had come to look after her was also included in the photograph. The wife was reported to be suffering from mental illness. Another newspaper published a photograph of her husband lying on a stretcher when he was carried into an ambulance. Two weeks later, the same newspaper reported that a sum of $5,000 had been transferred from its emergency relief fund to assist the wife. The headline of the story read: “Four-year-old Girl and Mentally Ill Mother Lost Support”. The paper re-published the photograph of the deceased husband lying on a stretcher.

c) A man died in a traffic accident. A newspaper published his wedding photograph in which the man and his wife were seen toasting each other. The face of his wife was not obscured in the photograph.

d) A university student died in a traffic accident. A year later, a journalist called on the student’s parents. A photograph of the mother was taken at the doorstep, probably by means of a hidden camera. The newspaper disclosed that the mother had heart problems and burst into tears every time she was reminded of her son. The father had lodged a civil claim against the driver. It further reported that both the mother and the father had wept during the interview.

e) One of the beneficiaries under a will of a former celebrity revealed in a radio programme in Canada how the estate of the celebrity would be distributed. A magazine in Hong Kong publicised those details, including who the beneficiaries were and how much each would receive under the will. The magazine further remarked that the spouse of the deceased, now living in Hong Kong, was not entitled to a share in the estate.

f) A man hanged himself in a bid to persuade his estranged parents to come together. A newspaper published the letters purportedly containing the last wishes of the deceased. One of them was addressed to his sister. In the letter, he was alleged to have asked his brother not to choose politics as his career. The full name and age of his brother were revealed in the report. A photograph showing the brother making a telephone call outside the mortuary was also published.

g) A front-page story of a magazine revealed that a deceased insurance agent had slept with many men in order to get more business. The press had reported that the agent had a family.

2.33 We note that a few newspapers do not refrain from publishing photographs that depict dead bodies under sheets, in bags, or lying on the floor. A few years ago, a magazine was widely criticised for publishing a photograph of the dead body of a 10-year-old boy killed by a blackmailer. In another three cases, involving respectively a singer, an accountant and a gang leader, the journalists went so far as to take photographs of the corpse inside a mortuary or coffin. Despite the harm that might be done to surviving family members, the editors had given their permission for such photographs to be published in the press. In a study carried out by the Caritas Community Centre in Kowloon, 89% of the parents interviewed considered that it was improper to publish a picture of an uncovered dead body. 92% of the parents also thought that it was improper to publish an enlarged picture of a dead person whose underwear was exposed to public view.[126] The intent of the law of privacy is to protect living individuals from undue interference with their private life. There is, strictly speaking, no privacy issue if the private facts of a dead person are publicised - unless such publicity has unduly interfered with the private life of a living individual.[127] However, the right to die with dignity is generally regarded as an article of faith in society. Even if the tragedy involves a public figure or occurs in public view, journalists should nonetheless report it with a sense of compassion. We note that the Calcutt Committee on privacy proposed that newspapers should apply the same principles of accuracy and respect for privacy to stories about the recently dead as to stories about the living.[128]

Funerals

2.34 Journalists may cover a funeral if the funeral is attended by public figures or the deceased was the subject of a newsworthy event. We think that when reporting a funeral, journalists should avoid engaging in intrusive conduct such as taking close shots of people who are grieving. In the funeral of Leonard Ho, co-founder of the Golden Harvest movie studio, film star Jackie Chan was reported to have lost his temper when the press photographers rushed up to the hearse trying to take pictures.

2.35 Taking pictures of the inside of a funeral hall is intrusive if it is done against the express wishes of surviving relatives. In one case, five women were found dead in a flat in Kowloon. Prior to the funeral service of one of the deceased, the relatives put up a notice at the door of the funeral hall, advising that journalists were prohibited from taking pictures of events inside the hall and of relatives attending the service. A newspaper reported that when the friends of the deceased realised that some journalists had ignored the notice and had taken pictures, they kept the door to the hall shut. This report was accompanied with a photograph of the inside of the hall, presumably taken before the friends of the deceased shut the journalists out. A few persons can be seen sitting next to the flowers sent in by the friends and relatives of the deceased. One could reasonably expect that the publication of this photograph, if not the taking thereof, was against the wishes of the surviving friends and relatives.

2.36 The following provisions from the BBC Producer’s Guidelines illustrate how a news organisation should behave if it seeks to cover funerals:[129]

“Normally, programmes should cover funerals only with the permission of the family. Good reasons are needed if the wishes of the family are to be ignored. We should ensure that funerals are covered sensitively, and should avoid intrusive conduct, such as close camera shots of people who are grieving.”

Identity of parties and witnesses in court proceedings

2.37 Article 14(1) of the ICCPR provides that a party to criminal or civil proceedings is entitled to “a fair and public hearing by a competent, independent and impartial tribunal established by law”. Since not all members of the public can or have the time to attend hearings, journalists sitting in the press bench of a courtroom have been described as “the eyes and ears of the public”. Robertson and Nicol explain that press reporting of court cases has many important virtues:[130]

a) Publicity is the very soul of justice. It is a safeguard against judicial error or misbehaviour.
b) It deters perjury, in that witnesses are likely to tell the truth if they know that any lie they tell might be reported, and provoke others to come forward to discredit them.
c) It enhances public knowledge and appreciation of the workings of the law.
d) It assists the deterrent function of criminal trials.
e) It permits the revelation of matters of genuine public interest.

2.38 Compared to the United Kingdom and the United States, the standard of legal journalism in Hong Kong is generally not high. Press reports of court proceedings are at times sensational. Although the identity of parties and witnesses in court proceedings and the particulars stated in court documents or disclosed during a hearing are matters in the public domain,[131] giving publicity to the alleged facts of a claim or the evidence given in court may affect the private life of the relevant party or his friends and relatives if the full names of the parties are also revealed in the news report. Where an individual is suing for damages in a personal injury action, the facts revealed in the proceedings may relate to sensitive data about his or her family life, sex life, financial status, and mental and physical condition, including his or her reproductive ability. Likewise, the private details of victims of crime which are revealed in criminal proceedings may also be published in the press. These facts may be highly sensitive if the victims are identifiable. Furthermore, the physical safety of victims of crime would be endangered if their names and addresses become known to their assailants through the press. Publicising their identities would also discourage victims from reporting offences for fear of exposure.

2.39 The US Supreme Court noted that:

“The details of many, if not most, courtroom battles would add almost nothing toward advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times ... And while participants in some litigation may be legitimate ‘public figures,’ either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others.”[132]

2.40 Article 14(1) of the International Covenant on Civil and Political Rights provides that the press and the public may be excluded from a trial for reasons of “morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires”.[133] It is interesting to note that although all other limitation clauses of the Covenant include “public morals”, the word “public” was omitted in Article 14. This may mean that grounds more related to private than to public morals are acceptable for excluding the press and the public from a trial, as when intimate details of private life are at issue.[134] It appears that the public, including the press, can be excluded for reasons of “morals” in, for example, a hearing concerning a sexual offence. The “interest of the private lives of the parties” is at stake if the proceedings involve family matters, sexual offences or other cases in which publicity might violate the private and familial sphere of the parties.[135]

2.41 The press is generally free to report on the private lives of the parties so long as these facts are revealed in open court. However, it does not mean that restraint need not be exercised when reporting private facts in circumstances where no public interest is involved. Ten years ago, a university student who had been charged with and eventually convicted of shop-lifting jumped to her death after her name and other personal particulars had been publicised by the press. Although the News Executives’ Association insisted that the press had not breached any law and was free to report a public trial, the Hong Kong Journalists Association considered that the front-page treatment of the theft case in a newspaper was out of all proportion to the seriousness of the offence. It doubted whether there was any news value in publishing the full identity of a person convicted of a minor offence. In another case, a victim of a serious traffic accident sued the driver for damages. The victim was paralysed and became impotent as a result of the accident. Seagroatt J was reported as asking the press to be humane and sensitive to the feelings of victims when reporting court proceedings. He believed that the press was more likely to avoid taking a picture of the victim the more it learned about his trauma.[136]

2.42 Recently, in a case in which the defendant was tried for procurement of unlawful sex by false representations, the judge made an order prohibiting the media from disclosing the identity of the victim. During the hearing, evidence that the victim was asked to perform anal and oral sex with the defendant was adduced. Notwithstanding the prohibition order, several journalists took pictures while she was leaving the court. The victim was reported to be frightened when the cameras were pointing at her. She sought to protect her identity with her umbrella but a newspaper reported that she failed in her attempt because there was no way she could fend herself from the intrusive cameras on her own. The news organisations concerned could not be prosecuted for contempt of court unless they publish or broadcast the pictures thereby revealing her identity.

2.43 The draft Covenant on Journalistic Ethics of the Taiwan Journalists’ Association states the general principle that “Unless public interest is involved, journalists should respect the right of privacy of the subjects. Even if a public interest is involved, journalists should still avoid intruding upon the misfortune of the subjects.”[137] We think that the press should endeavour to apply the same principle to the reporting of court proceedings. In particular, it should be humane and sensitive to the feelings of victims of crime, and should avoid reporting sensational stories about the injuries sustained by an identifiable victim who has given evidence in criminal proceedings.

