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Hong Kong Law Reform Commission |
1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of "privacy".[1] The Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the sub-committee are as follows:
Dr John Bacon-Shone (Chairman)
Director, Social Sciences Research Centre, The University of Hong Kong
Mr Don Brech
Principal Consultant, Records Management International Limited
(Former Director, Government Records Service)
Professor Johannes M M Chan (from November 2001)
Honorary Senior Counsel,
Professor (Reader) and Dean, Faculty of Law, The University of Hong Kong
Mrs Patricia Chu, BBS, JP (till April 2001)
Former Deputy Director of Social Welfare (Services), Social Welfare Department
Mr A F M Conway
Chairman, Great River Corporation Limited
Mr Edwin Lau
Chairman, Hooray Holdings Limited
(Former Assistant General Manager & Head of Strategic Implementation Asia Pacific, HSBC)
Mr Robin McLeish (from February 2000)
Barrister-at-law
(Former Deputy Privacy Commissioner for Personal Data)
Mr Barry Mortimer, GBS
Non-Permanent Judge, Court of Final Appeal
(Former Vice-President, Court of Appeal)
(Chairman of sub-committee from 1990 till August 1999)
Mr James O'Neil
Deputy Solicitor General (Constitutional), Department of Justice
Mrs Kathy NG Ma Kam-han (from April 2001 to April 2003)
Assistant Director (Elderly), Social Welfare Department
Mr Peter So Lai-yin (till November 2001)
Former General Manager, Hong Kong Note Printing Limited
Professor Raymond Wacks
Emeritus Professor of Law and Legal Theory, The University of Hong Kong (Chairman of sub-committee from August 1999 to December 2001)
Mr Wong Kwok-wah
Editor, Asia Times-On-Line (Chinese version)
2. The secretary of the Sub-committee is Mr Godfrey K F Kan, Senior Government Counsel.
3. The first task of the Privacy Sub-committee was to study the collection, recording, storage and disclosure of personal data. This resulted in the Commission report on Reform of the Law Relating to the Protection of Personal Data published in August 1994. Thereafter, the Sub-committee issued a consultation paper on the regulation of surveillance and the interception of communications. This was followed by the Commission report on Privacy: Regulating the Interception of Communications published in December 1996. In relation to the regulation of surveillance, the Sub-committee decided that the civil aspects of invasion of privacy should be looked into first before it finalised its recommendations on surveillance. The Sub-committee therefore published a consultation paper on Civil Liability for Invasion of Privacy in August 1999. That consultation paper covered the civil aspects of surveillance as well as other forms of invasion of privacy, and was published together with the consultation paper on The Regulation of Media Intrusion. The criminal aspects of surveillance will be dealt with in the Commission report on criminal sanctions for unlawful surveillance to be issued later.
4. The Privacy Sub-committee recommended in the Consultation Paper on Civil Liability for Invasion of Privacy ("the Consultation Paper") that a person should be liable in tort if he, without justification, (a) intrudes upon the solitude or seclusion of another or into his private affairs, or (b) gives publicity to a matter concerning the private life of another. The Sub-committee received 21 submissions on the Consultation Paper. The list of respondents is at the Annex. We are grateful to all those who have contributed to the discussion of this topic. The Sub-committee held ten meetings to finalise the Consultation Paper and another 14 meetings to complete its report to the Law Reform Commission. The Commission considered the Sub-committee report at the end of 2001 and reviewed their conclusions in early 2004 after they had finalised the Privacy and Media Intrusion Report. We express our appreciation to the members of the Sub-committee for the time and effort they have devoted to this project.
5. The Bar Association supported the idea of creating, by statute, one or more specific torts of invasion of privacy which clearly define the act or conduct which unjustifiably frustrates the reasonable expectation of privacy of an individual. The Law Society supported, in principle, the proposal to provide a civil remedy for invasion of privacy by statute. However, The HK section of the International Commission of Jurists (JUSTICE) objected to the creation of privacy torts. They preferred to adopt an incremental approach and wait for judicial development of the common law to protect individual privacy.
6. The Hong Kong Democratic Foundation agreed with the proposal that civil remedies be provided to victims of invasion of privacy. They believed that in formulating the new torts, the right balance between privacy and freedom of expression had been struck. The HK Federation of Women supported the creation, by statute, of one or more specific torts of invasion of privacy so as to provide adequate remedies to victims of invasion of privacy. They emphasised that the statutory provisions must be set out in clear, concrete and precise terms to avoid confusion.
