Hong Kong Law Reform Commission

Chapter 1 - The right of privacy

• The notion of "privacy"
• Psychological aspects of privacy
• Functions of privacy

The notion of "privacy"

1.1 Right of privacy at common law - Privacy may be defined as "an outcome of a person's wish to withhold from others certain knowledge as to his past and present experience and action and his intentions for the future."[2] Although the right of privacy is not legally enforceable at common law, English judges have acknowledged its importance on occasion. In one case, Lord Denning said: "While freedom of expression is a fundamental human right, so also is the right of privacy."[3] In another case, Lord Scarman described the right to privacy as "fundamental".[4] Lord Keith has also observed that "the right to personal privacy is clearly one which the law [of confidence] should … seek to protect".[5]

1.2 Three concentric circles of privacy - Étienne Picard, a French academic, suggests that privacy may be depicted by three concentric circles, the common centre of which is the subject himself.[6] The first circle comprises what the subject possesses as the most intimate parts of his person, namely his thoughts, his beliefs and his values. The second circle extends from the external characteristics of his person to that of his intimate social life, which involves his family and friends. According to Picard, this is privacy as such which deserves the strictest protection. As for the third circle, it encompasses relationships which are necessary for the subject to lead his private life of the first and second circles. Hence, the exercise of the right to privacy may prompt him to appear in a public place. Nonetheless, privacy in this circle does not disappear. In the view of Picard, elements of private life carried out in public also deserve some protection of privacy. Whereas the second circle should be tightly closed to third parties unless they are admitted to it, information about the third circle should not be divulged to a wider public unless the subject consents.

1.3 An affront to human dignity - In the view of Edward Bloustein, invasion of privacy constitutes an affront to human dignity. He believes that an intrusion on an individual's private life "would destroy individual dignity and integrity and emasculate individual freedom and independence".[7] He says:

"The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual."[8]

1.4 We consider that it is not sufficient to describe invasion of privacy as an affront to human dignity. Tim Frazer points out that although invasions of privacy violate human dignity, an individual's dignity may be offended without his privacy being invaded:

"This approach to privacy, which attempts a single succinct description, does not sufficiently take account of the multifaceted nature of privacy. Though all aspects of privacy may be traced to human dignity, individuality or autonomy, so may the rationale underlying laws covering crimes of violence, sexual offences, marital breakdown, the detention of mental patients, etc. The right ‘to be let alone' is relevant in all these contexts."[9]

1.5 The right to be let alone - Privacy is commonly referred to as the "right to be let alone". This phrase is simple and easy to understand, but Ruth Gavison says that such a simple definition cannot be used in a meaningful way:

"This description gives an appearance of differentiation while covering almost any conceivable complaint anyone could ever make. [Footnote: This is not true of only explicit privacy cases, however. Actions for assault, tort recovery, or challenges to business regulation can all be considered assertions of the ‘right to be let alone'.] A great many instances of ‘not letting people alone' cannot readily be described as invasions of privacy. Requiring that people pay their taxes or go into the army, or punishing them for murder, are just a few of the obvious examples."[10]

1.6 The control an individual has over information about himself - Other philosophers define privacy as the measure of control an individual has over a realm of his private life. According to this view, privacy functions by giving individuals autonomy over certain aspects of their private life. Privacy therefore consists of the individual's control over access to and information about himself.[11] An individual who chooses to disclose certain aspects of his private life does not experience a loss of privacy on the ground that others gain access to him. On the contrary, he experiences privacy by choosing to allow himself or his personal information to go public. If he chooses not to allow others gaining access to himself or his personal information, an intrusion into his private affairs or a disclosure of his personal information would violate his right of privacy.

1.7 Basic states of privacy - Alan Westin, a renowned expert on privacy, stresses that in a free society and subject to the extraordinary exceptions in the interests of society, the choice to decide when and on what terms personal information should be revealed to the general public ought to be left to the individual concerned.[12] He defines privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others":

"Viewed in terms of the relation of the individual to social participation, privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small-group intimacy or, when among larger groups, in a condition of anonymity or reserve."[13]

1.8 Westin therefore suggests that there are four basic states of individual privacy, namely, solitude, intimacy, anonymity and reserve:[14]

(a) Solitude - The individual is separated from the group and freed from the observation of other persons.

(b) Intimacy- The individual is acting as part of a small unit that claims to exercise corporate seclusion so that it may achieve a close and frank relationship between two or more individuals.[15]

(c) Anonymity - This state of privacy occurs when the individual is in public places but still finds freedom from identification and surveillance. Although he knows that he is being observed on the streets, he does not expect to be personally identified and systematically observed by others.

(d) Reserve - This occurs when the individual's need to limit communication about himself is protected by the willing discretion of those who have an interpersonal relationship with him. The creation of "mental distance" between individuals gives the parties a choice to withhold or disclose information.