2.44 The following cases are instances where the private details of a victim giving evidence in criminal proceedings had been reported by the press:

a) Two defendants were charged with false imprisonment and criminal intimidation. The full name and age of the victim were disclosed in at least two newspapers. Both papers reported that he was then a uniformed policeman of a specified police station and that he had lost $300,000 by gambling in Macau. One newspaper even published a photograph of the victim stepping out of court.

b) A newspaper published the full name, age and photograph of a victim who had given evidence against a defendant charged with criminal intimidation. It reported that the defendant admitted that he had had an affair with the wife of the victim.

c) In reporting a criminal case, a newspaper disclosed that a defendant cut open the upper part of the victim’s trousers and poured inflammable liquid on his genitals. The defendant then set fire to the victim. Part of the headline read: “Set fire to burn the victim’s genitals in a bid to get loan agreement signed”. The full name and age of the victim were disclosed in the report. It also included a photograph of the victim running near the High Court (presumably to escape from the pursuit of journalists) using his hands to hide his face (presumably to prevent his face from being photographed by journalists).

d) A defendant was found guilty of assaulting a man who had refused to pay for the service provided by a prostitute. The full name, age and occupation of the victim were published in a newspaper.

Past criminal records

2.45 The press occasionally discloses that an individual was convicted of a criminal offence in the past. In our Consultation Paper on Civil Liability for Invasion of Privacy, we comment that criminal convictions are public records the publication of which should not be restrained on the ground that it is a breach of privacy. However, we also note that some commentators have argued that persons who have been convicted of minor offences should have a right to have their criminal records forgotten. They contend that public knowledge and increased awareness of a particular crime may be gained by discussing past records without revealing the identities of the offenders. Divulging such records would shatter the newly found respectability of former offenders and may ruin their future and cause their friends and relatives to shun them. We agree that the general public has an interest in rehabilitating criminals and returning them as productive and law-abiding citizens to society. The Court of Appeal in California held that:

“one of the major objectives of society ... and of the administration of our penal system, is the rehabilitation of the fallen and the reformation of the criminal. ... Where a person has ... rehabilitated himself, we, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime.”[138]

2.46 In the United States, a matter that was once of public record may be protected as a private fact if the information is not newsworthy. The following comment made by the American Restatement of the Law of Torts explains that a lapse of time is one of the factors to be considered in determining whether to publicise the past criminal record of an individual:

“The fact that there has been a lapse of time, even of considerable length, since the event that has made the plaintiff a public figure, does not of itself defeat the authority to give him publicity or to renew publicity when it has formerly been given. Past events and activities may still be of legitimate interest to the public, and a narrative reviving recollection of what has happened even many years ago may be both interesting and valuable for purposes of information and education. Such a lapse of time is, however, a factor to be considered, with other facts, in determining whether the publicity goes to unreasonable lengths in revealing facts about one who has resumed the private, lawful and unexciting life led by the great bulk of the community. This may be true, for example, when there is a disclosure of the present name and identity of a reformed criminal and his new life is utterly ruined by revelation of a past that he has put behind him.”[139]

2.47 We believe that in striking the balance between the public’s right to know the past criminal record of an individual and the interest of an individual in avoiding reference to the fact that he had been convicted of a crime, the press should take the following factors into account:

Juveniles in court proceedings

2.48 The publication of identities of juvenile offenders impedes rehabilitation by exposing them to the glare of publicity. Further, it is arguable that juveniles are entitled to learn from mistakes. They should not be stigmatised as criminal for life by their friends and relatives. On the other hand, the recent increase in juvenile crime is a growing public concern. Teenagers are more mature and sophisticated than they used to be. Where a juvenile offender knowingly committed a serious offence with full knowledge that it is wrong to do so, there is no compelling reason to shield him from media spotlight. Nevertheless, the public’s need to apprise of the problems arising from juvenile delinquency may be satisfied without prejudicing the privacy interests of juvenile offenders. Generally, the interest of a juvenile offender in rehabilitation is paramount unless he poses a serious threat to the safety of others.

2.49 Taiwan’s News Council considers that the interest in the protection of juveniles is sufficiently important to pass a resolution specifically on the reporting of court proceedings involving juveniles:[140]

“Youth are malleable. Even if they occasionally contravene the law, they should still be sympathised and forgiven, hoping that they would change for the better, change their quality, and eventually become good persons. ... In reporting events involving juveniles, journalists should obviously not publicise the juvenile’s name so as to protect him from affronts to his dignity or from prejudices against his rehabilitation. Even if that juvenile has been committed to trial or has already been convicted and sentenced, his name or photographs should not be published prior to the announcement of the Court. As for other data such as his occupation, origin or residential address, their publication should also be avoided if they would enable others to identify him. It goes without saying that the press should not publish the name of his parents and relatives. These persons are not the subjects of the incident. The purpose of this resolution is to promote journalistic ethics.”

2.50 Under the Juvenile Offenders Ordinance (Cap 226) in Hong Kong, children and young persons under the age of 16 who are concerned in the proceedings of a Juvenile Court[141] are protected from identification by the press.[142] However, those who are tried in a court other than a Juvenile Court are not protected. Their identities may be disclosed by the press.

2.51 Taiwan’s Press Code provides that journalists should “not publicise the name, address and other related information which might lead to the identification of a minor who is suspected of committing an offence or who has already been convicted of an offence.” It further provides that photographs of minors involved in an offence should also be banned.[143] In a report commissioned by Taiwan’s News Council, three academics considered that the practice of excluding the second Chinese character of an accused could not truly protect juvenile criminals. They recommended that their names should be excluded altogether.[144]

2.52 The Calcutt Committee in the UK proposed that “The press should not, even where the law does not prohibit it, identify children under the age of 16 who are involved in cases concerning sexual offences, whether as victims, or as witnesses or defendants.”[145] The Code of Practice ratified by the Press Complaints Commission follows closely the Committee’s proposal, except that defendants under the age of 16 are excluded from protection. In contrast, the Code on Fairness and Privacy adopted by the UK Broadcasting Standards Commission provides that “children under 16 involved in police enquiries or court proceedings relating to sexual offences should not be identified or identifiable in news or other programme.”[146]

2.53 The following are instances where juveniles concerned in criminal proceedings were identified in newspapers in Hong Kong:

a) In a criminal case tried in a magistrate’s court, seven young persons, all below the age of 18, were charged with false imprisonment and indecent assault. A newspaper disclosed the full names of six defendants, one of whom was only 14 years old. It further reported that the remaining defendants were aged 16 or 17.

b) A girl had sex with a man when she was only 15 years old. A month later, she extorted $60,000 from the man by claiming that she was pregnant. She was 16 years old when she was tried for blackmail. Her full name was disclosed in the report.

c) Four out of five defendants in a criminal case were charged with rape, indecent assault and false imprisonment. A newspaper reported that they aged 15 to 17 years. It gave the full names of all the defendants. Another newspaper suppressed the identity of the 15-year-old defendant by publishing his surname only. At least four of the five defendants were acquitted on all charges.

d) A 15-year-old boy was charged with drug trafficking. A newspaper published his full name when reporting that he admitted his guilt in court.

e) Two newspapers reported that seven boys and girls below the age of 8 in a small village in the New Territories were indecently assaulted by a paedophile. Although both reports did not disclose the names of the children, the name of the village was given in one newspaper. Since the village is a small one, all children below the age of 8 in that village were implicated.

2.54 We believe that in order to protect the future of young persons, the news media should exercise care when reporting juvenile crime and court proceedings involving juveniles. We have considered whether it is appropriate for Hong Kong to follow the Calcutt Committee’s proposal and, if so, whether such a policy should be extended to other offences. In the course of our deliberations, we note that it might be in the public interest to disclose the identity of minors who are charged with heinous crimes such as murder or manslaughter. Even if the offence is not heinous, it may nevertheless be regarded as serious. This might be the case if a minor is charged with rape or inflicting grievous bodily harm.

2.55 Whether to publish the identity of a juvenile offender will ultimately depend on the age of the juvenile and the nature of the crime. There are various options available, such as lowering the age limit from 16 as proposed by the Calcutt Committee to, say, 15 or 14, below which the identity of a child charged with an offence ought not be disclosed even though it is not unlawful to do so; restricting the protection to children charged with “minor offences”; extending the protection proposed by the Calcutt Committee to children charged with any offences other than those carrying seven years’ imprisonment (or life imprisonment); keeping the identity of a child charged with any offence anonymous unless and until he has been convicted of a “serious offence” (or offence carrying life imprisonment); or simply leaving the matter to the good sense of editors.

2.56 Our preliminary view is that the protection under the Juvenile Offenders Ordinance should be extended to children under the age of 16 who are concerned in proceedings other than those of a Juvenile Court. However, since the need to protect the identity of child offenders involves issues other than privacy matters, it would not be appropriate for us to come to a definite view prior to consulting the public on this matter. We therefore invite members of the public to submit their views as to whether the identity of children involved in criminal proceedings (whether as defendants, victims or witnesses) ought to be protected from publication; and if so, how the line should be drawn.

Media scrums

2.57 In order to discharge their duties effectively, journalists may have to be persistent in questioning or pursuing persons who feature in a news event. However, although it may be legitimate for journalists to go to the subject’s office or home to try to secure pictures or interviews, the combined effect of news-gathering at a particular place by a large number of journalists from various news organisations may be intimidating to the person in its centre. In an attempt to address the problem of “media scrums”, the BBC has issued the following guidelines for its producers:[147]

“We must not harass people unfairly with repeated telephone calls, or repeated knocks at the door, or by obstructing them as they come and go (this could amount to a criminal offence of aggravated trespass if it takes place on private property). It may be possible or appropriate for pooling arrangements to be reached, or for the BBC to withdraw altogether if it is clear that the subject does not intend to appear. BBC teams on the spot who are asked by the subject to leave should refer to editors for guidance. The appropriate decision will depend upon the precise circumstances, but considerations to bear in mind are :

• is the subject a private citizen or a public figure?
• is the subject victim, villain, or merely interested party?
• has the subject expressed a clear intention or wish not to appear or give interviews?

There will be cases when the BBC judges it proper to withdraw and when we therefore miss material which other organisations gather and publish.”

Harassment and following

2.58 The following is a vivid account given by a reporter of how journalists may harass an individual in order to secure an interview in a hospital:[148]

“although [artiste Law Kar-leung] was hospitalised [for acute hepatitis (type A)], the journalists still repeatedly telephoning him and ‘overwhelmed’ the pager of his record company’s manageress ... with a huge number of messages. Even more outrageous was that the journalists went to the hospital and kept on pushing the door vigorously as a result of which Law could not sleep. In the end, he had to gather all journalists and answer their enquiries on one special occasion so that he might truly take a rest. He therefore had to give the press a briefing [on a hospital bed] last Saturday even though he was still in hospital, only because he was ‘forced’ to do so by the journalists.”

2.59 Hong Kong journalists are renowned for their persistence in gathering information. Indeed as many as 62% of journalists in Hong Kong regarded it as proper “to badger unwilling informants to get a story”. Only 15% regarded such practices as improper.[149] In the Consultation Paper on Stalking, we recommend that it be a crime and a tort for a person to pursue, without lawful authority, a course of conduct which amounts to harassment of another, unless the pursuit is reasonable in the circumstances. We suggest in the Stalking Paper that it is unnecessary to include a definition of harassment in the legislation because the concept is well understood by the courts. However, some guidelines as to what conduct would amount to harassment would be helpful to journalists and the public. For example, the Code of Practice of the UK Press Complaints Commission provides that the following requirements on harassment should be complied with unless the conduct of the newspaper or magazine can be demonstrated to be in the public interest:[150]

“(i) Journalists and photographers must neither obtain nor seek to obtain information or pictures through intimidation, harassment or persistent pursuit.

(ii) They must not photograph individuals in private places ... without their consent; must not persist in telephoning, questioning, pursuing or photographing individuals after having been asked to desist; must not remain on their property after having been asked to leave and must not follow them.”

2.60 Journalists may seek to obtain information by overt or covert means. They may keep watch outside the home of, or places frequented by, a public figure, particularly if he is involved in marital failure or extra-marital affairs. They may follow him on motorcycles or block his way by cars, or even risk a traffic accident or confrontation to take a photograph. A few artistes and celebrities have been reported to have driven recklessly to escape from a pursuit.

2.61 It is important to note that even if our proposals on stalking were implemented, a subject receives no protection if he is not aware that he has been followed or watched by a journalist. A survey carried out by Apple Daily found that 88% of the 340 respondents believed that it was an invasion of privacy for reporters to trail public figures.[151] In an opinion poll conducted by the Social Sciences Research Centre of the University of Hong Kong on the “tracking methods” used by the news media in news coverage,[152] 47% of the respondents did not approve of the tracking method used by the mass media in reporting news. Only 24% had no objection to the media using such methods. Fifty two percent of the respondents also thought that the media should not use the exclusive information obtained from tracking celebrities or public figures as a means of increasing their circulation or audience ratings, compared with 28% who approved such use.

2.62 In our opinion, journalists should not follow individuals, whether or not they are public figures, unless it can be justified in the public interest. In particular, in the absence of any public interest, journalists should not persist in pursuing or photographing individuals after they have been asked to desist. Of course, the conduct of journalists must also be within the law.

2.63 The following are instances where journalists watched or followed their subjects:

a) A singer was reported to have been involved in a traffic accident when avoiding the pursuit of reporters who were chasing after him in a vehicle.

b) An ex-schoolmate of a pop star was trailed by a journalist for a few days in order to confirm the rumour that the pop star no longer treated him as her boyfriend.

c) A judge of the Court of Appeal was followed and his home besieged by journalists of Oriental Daily News for three days in order to “teach him what the term paparazzi meant”. The High Court in Secretary for Justice v Oriental Press Group held that “the motive and real purpose behind this operation was to take revenge for the court’s decisions against the Oriental Press Group and to mete out a punishment to the judge for his judgments against the Group.”[153]

d) A magazine reported that its journalists had been following a Miss Hong Kong for a few days when she was studying in a Hong Kong university. The journalists took secret photographs of her while she was attending a seminar in a lecture theatre. A photograph of her boyfriend waiting outside the university was also published.

e) The journalists of a magazine followed a performer, her boyfriend and an actor who was rumoured to be her new boyfriend, for seven days in order to find out more about her love affair. The magazine reported that the performer had been very much on her own; her boyfriend had gone out with a middle-aged woman; and the actor had had a date with his colleague whose name was publicised in the report.

f) A journalist surreptitiously followed a woman and her child for at least one day. The husband of the woman was the son of a public figure. The couple was involved in custody proceedings at that time.

Doorstepping

2.64 In order to seek and report the truth, journalists may confront individuals for an interview, without prior arrangement, either in public, on private property or at the doorstep of private premises. Such tactics, commonly known as “ambush interviews” or “doorstepping”, are likely to be employed if a journalist seeks to obtain information from someone who does not wish to be interviewed or photographed, or to obtain some footage of the inside of the private property to which access is likely to be denied. These interviews are objectionable on the following grounds:[154]

“First, when the ambush is captured on tape for broadcast, the element of surprise often results in an appearance of guilt on the part of the source. Particularly when the interviewee is inexperienced in dealing with the media, the attempts to fend off the unexpected interrogations of the determined, aggressive reporter can project a visual image of uncertainty and guilt.

Second, ambush interviews can violate the basic journalistic standards of balance and fairness. Anyone who becomes the subject of a media inquiry, which includes even sources suspected of illegal activity, has the right either to reject an interview altogether or at least provide a reasoned response to the reporter’s questions.”

2.65 In light of the above, it may be thought that such tactics should be used only if the subject fails or is unlikely to respond to a request for an interview and there is prima facie evidence of crime or serious anti-social behaviour.[155]

2.66 There are two cases which are worth mentioning:

a) In one case, a man stabbed his daughter-in-law to death after they had had a dispute. The man then killed himself. One or more journalists called on the deceased’s son at eleven o’clock in the evening. No one inside answered the door. The journalists called the police for assistance, justifying their action on the ground that the son might have done something silly to himself. The police broke open the door and discovered that the son had merely been meditating on his own. The efforts of the journalists were rewarded when the journalists secured an interview with the son. One newspaper published a photograph of the son sitting inside his flat with a plain-clothes policeman searching his wallet. The full name and age of the son were also published.

b) In a criminal case in which the defendant was charged with assault occasioning actual bodily harm, a press photographer alleged that he was assaulted by the defendant while the latter was escorting a Mr Ma outside the High Court. The defendant was one of the eight persons who had been escorting Mr Ma from the High Court after Mr Ma’s appearance in a contempt case. The magistrate found that the press photographer grabbed the defendant’s jacket and pulled him during a scuffle. The photographer “intended to inject himself into the cordon surrounding [Mr Ma]. It was a forceful and persistent attempt.”[156] The magistrate held that “photographers have a clear right to photograph persons after they have left the court building but do not have the right to prevent the lawful progress of those walking in a public place.” He further held that the dissemination of newsworthy material was in the public interest but photographers should act in a “moderate, non-confrontational manner”.[157]

Gathering information by clandestine methods

2.67 One of the primary goals of journalism is to seek and report the truth. However, people often conceal information of public importance that could prove embarrassing or damaging to them if made known to the public. In such circumstances, journalists are tempted to find out the truth by relying on clandestine methods. Concealed cameras or hidden tape recorders may therefore be used by journalists in private premises or public places without the subjects’ consent; and telephone conversations may be recorded without the other party’s knowledge. Without these methods, investigative journalism might sometimes be impossible, and evidence of crime, anti-social behaviour or inefficiency of officials might never be uncovered and exposed. However, journalists must guard against infringing a person’s right of privacy without reasonable grounds. Apart from ensuring that news-gathering activities are lawful in the criminal and civil sense, journalists must observe the principle that the degree of intrusion resulting from the use of clandestine methods is proportionate to the seriousness of the subject matter under investigation. The mere fact that a subject is of interest to the public does not justify journalists using undercover methods to gather information.

2.68 The Ethics Committee of the Hong Kong Journalists Association notes that some complaints lodged by members of the public involved the obtaining of news material by means which were not “straight forward”:[158]

“Sometimes photographs were taken with a hidden camera or videotaping was done without prior consent. Complainants were also unhappy about the use of ‘undercover’ reporting techniques by journalists when the journalists approached their targets. Sometimes reporters made agreements to keep certain information confidential and then broke the agreement.”