7. The HK and Kowloon Trades Union Council was concerned that video surveillance of the workplace was becoming more widespread. The HK Women Professionals and Entrepreneurs Association welcomed the proposal to regulate workplace surveillance and the use of personal data in advertising materials by way of codes of practice to be issued by the Privacy Commissioner and the Broadcasting Authority. However, the Broadcasting Authority did not believe that there was a need to introduce privacy provisions in its advertising codes.
8. The Department of Health and the Legal Aid Department commented that the right to privacy had to be balanced against freedom of expression. The Hospital Authority supported the proposals of the Sub-committee to the extent that the new torts would be created by statute and would assist and would not impair the Authority in pursuing the objective of providing efficient health care to the public.
9. The Privacy Commissioner for Personal Data agreed that the existing law was insufficient to provide legal redress for infringement of privacy of the types described in the Consultation Paper. He considered it necessary for the law to develop to cope with the needs of society. Security Bureau noted that certain privacy-invasive acts were not regulated by existing law. They commented that there appeared to be a need to create the proposed torts to deal with these acts. The Child Protection Unit of the HK Police Force agreed that the identities of victims of crime should be protected in criminal proceedings.
10. Television Broadcasts Limited commented that the electronic media in Hong Kong was very well regulated by the Codes of Practice issued by the Broadcasting Authority. The HK Journalists Association argued that the Consultation Paper failed to explain that the new torts are aimed at meeting a pressing social need. They did not accept the proposal to create the new torts. They argued that such a move was "a potentially dangerous experiment with harmful repercussions for the media and investigative journalism". Tim Hamlett, Associate Professor of the Department of Journalism at the HK Baptist University, commented that the Sub-committee seemed to have lost contact with the fundamental importance of freedom of expression in a free society. The comments made by The Society of Publishers in Asia were directed at the proposals made by the Sub-committee in the Consultation Paper on Media Intrusion.
11. Paula Scully and Andrew Bruce SC agreed that the identities of victims of crime should be protected by giving the Court a power to issue an anonymity order. Darryl Saw SC commented that the role of law enforcement agencies to investigate both actual and prospective offences could not be inhibited. John Walden submitted that the proposals did not provide either deterrence or redress against the mounting of "unlawful defamatory operations" by the Government against its critics.
12. We shall explain in Chapter 1 the elements and functions of privacy. The jurisprudence on what the right of privacy comprises will also be introduced. Chapter 2 then examines the extent to which privacy is protected at common law and under the Personal Data (Privacy) Ordinance. It will be seen that the protection of privacy under existing laws is patchy and inadequate. Since affording protection to the right of privacy by creating a tort of unwarranted publicity concerning an individual's private life may conflict with the exercise of the right to freedom of expression, we shall examine in Chapter 3 the relationship between these two rights; in particular, whether or not the protection of privacy is inconsistent with the values of free speech. The proper approach to balancing the two rights under the International Covenant on Civil and Political Rights and the European Convention on Human Rights will also be discussed.
13. After we have introduced the law of privacy in other jurisdictions in Chapter 4, we discuss in Chapter 5 whether there is a need to introduce a tort of invasion of privacy in Hong Kong. The discussion includes a debate as to whether such a tort should be created by the judiciary or by statute. After satisfying ourselves that there is a need to create one or more specific torts of invasion of privacy by statute, we recommend in Chapters 6 and 7 that two new torts be created to protect individuals from unreasonable invasion of privacy, namely, unwarranted intrusion upon the solitude or seclusion of another, and unwarranted publicity concerning an individual's private life.
14. The recommendations affecting the privacy of ex-offenders and victims of crime are made in Chapters 8 and 9 respectively. Whether appropriation of a person's name or likeness should be actionable as a privacy tort or a distinct tort is discussed in Chapter 10. Since some jurisdictions treat publicity placing someone in a false light as a privacy tort, we examine in Chapter 11 whether there are compelling arguments for treating such publicity as an invasion of privacy. The need to create a right to correct factual errors reported in the press is also examined in that chapter. The remedies for the two torts proposed in Chapters 6 and 7 are discussed in Chapter 12. We believe that our proposals could provide a civil remedy for "arbitrary or unlawful" interference with an individual's privacy without unduly infringing other legitimate rights and freedoms, in particular, the freedom of speech and of the press.
[1] The Commission's terms of reference are as follows: "To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters: (a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations; (b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong; (c) intrusion (by electronic or other means) into private premises; and (d) the interception of communications, whether oral or recorded; but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence."