Hong Kong Law Reform Commission

[Index] [Table of Contents] [Search] [Help]

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

CIVIL LIABILITY FOR INVASION OF PRIVACY

This report can be found on the Internet at: http://www.hkreform.gov.hk/.

December 2004

The Law Reform Commission was established by the Executive Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Secretary for Justice or the Chief Justice.

The members of the Commission at present are:

The Hon Ms Elsie Leung Oi Sie, GBM, JP,
Secretary for Justice (Chairman)

The Hon Mr Justice Andrew Li, Chief Justice
Mr Tony Yen, SBS, JP, Law Draftsman
Dr John Bacon-Shone
The Hon Mr Justice Bokhary, PJ
Professor Albert Chen, JP
Mr Anthony Chow, SBS, JP
Professor Y K Fan, JP
Mr Alan Hoo, SBS, SC, JP
The Hon Mrs Sophie Leung, SBS, JP
Professor Mike McConville
Mr Benjamin Yu, SC

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

20/F Harcourt House
39 Gloucester Road
Wanchai
Hong Kong

Telephone: 2528 0472
Fax: 2865 2902
E-mail: hklrc@hkreform.gov.hk
Website: http://www.hkreform.gov.hk

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

Chapter	*Page*

Preface	1

1. The right of privacy	6

The notion of "privacy"	6
Psychological aspects of privacy	14
Functions of privacy	16

2. Protection of privacy under existing laws	19

Basic Law of the Hong Kong SAR	19
Common law	19
Trespass to land	20
Nuisance	21
Breach of confidence	23
Infringement of copyright	27
Breach of contract	27
Intentional infliction of emotional distress causing physical harm	27
Trespass to the person	28
Defamation	29
Malicious falsehood	29
Kaye v Robertson	30
Hong Kong Bill of Rights Ordinance	30
Personal Data (Privacy) Ordinance	31
The Data Protection Principles	31
Rights of redress	35
Protection of freedom of the press	36
Limitations of the PD(P)O	37
Concluding remarks	43

3. Freedom of expression and the right to privacy	46

Right of privacy and free speech values	46
Freedom of the press	49
International Covenant on Civil and Political Rights	52
American Convention on Human Rights	55
European Convention on Human Rights	56

4. The law of privacy in other jurisdictions	61

Australia	61
Austria	63
Brazil	64
Canada	64
Mainland China	68
Denmark	69
England and Wales	69
Estonia	73
France	73
Germany	75
Hungary	77
India	77
Ireland	78
Italy	79
Lithuania	80
Macao, China	80
The Netherlands	81
New Zealand	81
Norway	84
The Philippines	84
Russia	84
South Africa	85
South Korea	86
Spain	86
Taiwan, China	86
United States	87
Other jurisdictions	89
Conclusion	90

5. Providing civil remedies to victims of unwarranted invasion of privacy	91

Need for civil protection against invasion of privacy	91
Judicial development or legislation?	97
Legislative approach to the creation of a tort of invasion of privacy	105

6. Intrusion upon the solitude or seclusion of another	108
Need for protection from intrusion upon privacy	108
Reasonable expectation of privacy	117
Intrusion upon the "solitude" or "seclusion" of another	119
Physical intrusion	124
Non-physical intrusion	125
Aural surveillance	126
Visual surveillance	128
Intrusion into the private affairs or concerns of another	129
Unauthorised filming by a lawful visitor	131
Standard of liability	134
Offensiveness of an intrusion	134
Conclusion	136
Comments made by respondents	137
Privacy in the workplace	140
Defences to an action for intrusion	141
Consent	141
One-party consent	142
Lawful authority	148
Legitimate interests justifying an intrusion	149

7. Unwarranted publicity given to an individual's private life	152

The need to provide a civil remedy for unwarranted publicity	152
Matters concerning an individual's private life	156
Publicity vs disclosure to a selected few	161
Offensiveness of the publicity	163
Defences to an action for unwarranted publicity	166
Consent	166
Lawful authority	167
Privileged disclosure	167
Publicity in the public interest	168
Principle of proportionality	178
Legitimate aims of giving publicity to an individual's private life	180
Facts concerning an individual's private life that are available in the public domain	183
Facts available in public records	184
Facts concerning an individual's private life in public places	190
Facts which have previously been disclosed to others	196
Concluding remarks	200
Relationship between intrusion and unwarranted publicity	202

8. Privacy of ex-offenders	205

9. Anonymity of victims of crime	216

Anonymity of victims of sexual offences	216
Anonymity of victims of non-sexual crime	219
Judicial Proceedings (Regulation of Reports) Ordinance	228

10. Appropriation of a person's name or likeness	230

Is appropriation of a person's identity a privacy concern?	230
Use of personal data in advertisements	243

11. Publicity placing someone in a false light and factual inaccuracies reported in the press	247

Existing protection	247
Overseas jurisprudence	251
Conclusion	264

12. Enforcing the right to privacy	266

Proof of damage	266
Damages	267
Injunction	267
Apology	268
Account of profits	269
Delivery up	269
Form of trial	271
Limitation period	274
Parties to a privacy action	275

13. Summary of recommendations	277

Annex

List of those who responded to the Privacy Sub-committee's Consultation Paper on Civil Liability for Invasion of Privacy	282

Hong Kong Law Reform Commission

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

CIVIL LIABILITY FOR INVASION OF PRIVACY

December 2004

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

CONTENTS

Chapter

Page