2.69 The Ethics Committee points out that over-riding public interest considerations were not involved in some of these cases. They state that the “sharp increase” in ethics complaints involving the use of means which are not straight forward is “a worrying trend”. They believe that media organisations have a duty to ensure that the material they use is obtained in a conventional manner by their staff.[159]

2.70 The question of how press freedom may be reconciled with the right of privacy in each of the following circumstances will be examined in detail in the following paragraphs:

a) surreptitious recording in public places;
b) extra-territorial surveillance;
c) use of deceptive means to gather information;
d) surreptitious recording in private premises;
e) recording of oral or telephone conversations with the consent of one party; and
f) interception of telephone conversations.

Surreptitious recording in public places

2.71 Individuals in public places do not have the same degree of privacy as in their own homes or offices. They can be observed by others and their private conversations may be overheard by anyone who is lawfully present nearby. Insofar as the individuals concerned are not in a state of solitude or seclusion, and their presence in the public place is not a matter of private concern, the recording of their conversations or their activities, whether done openly or surreptitiously, is generally not covered by the intrusion tort proposed in our Consultation Paper on Civil Liability for Invasion of Privacy. But surreptitious recording can be unfair to those recorded and may infringe their privacy. It may constitute an unfair means of collection of personal data, and therefore unlawful under the Personal Data (Privacy) Ordinance.

2.72 Under our proposals in the Civil Liability Paper, a defendant in an action for invasion of privacy based on public disclosure of private facts would have a defence if the private facts publicised were in the public domain. But accurate reporting of such events may cause unnecessary distress and anxiety to the subject. The mere fact that the personal information is in the public domain is not in itself sufficient to justify the news media reporting it. There are certain categories of “public places” where individuals might have a legitimate expectation of privacy. When an individual is staying inside a church, a clinic, a community centre, a public washroom, or even a restaurant, he might rightly expect to be free from media attention.

2.73 Some sections of the media have exploited this grey area and have taken secret photographs of well-known figures while they were in public places. Some prominent businessmen, professionals and showbusiness personnel were surreptitiously photographed while they were entering or leaving a restaurant, night-club or hotel. On a few occasions, the male subject was photographed walking on the street in the company of a young lady. If the subject is married, giving publicity to such facts is likely to cause family disputes or even marital breakdown, with all the adverse consequences which a separation or divorce would have on the children of the couple, but perhaps with no corresponding public interest involved.[160]

2.74 The use of a hidden device to obtain personal information with a view to its publication or broadcasting is objectionable even though the subject is in a public place. We agree with the Independent Television Commission in the UK that “The use of hidden microphones and cameras to record individuals who are unaware that they are being recorded is acceptable only when it is clear that the material so acquired is essential to establish the credibility and authority of a story, and where the story itself is equally clearly of important public interest.”[161]

Extra-territorial surveillance

2.75 Journalists may record activities inside private premises by using a technical device outside the premises without the consent of the occupier or the subject. In one case, journalists from a magazine used a long-lens camera to take photographs of the inside of a flat owned by the boyfriend of an artiste on Lantau Island. Some of the photographs were published in the magazine. The artiste was seen quarrelling with her boyfriend in the living room. On another occasion, the journalists from the same magazine took a photograph of the artiste packing her belongings inside her room in Sai Kung. Apparently, the room was visible to passers-by. The artiste drew the curtain as soon as she discovered that she was under surveillance. The photograph was published by the magazine in the same article. In another case, journalists from a magazine kept watch outside the building of an artiste from the evening to the next morning. They monitored the activities inside her flat and took photographs of her working inside her reading room. Two of these photographs were published in the magazine.

Use of deceptive means to gather information

2.76 Journalists may obtain personal information or pictures through misrepresentation or subterfuge. They may falsify or misrepresent their identities, and pose as customers, patients, employees, officials or visitors in order to speak to the subject over the telephone or gain access to private premises, thereby enabling them to obtain first-hand information which would otherwise be denied to them. Pictures may also be taken by hidden cameras carried with them without the consent of the subjects.

2.77 A woman who used to be a journalist with a reputable newspaper in Hong Kong said that she found it difficult to accept some of the means by which Hong Kong journalists obtained information. She quoted the example of journalists misrepresenting themselves as the relatives of victims injured in traffic accidents so that they might gain access to the hospital ward and interview the victims. She added that she had witnessed a victim experiencing an extreme state of distress as a result of such intrusion.

2.78 Another reported incident involved a film star who alleged that a newspaper journalist gained entry to her home by falsely describing himself to her domestic maid as her friend. The journalist subsequently took photographs inside her home.

2.79 While deception might allow journalists to expose unlawful activities and social evils, such practices may undermine the public’s trust in the media and erode the credibility of journalism. It would adversely affect the news-gathering ability of journalists in the long term. Besides, the use of dishonest methods to obtain information is always open to the accusation that two wrongs do not make a right. There is also the question of hypocrisy:

“Given that the news media’s function, at least in part, is to seek out and expose wrongdoing as such, it had better not be guilty of the very same sins it exposes in others if it is to avoid the charge of hypocrisy. That is, journalists have a moral duty to report faithfully and expose wrongdoing. Hence journalists and the news media must themselves consistently aim to respect the very same ethical standards of behaviour that they demand others should adhere to or strive for.”[162]

2.80 Although some would argue that any form of deception to obtain information is unacceptable in a profession which requires its members to be honest in their gathering and reporting of information, we think that deception which is not unlawful may be acceptable in those rare instances in which the journalist has reason to believe that the value of the information sought is of vital public interest, and the information cannot be obtained by non-deceptive means, provided always the kind and degree of deception is proportionate to the evil to be exposed. We agree with the Poynter Institute for Media Studies in the US that the following criteria should be applied when the use of hidden cameras or the misrepresentation of identity is being considered:[163]

• “When the information obtained is of profound importance. It must be of vital public interest, such as revealing great ‘system failure’ at the top levels, or it must prevent profound harm to individuals.

• When all other alternatives for obtaining the same information have been exhausted.

• When the journalists involved are willing to disclose the nature of the deception and the reason for it.[164]

• When the individuals involved and their news organisation apply excellence, through outstanding craftsmanship as well as the commitment of time and funding needed to pursue the story fully.

• When the harm prevented by the information revealed through deception outweighs any harm caused by the act of deception.

• When the journalists involved have conducted a meaningful, collaborative, and deliberative decisionmaking process on the ethical and legal issues.”

2.81 The Poynter Institute further suggests that the following criteria cannot be used to justify deception:[165]

“Research is a legitimate tool of publicistic work but must be conducted within the bounds of the constitution, the law and respect for human dignity. As a matter of principle, a researching journalist who makes untruthful statements about his identity or the identity of the publication he represents is guilty of conduct incompatible with the dignity and role of the press.

Covert research can be justified in individual cases if it brings to light information of special public interest which could not be obtained by other means.

In the case of accidents and disasters, the press shall bear in mind that rescue operations for victims and persons in jeopardy take precedence over the public’s right to be informed. Nor does the public’s interest in being informed justify any unlawful acts committed by journalists to acquire news material.”

2.83 Paragraph 5 of the Hong Kong Journalists Association’s Code of Ethics provides that the use of means that are not “straight forward” to obtain information and photographs can be justified only by “over-riding considerations of the public interest”.[167] We would add that journalists should not use means which are not straightforward unless (a) the means are lawful in the criminal and civil sense, (b) there is no other reasonably practicable means of obtaining the information, (c) the degree of intrusion is proportionate to the seriousness of the matter under investigation, and (d) the use of such means can be justified to be in the public interest

Surreptitious recording in private premises

2.84 Journalists may use hidden cameras to record dangerous or illegal activities. Visual proof adds weight to their reports. Yet journalists may also use hidden devices to record private activities inside private premises. For instance, a newspaper published an article describing the activities inside a private club. The article alleged that the club was frequented by homosexuals. Several photographs taken covertly inside the common room, toilet and shower room of the club had been published in the newspaper. Although the eyes of the individuals were obscured, a columnist of another newspaper wrote that those who knew the subjects in the photographs would have had no difficulty identifying them. He alleged that one of the subjects was known to him and that that person was worrying how he could explain the matter to his parents. The columnist suggested that the subjects might lose their jobs or break up with their family as a result of the exposure.

