The Regulation of Media Intrusion

This consultation paper can be found on the Internet at: http://www.info.gov.hk during the consultation period.

This Consultation Paper has been prepared by the Privacy sub-committee of the Law Reform Commission. It does not represent the final views of either the sub-committee or the Law Reform Commission, and is circulated for comment and criticism only.

The sub-committee would be grateful for comments on this Consultation Paper by 30th November 1999. All correspondence should be addressed to:

It may be helpful for the Commission and the sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential.

Anyone who responds to this Consultation Paper will be acknowledged by name in the subsequent report. If an acknowledgement is not desired, please indicate so in your response.

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Chapter	*Page*

Preface	1

Background	1
Social responsibility of the news media	2
Structure of this consultation paper	6

1. The right to privacy and freedom of expression	7

Freedom of expression	7
Basic Law of the Hong Kong SAR	7
International Covenant on Civil and Political Rights	8
European Convention on Human Rights	10
First Amendment to the American Constitution	12
Reconciling privacy with freedom of speech	14
Ascertainment and publication of truth	15
Individual self-development and fulfilment	16
Participation in a democracy	17
Safety valve function	18
Freedom of the press	18
General	18
Basic Law of the HKSAR	20
Application of general laws to the news media	21
Freedom to seek, impart and receive information	24

2. Media intrusion in Hong Kong	27

Victims of crime and tragedy	28
Persons in grief or distress	33
Recording in hospitals	37
Surviving victims and relatives	40
Funerals	43
Identity of parties and witnesses in court proceedings	44
Past criminal records	47
Juveniles in court proceedings	48
Media scrums	51
Harassment and following	51
Doorstepping	53
Gathering information by clandestine methods	55
Surreptitious recording in public places	56
Extra-territorial surveillance	57
Use of deceptive means to gather information	57
Surreptitious recording in private premises	60
Recording of oral or telephone conversations with the consent of one party	61
Interception of telephone conversations	61
Public figures and their family members	62
Children	65
Accuracy	68
Dramatised reconstruction	69
Surreptitious recording for entertainment purposes	70
Other cases	70
Conclusion	70

3. Press self-regulation in other jurisdictions	72

Australia	72
Canada	74
The Atlantic Provinces	74
British Columbia	74
Manitoba	74
Ontario	75
Germany	75
New Zealand	76
Peru	76
Sweden	77
Taiwan	78
United Kingdom	79
Press Complaints Commission	79
Broadcasting Standards Commission	85
United States	86

4. Media self-regulation in Hong Kong	88

Introduction	88
Professional associations	88
News Council	93
Self-restraint by individual news organisations	95
News ombudsman / Readers’ representative	96
Conclusion	98

5. Regulation under the Personal Data (Privacy) Ordinance	101

Personal Data (Privacy) Ordinance	101
Code of practice under the Personal Data (Privacy) Ordinance	102
Need for further measures to regulate media intrusion	103
Data Protection Principle 1	104
Data Protection Principle 3	105
Exemptions for the news media under section 61(1)	107
Privacy torts proposed in the Civil Liability Paper	108
Conclusion	110

6. Regulation under the Broadcasting Authority Ordinance	111

7. Further measures to regulate press intrusion	116

Code of ethics for the news media	116
Press code on privacy matters	117
Independent body to regulate press intrusion	119
Pros and cons of establishing a mechanism by law to regulate press intrusion	122

8. Independent body created by law to regulate press intrusion	130

Proposals and precedents in other jurisdictions	130
Press ombudsman	130
Press Complaints Tribunal	131
Press Council	133
Structure of the Press Council for the Protection of Privacy to be created by law	135
Guiding principles	135
Jurisdiction	136
Appointments Commission	139
Members of the PCPP	141
Mode of appointment	141
Proportion of press members and public members	141
Press Members	142
Public Members	144
Eligibility for appointment as a member of the PCPP	145
Term of office	146
Remuneration	146
Removal from office	146
Temporary appointment	146
Meetings	147
Declaration of interest	147
Code of conduct on privacy-related matters	148
Complaints procedure	148
Waiver of legal rights	152
Powers of the PCPP	153
Compensation	154
Financial penalty	154
Enforcement of adjudications	157
Right of appeal	158
Education	159
Reports	160
Indemnity	160
Funding	161
Administrative support	162
Conclusion	163

9. Summary of recommendations	164

Annex 1 - Code of Ethics of the Hong Kong Journalists Association	172

Annex 2 - Taiwan’s Code of Ethics for the Press	173

Annex 3 - Code of Practice ratified by the Press Complaints Commission in the UK	175

Hong Kong Law Reform Commission

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CONTENTS

Chapter

Page