2.85 Under our proposals in the Civil Liability Paper, a defendant in an action for invasion of privacy would not be liable if the act or conduct in question was reasonably necessary for the protection of the person or property of the defendant or another. Hence, reporters may place a bug in private premises without the consent of the occupier or carry a hidden recording device with him while he is lawfully present in private premises - if he could argue that it is necessary to protect the person or property of a certain class of Hong Kong residents, e.g. patients or consumers. However, the placement or use of a hidden device may not be proportionate to the legitimate aim of the intrusion. For instance, while a reporter who seeks to investigate an allegation that a doctor unlawfully prescribes prohibited drugs to patients may legitimately argue that carrying a hidden camera or microphone with him while posing as a patient is reasonably necessary for the protection of patients, the reporter would be going too far if he plants a recording device in the doctor’s consultation room to enable him to monitor the doctor’s activities day and night.[168]

2.86 We believe that hidden cameras and microphones should generally not be used to record individuals who are not aware of their existence unless the material so obtained is essential to establish the credibility of a story, and the story itself is of important public interest. Besides, the criteria for the use of unattended recording devices should be much stricter than those for the use of recording devices carried by a journalist. Whereas recording devices may be used to collect personal information with a view to its publication or broadcasting if there is evidence of a crime or serious anti-social behaviour, unattended recording cameras or microphones should not be used unless there is evidence of serious crime. The means used should be proportionate to the matter under consideration. The following provisions of the BBC Producers’ Guidelines provide a good example as to how the line may be drawn:[169]

“Unattended recording devices (‘bugging’) - The BBC will never plant an unattended recording device on private property without permission of the owner, occupier, or their agent unless for the purpose of gaining evidence of serious crime. Controller, Editorial Policy must always agree in advance and will require clear evidence that the crime has been committed by those who are to be the subject of the recording.

Other secret recording techniques (carrying hidden cameras or microphones) - If permission of the owner, occupier or their agent has not been obtained, the BBC will generally use hidden cameras or microphones on private property only where prime facie evidence exists of crime or of significant anti-social behaviour by those to be recorded. It will be necessary for programme-makers to show why an open approach would be unlikely to succeed, and why the material is necessary in programme terms. ....”

Recording of oral or telephone conversations with the consent of one party

2.87 It is permissible under our proposals in the Consultation Paper on Civil Liability for Invasion of Privacy to record a telephone conversation if it is done by or with the consent of one of the parties to the conversation. A journalist who makes a call would continue to be able to record a conversation without giving notice to the other party. Recording oral or telephone conversations can ensure accuracy in reporting and protect journalists from charges that they have misquoted the interviewee. Surreptitious recording may also be the only way to extract information about illegal activities that would otherwise be concealed from public view. Such surreptitious recording, though not unlawful, may nonetheless be thought immoral. Although journalists should be allowed to record oral or telephone conversations for note-taking purposes and to defend possible legal action, we consider that surreptitious recordings of oral or telephone conversations for possible broadcasting should not be made unless consent from the other party would not be forthcoming and there is prima facie evidence of crime or serious anti-social behaviour. Where such requirements are not satisfied, the journalist should identify himself and explain that he is seeking information to be included in a programme. Furthermore, even if the subject has agreed to be interviewed, the conversations should not be used in a broadcast programme unless the subject has also given his consent to its transmission.[170]

Interception of telephone conversations

2.88 Apart from recording a conversation, there is the possibility of someone (who may or may not be a journalist) intercepting a telephone conversation without the consent of the parties. Information obtained by the interception may be published by the press. In March 1999, a newspaper published the contents of a telephone conversation which had been intercepted by a person described as a reader of the newspaper. The conversation was alleged to have been made between a singer and a celebrity. The Hong Kong Performing Artistes Guild issued a statement condemning the interception and reportage. They stated that the publication of intercepted material, whether the contents are true or not, is an abdication of the social responsibility of the news media and would undermine the credibility of the news media. Ming Pao Daily News comments that the reportage is a breach of privacy that cannot be justified in the public interest but would indirectly encourage intrusion by unauthorised interception.

Public figures and their family members

2.89 Public figures and their family members are likely to become the subject of media intrusion. The US Supreme Court has defined the meaning of “public figure” for the purposes of the First Amendment as follows:[171]

“For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”

2.90 In July 1995, the Hong Kong Performing Artistes Guild staged a public protest against the intrusive activities of some sections of the press. Its declaration stated:[172]

“Recently, some newspapers and weeklies surreptitiously photographed and followed artistes and their family members and exposed their private lives. They exaggerated when giving an account of a story; distorted the facts; highlighted incidents out of context; misled the public; and even attempted to force their way into private premises in order to take photographs inside, and interfered with the private lives of artistes and their family members. ... As a result, the artistes were constantly on edge, feeling helpless and were in great distress. [Such activities] became a nuisance to their friends and relatives, who were also in fear and under immense psychological pressure.”

2.91 A survey conducted by the Social Sciences Research Centre of the University of Hong Kong shows that the public generally objects to the news media reporting on the private life of legislators and television artistes:[173]

a) Over 60% of respondents were opposed to the exposure of the private life of legislators by the media. As regards the private life of television artistes, about 55% were opposed to the reporting of such facts by the media.

b) Most of the respondents felt that the public has a right to know the academic qualifications, nationality, age and medical history of legislators. But they were inclined to think that the family background, personal wealth and private life of legislators should be kept secret.

c) The respondents generally felt that reports on television artistes had nothing to do with press freedom or the public’s right to know.

2.92 We agree with the views expressed in American Jurisprudence that those who expressly or impliedly submit themselves to public attention or criticism must accept that they have less privacy than others, at least as to legitimate reporting of facts concerning their public activities:

“A person who by his or her accomplishments, fame, or mode of life, or by adopting a profession or calling which gives the public a legitimate interest in his or her doings, affairs, and character, may be said to have become a public personage, thereby relinquishing at least a part of his or her right of privacy. ... [A]ny person who engages in a pursuit or occupation which calls for the approval or patronage of the public submits his or her private life to examination by those to whom he or she addresses his or her call, to the extent that may be necessary to determine whether it is wise and proper to accord him or her the approval or patronage which he or she seeks.”[174] (emphasis added)

2.93 The American Restatement makes a similar observation:

“One who voluntarily places himself in the public eye, by engaging in public activities, or by assuming a prominent role in institutions or activities having general economic, cultural, social or similar public interest, or by submitting himself or his work for public judgment, cannot complain when he is given publicity that he has sought, even though it may be unfavourable to him. So far as his public appearances and activities themselves are concerned, such an individual has, properly speaking, no right of privacy, since these are no longer his private affairs.”[175] (emphasis added)

2.94 Accordingly, we conclude in our Consultation Paper on Civil Liability for Invasion of Privacy that the publication of private facts concerning a public figure which are wholly unconnected with his fitness for a public office or profession or his ability to discharge public or professional duties should generally be suppressed. The mere fact that he is a public figure should not deprive him of protection if the press gives publicity to his private activities or behaviour which has no relevance to his public or professional role.

2.95 The following statements from the BBC Producers’ Guidelines best describe how press freedom could be reconciled with the privacy interest of public figures who are holding public office:[176]

“Public figures are in a special position but they retain their rights to a private life. The public should be given the facts that bear upon the ability or the suitability of public figures to attain or hold office or to perform their duties, but there is no general entitlement to know about their private behaviour provided that it is legal and does not raise important wider issues.

As a general principle, BBC news programmes should not report the private legal behaviour of public figures unless broader public issues are raised either by the behaviour itself or by the consequences of its becoming widely known. The mere fact that private behaviour is ‘in the public domain’ (i.e. that someone else has reported it), is not in itself sufficient to justify the BBC reporting it too.”

2.96 The news media may therefore report the activities of public figures provided that such activities are matters of legitimate public concern. However, they should not disclose more details than are necessary to keep the public informed of the issues at stake. For instance, although there might be a legitimate interest in publicising the fact that a senior government official was seriously ill, the publication of the minute details of the official’s medical record would be excessive and unreasonable, even though the materials came into the hands of the editors lawfully.

2.97 As regards artistes and celebrities who seek publicity, although they have no right to privacy in respect of their public appearances and public activities, their privacy should nevertheless be respected by the media unless it is they who submit their private lives to public scrutiny.

2.98 The news media is also interested in reporting on the family members of public figures. We consider that an individual’s actions should not be reported merely because of his family ties to a public figure. His actions should be reported only if what he has done is of significance to society.

2.99 The following examples show that the media is interested in reporting the private lives of public figures who are or had been in show-business:

a) The journalists of a magazine had been watching for at least two evenings outside a building in which a former Miss Asia lived. On one occasion, she was spotted (and surreptitiously photographed) arriving at the main entrance of the building with a man who was reported to be the boss of a listed company and who had recently married. The magazine further reported that the man left the building at half past two in the morning. Two days later after the man was spotted outside the building, the same man was followed by journalists from the magazine. He was seen (and surreptitiously photographed) chatting happily with his wife on the staircase of a cinema. All the photographs were published in the magazine. The full names of the man and his wife were also disclosed.

b) A magazine reported that an actress left a hotel room at around four o’clock in the morning after spending more than four hours with a director in the room.

c) A former artiste had been pregnant for four months. A newspaper reported that she was sent to hospital after she had discovered that she was bleeding from her genitals when she was in the washroom. A photograph of her lying on a stretcher was published. The newspaper said she used to take part in films which were not suitable for children but had not been in showbusiness since 1993. The story was accompanied with a sexy photograph of her taken when she was still an actress.

d) A singer was reported to have been living in premises which were owned by a wealthy woman. The name of the woman was revealed in the report.

e) A magazine published the intimate details of the sex life of a former Miss Hong Kong and her separated husband. These details were disclosed by the husband and had caused embarrassment to the former Miss Hong Kong.

f) A magazine reported that an artiste had been rumoured to have suffered a loss in the stock market. It further published a monthly credit card statement which was purported to be addressed to her. Although her address and credit card number in the statement were blanked out, the financial data recorded therein were not. The report suggested that her financial position was not sound.

Children

2.100 Children may become the subject of media attention. A child may commit a crime or engage in anti-social behaviour. Equally possible is that the victim of crime or anti-social behaviour is a child. News about a child attempting to commit suicide is also not uncommon. Where an adult has become a public figure by reason of a newsworthy event, the media may wish to cover his children’s reactions. Journalists may follow the children of a public figure in order to find out more about the latter even though the private facts of the children are not matters of public concern. Occasionally, it is the parent who voluntarily discloses private facts about his children to the media. Very often, particulars of the child are revealed and his privacy intruded upon merely to make the report more sensational and interesting to read.

2.101 Media intrusion into the private life of a child and publicising the identity of a child will cause unnecessary embarrassment and additional psychological stress to the child and his or her parents, especially if the child is a victim of sexual abuse. This would not only adversely affect the child’s self-image but would also jeopardise the rehabilitation process which would otherwise help the child to recover from the trauma, to return to normal life and to turn over a new leaf.

2.102 The Code on Fairness and Privacy adopted by the Broadcasting Standards Commission in the UK provides:[177]

“Children’s vulnerability must be a prime concern for broadcasters. They do not lose their rights to privacy because of the fame or notoriety of their parents or because of events in their schools. Care should be taken that a child’s gullibility or trust is not abused. They should not be questioned about private family matters or asked for views on matters likely to be beyond their capacity to answer properly. Consent from parents or those in loco parentis should normally be obtained before interviewing children under 16 on matters of significance. Where consent has not been obtained or actually refused, any decision to go ahead can only be justified if the item is of overriding public interest and the child’s appearance is absolutely necessary. ...”

2.103 Under the United Nations Convention on the Rights of the Child, children below the age of 18 should not be subjected to arbitrary or unlawful interference with their privacy. They are entitled to the protection of the law against such interference[178] and to receive such protection and care as are necessary for their well-being, in particular, their interest in completing their full-time education without unwarranted media intrusion. The privacy of children should not be sacrificed only to satisfy the curiosity of readers and to increase the circulation of a newspaper or magazine. Children whose fathers or mothers are in the public eye are particularly vulnerable. A publication invading the privacy of a child cannot be justified on the ground that it is in the public interest to intrude into the privacy of his parent. The fame, notoriety or position of a child’s parent cannot justify the publication of material about the private life of a child. A child has a general right to object to being followed or photographed by journalists even though his parent is a public figure. In the absence of any public interest justification other than the relationship with his parent, the news media should not publicise facts about a child’s private life or include him in a picture if this is against his wish or detrimental to his interests.

2.104 The following are instances where the private lives of children have become the subject of media attention:

a) A separated couple had a dispute over the custody of their child. The separated husband was the son of a public figure. A journalist surreptitiously followed the separated wife on the day when her child, who was the subject of the dispute, participated in sports events organised by his school. After the sports events were over, the journalist followed the mother and child to a fast-food stall where the two were surreptitiously photographed having snacks together. The photograph, which included the child, was published in a magazine. The full name of the child was also disclosed.

b) A magazine published on the front cover a photograph of the two sons of an artiste who had participated in a beauty contest when she was in her 40’s. It reported that her sons, aged 9 and 12, were studying in an international school in Hong Kong.

c) A Mainland Chinese worker who had participated in the pro-democracy movement in China in 1989 applied to the Immigration Department for extension of permission to stay in Hong Kong. He had a family in Hong Kong, including two sons, the elder of whom was four years old. A newspaper disclosed the full names of the sons as well as the father. It also published a photograph of his family in which the father was seen filling a form but his elder son was hiding his face with his hands. The subtitle read: “While the father becomes the focus of media attention because of his right of abode [in Hong Kong], his son sitting next to him refuses to face the camera.”

d) A mother was seriously injured when she sought to protect her 11-year-old son from being knocked down by a car. A newspaper reported that her son might not have followed the traffic regulations when crossing a street. It published the full name of the mother, the surname and the second character of the first name of the son, and a family photograph of the child sitting with the mother. Although the photograph may have been obtained lawfully, there is a risk that publishing it in the newspaper would expose the child to hatred and contempt by his classmates and acquaintances. Another newspaper published the same photograph but the face of the child in that photograph was obscured.

e) A 13-year-old student used a cutter to cut her hand. She was described by a newspaper as a “problem girl” who was “introverted and anti-social” and could not get herself involved in school and family life. The article disclosed her surname (and crossed out the second character of her name, thereby revealing that her name had only two characters including her surname), age, family address (including the floor number and the name of the building and housing estate), and the class and name of the school she attended. It further revealed that she was emotionally unstable, had difficulty communicating with others, that her relationship with her family was poor, that she had been found guilty of stealing money and sentenced to a reform school for one month, under the care of the Social Welfare Department, that she had been ordered to stay overnight at the psychiatric department of a specified hospital for observation and counselling, and had developed a habit of cutting her hands. A photograph of her waiting inside a hospital was published. Although her eyes were obscured, her classmates, friends and relatives would have had no difficulty identifying her if they have read the article.

f) In a bid to report on the measures which had been introduced to prevent the spread of an intestinal virus in Hong Kong and to inform readers that a school had instructed its students to wear slippers inside the washroom, a journalist took a photograph of three boys urinating inside a school toilet. The hips of one of them were exposed to the camera.

g) A 17-year-old student attempted to commit suicide by jumping from the roof of a building. She landed on an air bag on the ground floor. A newspaper reported that she was a Form 4 student living in a specified building in Shatin. Her brother was reported as saying that she might have had emotional problems with her boyfriend. The report was accompanied with a photograph showing her jumping from the roof of the building. Her face was not obscured in the photograph.

h) A newspaper reported that a 63-year-old man who was unemployed and in financial difficulties had to queue for free rice distributed at Yue Lan Festival. It added that he had applied for Comprehensive Social Security Assistance payment and had three children aged nine to thirteen who came to Hong Kong from Mainland China in 1998. The report was accompanied with a photograph showing him embracing a bucket of rice with his daughter sitting next to him. The name of his daughter was disclosed in the report.

i) A Hong Kong resident had been sentenced to death in Mainland China for a series of crimes involving kidnappings and smuggling of arms and ammunitions. A newspaper published on the front page, a photograph of his two sons, aged four and seven, leaving a Guangzhou restaurant after visiting him at a detention centre before the appeal against his execution was decided. The faces of the two boys were not obscured.

j) The press reported that a popular singer was not on good terms with her husband. A newspaper published the full name of their daughter and the name of the kindergarten she was going to attend. A columnist of another newspaper wrote that certain sections of the news media had interviewed the child outside the kindergarten, followed her, taken pictures of her, and published her private facts which had been told by other sources.

Accuracy

2.105 There have been instances where newspapers and periodicals were alleged to have published inaccurate data about an individual:

a) An article in a magazine alleged that a prominent businessman was dying of cancer. When the businessman decided to bring an action in defamation, the editor admitted that the allegation was entirely without basis. It was reported that the author of that article was a 19-year-old journalist who had received no more than secondary school education.

b) A newspaper alleged in its front page that a former senior Chinese official had committed suicide. Two days later, the individual concerned gave a telephone interview at Beijing, confirming that he was still alive.

c) The host of a radio programme was assaulted on the street. A photograph showing the injury on his head had been manipulated and published in a magazine. The injury depicted in the altered photograph was more serious than it really was.

d) The chairman of a public company once talked to the press about the conduct of a magazine. He said that he had given permission to the magazine taking some photographs of his office. However, one of the photographs published in the magazine had allegedly been altered by the inclusion of a non-existent photograph in his office. He claimed that he did not have such a photograph inside his office when he invited the journalist to his office.

e) A Harvard academic was commissioned by the Government to produce a report on Hong Kong’s health care financing and delivery system. He was reported as having told a newspaper that a journalist from a Hong Kong magazine visited his office in the United States. The academic declined to be interviewed but allowed the journalist to take pictures of his office. Subsequently, the magazine published an article about “the interview”. He said he now realised that journalists could write an article about an interview provided that they were allowed to take pictures.

f) A newspaper published a picture showing a businessman participating in the ground-breaking ceremony of a hotel invested by a company. The caption named the lady standing next to the businessman as his wife. Subsequently, the company issued a notice alleging that it was a misnomer.

2.106 An article in a newspaper pointed out that a press photographer who had not taken any photographs of a juvenile offender might take a photograph of another juvenile on the street as a substitute if the editor decided to treat the news as a top story in the newspaper. The article suggested that the newspaper did not respect the rights of the innocent juvenile because he had neither money nor reputation such that it was unlikely that he would take legal action against the newspaper. The article also expressed concern over the “phenomenon” of newspaper publishing a “fake photograph” of an individual which purported to be the picture of a victim.[179]

2.107 We consider that the news media should take care not to publish inaccurate or misleading personal information including pictures.

Dramatised reconstruction

2.108 The broadcaster may reconstruct a crime or certain anti-social behaviour in order to educate the public or to investigate a social issue. Such dramatised reconstruction may publicise the private facts of victims or perpetrators. Although they might be justified on the ground that the subject matter is one which is of genuine public concern, care should be taken not to interfere with the private lives of the individuals concerned and their immediate family members. Where the victim has died, the BBC Producers’ Guidelines stipulate that his family members should be informed of the times of the intended transmission of the programmes.[180]

Surreptitious recording for entertainment purposes

2.109 Television programmes may record surreptitiously in public places for entertainment purposes. The individual who features in the recording may feel aggrieved if the material is broadcast without his consent, especially when he is thereby exposed to ridicule. The express consent of the individual should therefore be obtained before the material is broadcast. Any request to destroy the material recorded should be complied with.

Other cases

2.110 A newspaper reported that a journalist from another newspaper forced his way into the residence of a would-be Miss Asia and took photographs inside against her wishes.

2.111 A newspaper published a picture of the front gate of the house of a Hong Kong resident who was being tried for kidnapping and smuggling of arms in Mainland China. Four persons, presumably press photographers, were seen standing or sitting on the concrete fence of the house. Four ladders about one metre high were placed beside the fence. The caption read: “Open secret – Photographers try to gain access to [the resident’s] Cumberland Road home.”

2.112 Some newspapers and magazines publish photographs of women whose underwear (such as panties or the shoulder strap of a bra) are accidentally exposed to public view. Some readers find such publications objectionable, even though the information disclosed is arguably in the public domain.

Conclusion

2.113 The cases mentioned in this chapter suggest that press freedom has been abused by some sections of the news media. They also indicate that there is a pressing social need to protect members of the public from unwarranted media intrusion. An increase in the knowledge of the private facts revealed in the above cases did not have much bearing on the ability of citizens to make informed judgments about their social and political lives. Giving publicity to the identities of victims and their friends and relatives, whether by revealing their names or addresses or by publishing their pictures, would not normally put the audience in a better position to understand social issues, nor would it help them to assess the wisdom of governmental decisions and to make responsible judgments about their daily lives. But giving publicity to the identities of these individuals may cause distress, embarrassment and humiliation to them.

2.114 However, despite the enactment of the Personal Data (Privacy) Ordinance and the efforts made by the Privacy Commissioner to stress the importance of personal data privacy, there have been instances where the news media have intruded upon individual privacy. The existing legal framework within which the news media operates has failed to prevent the professional standards of the media from declining. It is telling that mainstream newspapers are involved in the intrusive conduct referred to in this chapter. Yet the various professional bodies representing the interests of the news media have made no serious attempts to regulate such intrusive news-gathering activities and publications.

2.115 Individuals who are neither wealthy nor powerful are particularly vulnerable. While the media would exercise restraint when dealing with the rich or powerful for fear that any excesses on their part would result in legal proceedings against them, the privacy interests of ordinary citizens are often sacrificed or ignored in order to satisfy the curiosity of the public and to outperform competitors in the market.[181] In the UK, around 90% of the cases dealt with by the Press Complaints Commission involved ordinary members of the public who had been given some unwanted or unjustified treatment by the newspapers. Only about 5% of the cases involved people who were considered to be celebrities.[182] We consider that all individuals should be protected from unwarranted intrusion irrespective of their status and power in society.[183]

2.116 Ma Chi-shen, Dean of the Department of Journalism and Communication in the University of Chinese Culture in Taiwan, has compared the pen used by a journalist to a weapon with a pointed edge. He remarks, metaphorically, that the pen used by a journalist can injure a person and kill him without causing him to bleed. If the pen is used without restraint, the welfare of every individual is at risk. He further remarks that in view of the immense power and influence of the news media over society and the speed and wide coverage of mass communication, the harm caused by a news organisation which is not functioning properly would be far more serious and widespread than that caused by a sharp weapon. He hopes that journalistic ethics could play a role in promoting self-criticism and self-regulation by the media.[184]

2.117 After reviewing the experience of press self-regulation in other jurisdictions, we shall examine whether self-regulation provides the answer to media intrusion in Hong Kong.

[98] The HKJA and ARTICLE 19, The Ground Rules Change - 1999 Annual Report, pp 21 – 22.
[99] The HKJA and ARTICLE 19, Questionable Beginnings – 1998 Annual Report, pp 35 & 38.
[100] HKJA Ethics Committee, “Media Ethics: The HKJA Mechanism”, 22 Nov 1998, p 1.
[101] Society for Truth and Light, Report on the Survey on the Chinese-language Newspapers Pollution Index (April 1999). Apple Daily, Oriental Daily News and The Sun scored 6.5, 6.1 and 5.7 out of 10 in the Improper Reportage Index respectively. In the Inaccuracy Index, they scored 6.1, 5.6 and 5.5 respectively.
[102] See the views of the British Press Council recorded in the Younger Report: Report of the Committee on Privacy (London: HMSO, Cmnd 5012, 1972), para 166.
[103] Taiwan’s Code of Ethics for the Press, para 7(4).
[104] J Black, B Steele & R Barney, Doing Ethics in Journalism - A Handbook with Case Studies (Boston: Allyn and Bacon, 2nd edn, 1995), 156.
[105] J Black, B Steele & R Barney, above, 159.
[106] Adopted by the Swedish Co-operation Council of the News Media in 1995; at <http://www. uta.fi/ethicnet/sweden.html>.
[107] Press Code drawn up by the German Press Council (February 1994), Guideline 8.1.
[108] Sing Tao Daily, 17 June 1998; Hong Kong Daily News, 17 June 1998. It is an offence to publish any matter which is likely to identify any person as the complainant of a “specified sexual offence”, including rape and indecent assault: Crimes Ordinance (Cap 200), sections 156 & 157.
[109] Above.
[110] J Hurst & S A White, Ethics and the Australian News Media (MacMillan Education Australia Pty Ltd, 1994), p 116 (footnotes omitted); referring to P Grabosky and P Wilson, Journalism and Justice: How Crime is Reported (Sydney: Pluto Press, 1989).
[111] L Hodges, “The Journalist and Privacy”, in Journal of Mass Media Ethics: Special Issue - Privacy II (New Jersey, Hillsdale, Lawrence Erlbaum Associates, 1994), 209.
[112] To protect the interests of the journalist concerned, the source of this quote is not cited.
[113] The National Victim Center (US), “Crime Victims’ Privacy Rights in the Media”, at <http://www.nvc.org/ddir/INFO35.HTM> (28.4.98). Guideline 11.2 of the German Press Code provides that “The bounds of acceptable reporting on accidents and disasters are exceeded where the suffering of victims and the feelings of their families cease to be respected. Those hit by misfortune must not become victims for a second time because of the tactless media coverage.”
[114] Quoted in J Black, B Steele & R Barney, above, 196.
[115] Para 8.0. The Policy is reproduced in J Hurst & S A White, above, Appendix 7.
[116] Eg the plaintiff in Kaye v Robertson [1991] FSR 62.
[117] Bylaw 7(1) of the Hospital Authority Bylaws (Cap 113, sub leg A) provides that no person shall, in a hospital - “(f) take any photograph or film or video picture whereby the likeness of a patient in the hospital is thereby depicted without the consent of such patient; or (g) take any photograph or film or video picture whereby any ward in a hospital is thereby depicted without the consent of a member of the staff whose consent shall not be withheld unless annoyance or disturbance to a patient, or prejudice to medical treatment of a patient, is thereby caused or likely to be caused.”
[118] See 86 ALR3d 374 at 378.
[119] HKLRC Privacy Sub-committee, Privacy: Regulating Surveillance and the Interception of Communications (1996), chapter 1.
[120] Raymond R Wong, “Credibility Crisis: What’s Wrong with Journalism and How to Fix It”, at <http://www/.hku.hk/mstudies/english/Sph_rrw1.htm> (2.3.99), p 1. Speech delivered at the conference jointly organised by the HKU Centre of Asian Studies and The Freedom Forum Asian Center on 26 Jan 1999.
[121] [1995] 3 EMLR 163; [1995] COD 207.
[122] The BBC Producers’ Guidelines provide: “So far as is reasonably practicable, surviving victims or the immediate families of the dead people who are to feature in the programme should be informed of the BBC’s plans. Failure to do this may be deemed a breach of privacy, even if the events or material to be used were once in the public domain. The programme should proceed against the objections of those concerned only if there is a clear public interest.” BBC, Producers’ Guidelines (November 1996), ch 4, section 5.6, p 46.
[123] Para 8 of Canon of China Journalists, adopted by Taipei Journalists’ Association in 1957.
[124] B Steele, “Doing Ethics: Ask Good Questions to Make Good Ethical Decisions - A Poynter Institute Handout” (1995), at <http://www.poynter.org/research/me/me_doetho.htm>.
[125] One can also think of the hypothetical case of revealing the identity of a private citizen who died in consequence of acquiring AIDS. Revealing such information is likely to adversely affect the private life of the family members of the deceased.
[126] Caritas Community Centre (Kowloon), Opinion survey on the views of parents on the way Chinese-language newspapers deal with news pictures (June 1999), para 7(2).
[127] Taiwan’s Code of Ethics for Television Broadcast provides that broadcasters should avoid showing dead bodies on the television when reporting fatalities. It is worth noting that the Texarkana (Texas) Gazette in the US has adopted a Dead Body Policy which seeks to make the Gazette a sensitive paper instead of being an exploitative, shocking newspaper: “Effective [from 9 October 1989], we will initiate a kinder, gentler photo policy that precludes dead bodies in photos. There may be some exceptions to this, if there is compelling news value. But as the norm, we will cease to show bodies under sheets, or in bags, or on stretchers, or in any other state of demise. I can’t rationalise to myself how body photographs add anything to the value of our newspaper. Instead, I think many of our readers would find them offensive. I would also extend this policy to people who are severely injured and likely to die. ... The guiding philosophy behind the policy is one of compassion for the victim’s friends and family and an empathy for the sensibilities of our readers. ...” Quoted in J Black, above, 170.
[128] Calcutt Committee’s proposed Code of Practice, para 16.
[129] Para 6.
[130] G Robertson & A Nicol, Media Law (Harmondsworth: Penguin, 3rd edn, 1992), pp 14-18, 305-309.
[131] Journalists and other members of the public may inspect Statements of Claim, affidavits and other documents filed with the High Court. Affidavits may attach copies of private correspondence containing private facts of the parties.
[132] Time, Inc v Firestone, 424 US 448 at 457.
[133] The European Convention on Human Rights has a similar provision. See Article 6(1) of the Convention. The exclusion of the public from divorce proceedings and from medical disciplinary proceedings has been considered by the Strasbourg authorities as permissible on this ground. The identity of victims of crime may be protected on other policy grounds. For example, the names of rape victims are suppressed to protect them from loss of face and to encourage them to give evidence for the prosecution. The court may also direct that a blackmail victim be anonymised to encourage potential witnesses in other blackmail proceedings to come forward.
[134] A C Kiss, “Permissible Limitations on Rights” in L Henkin (ed), The International Bill of Rights – The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), at 303-4.
[135] M Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary (Strasbourg: N P Engel, 1993), 250.
[136] PI 738/95. The claim was settled out of court. Ming Pao Daily News, 13 January 1998.
[137] Para 7. The draft was promulgated in 1995. Quoted in Ma Chi-shen, Hsin Wen Lun Li (Journalistic Ethics) (Hong Kong, 1997), Appendix 5.
[138] Melvin v Reid 112 Cal App 285 at 292; quoted in Briscoe v Reader’s Digest Association Inc 57 ALR3d 1.
[139] Restatement 2d, Torts, § 652D, Comment k.
[140] Passed on 6 November 1967. Quoted in Ma Chi-shen, p 98.
[141] A Juvenile Court has power to hear and determine any offences, other than homicide, committed by a child under the age of 16. It has exclusive jurisdiction over summary offences committed by such a child. However, for indictable offences, the jurisdiction of a Juvenile Court is concurrent with that of the High Court.
[142] Juvenile Offenders Ordinance (Cap 226), section 20A(1). In Hong Kong, children under the age of 7 years are exempt from criminal responsibility. A child aged not less than 7 years but under 14 is also exempt unless the prosecution prove that he committed an offence with “a mischievous discretion”, i.e. when he did the criminal act, he knew what he was doing was “seriously wrong”.
[143] Paras 4(4) & 7(5).
[144] See Ma Chi-shen, above, 127.
[145] Report of the Committee on Privacy and Related Matters (London: HMSO, Cm 1105, 1990), Appendix Q, section 12.
[146] BSC, Code on Fairness and Privacy (1998), para 32.
[147] BBC, ch 4, section 4.
[148] “Law Kar Leung Forced to Meet the Press”, Next Magazine, No 430, Book B, p 14.
[149] J M Chan, P S N Lee & C C Lee (1996), above, p 101.
[150] Clause 4.
[151] Apple Daily, 2 September 1997.
[152] HKU Social Sciences Research Centre, Pop Express, No 13, September 1997.
[153] HCMP 407/1998, at 29.
[154] Louis A Day, Ethics in Media Communications – Cases and Controversies (Wadsworth Publishing, 2nd edn, 1997), at 129.
[155] Para 4.7 of the RTHK Producers’ Guidelines (September 1998) provide: “Questions asked by reporters as public figures come and go from buildings are usually part of legitimate news gathering, even if the questions are sometimes unwelcome. Door-stepping should generally be a last resort. It could be justified under the following circumstances: [a] The investigation involves crime or serious anti-social behaviour, or is of great public interest. [b] The subject has failed to respond to a repeated request to be interviewed, has refused an interview on unreasonable grounds, or has a history of such failure or refusal.”
[156] “Photographer out of line at court”, South China Morning Post, 20 October 1998. Case No: WSC 9208/98.
[157] Above.
[158] HKJA Ethics Committee, “Media Ethics: The HKJA Mechanism”, 22 November 1998, p 2.
[159] Fong So, “Media Ethics : The HKJA Mechanism”, in HKJA 28th Anniversary, (1996), at p 30.
[160] See “The Inside World of ‘Puppy Teams’”, Ming Pao Daily News, 3 September 1997, D1.
[161] ITC Programme Code (Summer 1995), section 2.4.
[162] M Kieran, Media Ethics - A Philosophical Approach (London: Praeger, 1997), 2.
[163] B Steele, “Deception / Hidden Cameras Checklist - A Poynter Institute Handout” (February 1995), at <http://www.poynter.org/research/me/me_decho.htm>. Lambeth articulates that before resorting to deceptive means, the journalist must be satisfied that the probable violation of the “social contract” is judged to be: (a) systemic or nearly so, i.e. pervasively rather than selectively or occasionally present; (b) urgent, requiring immediate attention in the public interest; (c) in need of media attention before it can be properly exposed and corrected, i.e. it cannot or will not be corrected without the news media and without the news media’s use of deceptive means; (d) substantive, i.e. it violates one of the principles of the social contract in such a way that a faithful adherent of the contract would clearly adopt deceptive means to expose it; and (e) the news organisation must report to the public its attempt to use truthful, open means, the reasoning behind its choice of deceptive means, and its moral justification of why such means were deemed necessary. E Lambeth, 44 & 148-9.
[164] J Black et al remark that this requirement forces journalists to be judicious in their choice of exceptions to the truthtelling principle and requires them to be ultimately accountable to the public. J Black et al, 122. The Code of Ethics of the Society of Professional Journalists in the US provides that “Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.” It states that journalists should “[a]void undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story.”
[165] Above.
[166] Press Code drawn up by the German Press Council (February 1994), Guideline 4.1.
[167] For the Privacy Commissioner’s views on this provisions, see “Intrusive Reporting - Paper for Provisional Legislative Council Information Policy Panel Meeting on 26 September 1997”, para 5.
[168] Note that the Privacy Sub-committee has proposed in its consultation paper on Privacy: Regulating Surveillance and the Interception of Communications (1996) that the placement or use of a “sense-enhancing, transmitting or recording device” in private premises without the consent of its lawful occupier be a crime.
[169] BBC, ch 4, section 2.2.
[170] See BBC, ch 4, section 2.3.
[171] Gertz v Robert Welch, Inc 418 US 323, 345 (1974).
[172] Quoted in Y S Chan, “The Public Interest Issues Arising from the Activities of ‘Puppy Teams’” Hong Kong Economic Journal 6 February 1998.
[173] The survey was commissioned by Eastweek Magazine and reported in Eastweek Magazine, 20 May 1993.
[174] 62A Am Jur 2d, Privacy, § 193. “One who undertakes to fill a public office offers himself to public attack and criticism, and it is now admitted and recognised that the public interest requires that a man’s public conduct shall be open to the most searching criticism.” Manitoba Press Co v Martin (1892) 8 Manitoba R at 70, per Bain J.
[175] Restatement 2d, Torts, section 652D, Comment e. American Jurisprudence elaborates that “any individual who voluntarily seeks public attention will be deemed a public personage who is subject to fair comment and criticism.” See 62A Am Jur 2d, Privacy, § 193.
[176] BBC, Producers’ Guidelines (November 1996), chapter 4, section 1.
[177] BSC, Code on Fairness and Privacy (1998), para 32.
[178] Article 16.
[179] Tai Wu-tsz, “The news media bully people who are kind but are afraid of people who are ferocious”, Ming Pao Daily News, 29 April 1999, G6.
[180] See BBC, Producers’ Guidelines (November 1996), section 5.6; Independent Television Commission, The ITC Programme Code - Summer 1995, section 2.2(iii).
[181] See Tai Wu-tsz, “The news media bully people who are kind but are afraid of people who are ferocious”, Ming Pao Daily News, 29 April 1999, G6.
[182] The Rt Hon Lord Wakeham, “Ethical Decisions” at <http://www.hku.hk/mstudies/english/Sph_ rhlw1.htm> (3.3.99), p 2.
[183] Sir Zelman Cowen stresses that “[t]he virtues of a free society can only be acceptable in a society where the utmost pains have been taken to preserve the rights of the individual who may be at a grave disadvantage in resisting the pressures of great and powerful organisations possessed, as they may be, in comparison with the individual, of almost unbounded resource.” Z Cowen, “The Law and the Press: The Public’s Right to Know”, in Papers of the 7th Commonwealth Law Conference, Hong Kong, 18-23 September 1983 (7th Commonwealth Law Conference, 1983), 279 at 286.
[184] Ma Chi-shen, Hsin Wen Lun Li (Journalistic Ethics) (Hong Kong, 1997), 258.