1.9 Elements of privacy - In the opinion of Ruth Gavison, there is a loss of privacy when others obtain information about an individual, pay attention to him, or gain access to him. She suggests that the concept of privacy is a complex of three elements which are independent of but related to each other.[16]

(a) Secrecy (the extent to which an individual is known) - A person can be said to have lost privacy if he is unable to control the release or use of information about himself which is not available in the public domain. In general, the more people know about the information, the greater the loss of privacy suffered by the individual to whom the information relates.

(b) Anonymity (the extent to which an individual is the subject of attention) - An individual loses privacy when he becomes the subject of attention. Attention alone will cause a loss of privacy even if no new information about him becomes known.[17]

(c) Solitude (the extent to which others have physical access to an individual) - An individual loses privacy when another gains physical access to him; not only because physical access enables another to acquire information about an individual, but also because it diminishes the "spatial aloneness" of an individual.[18]

1.10 Access to a person or information about him - The focus of Gavison is therefore on access to a person or his personal information. She defines privacy as: "The extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others' attention."[19] This approach has been criticised on the ground that if a loss of privacy occurs whenever any information about an individual becomes known, the concept of privacy loses its intuitive meaning. Such a proposition would lead to the result that any loss of solitude by or information about an individual has to be counted as a loss of privacy.[20] Raymond Wacks therefore suggests that a limiting or controlling factor is required. He points out that although focusing attention upon an individual or intruding upon his solitude is objectionable in its own right, our concern for the individual's "privacy" in these circumstances is strongest when he is engaged in activities which we would normally consider "private". He suggests that the protection afforded by the law of privacy should be limited to information "which relate[s] to the individual and which it would be reasonable to expect him to regard as intimate or sensitive and therefore to want to withhold or at least to restrict its collection, use, or circulation."[21] Philosophers who hold this view contend that access to personal information is a necessary but not sufficient condition for it being within the scope of privacy. What is further required is that the information must be of an intimate and sensitive nature, such as information about the sexual proclivities of a person.

1.11 However, there can in theory, perhaps, be an invasion of privacy without any loss of intimate or sensitive information about an individual. A person who peeps into a private dining room which is not occupied by anyone may acquire no information other than the fact that the occupants of the house are not using the dining room at that time. Yet it is a clear case of privacy intrusion. Where an employer secretly opens the personal locker of his employee and discovers that it is empty, all the employer finds out about the employee is that the latter does not use the locker for storage. Nevertheless, no one would dispute that the employer has intruded upon the privacy of the employee. Another example is the persistent following of another on the streets. Most people would agree that it constitutes an interference with private life even though no new information about the victim is acquired as a result. Likewise, listening to a telephone conversation which reveals no intimate or sensitive information about the parties to the conversation is a serious invasion of privacy. These examples illustrate that a loss of intimate or sensitive information is not a necessary condition for invasion of privacy.

1.12 Council of Europe - In 1970, the Parliamentary Assembly of the Council of Europe adopted a resolution containing a Declaration on Mass Communication Media and Human Rights, which states:[22]

"The right to privacy consists essentially in the right to live one's own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications, protection from disclosure of information given or received by the individual confidentially… ."

1.13 In another resolution adopted in 1998, the Assembly stated that the right to privacy under Article 8 of the European Convention on Human Rights should include "the right to control one's own data".[23] It reiterated the view stated in its 1970 Declaration that the right to privacy afforded by the Convention should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.[24]

1.14 European Convention on Human Rights (ECHR) - Article 8(1) of the Convention provides that "everyone has the right to respect for his private and family life, his home and his correspondence." The guarantee afforded by Article 8 is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.[25] The European Court of Human Rights does not consider it possible or necessary to give an exhaustive definition of the notion of "private life", but its decisions suggest that the right to respect for private life covers the following areas:

(a) the right to lead one's life without any external interference;

(b) gender identification and name;

(c) sexual orientation and sexual life;

(d) the physical and moral (or psychological) integrity of the person;

(e) the right to secrecy;

(f) the recording, release and storage of information relating to a person's private life;

(g) the right to identity and personal development; and

(h) the right to establish and develop relationships with other human beings and the outside world.

1.15 The European Court has held that mental health is a crucial part of private life associated with the aspect of moral integrity, and the preservation of mental stability is an indispensable precondition to effective enjoyment of the right to respect for private life.[26] The European Commission of Human Rights observed that:

"For numerous Anglo-Saxon and French authors the right to respect for ‘private life' is the right to privacy, the right to live, as far as one wishes, protected from publicity … . In the opinion of the Commission, however, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one's own personality."[27]

The European Court in Niemietz v Germany elaborated that:[28]

"it would be too restrictive to limit the notion [of private life] to an ‘inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of ‘private life' should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that ... it is not always possible to distinguish clearly which of an individual's activities form part of his professional or business life and which do not."

1.16 As explained by Harris and others, the European Court in that case endorsed a long practice of the European Commission in which it had sought to extend the concept of private life beyond the narrower confines of the Anglo-American idea of privacy, with its emphasis on the secrecy of personal information and seclusion.[29] The Irish Law Reform Commission argues that the case represents a move from a static conception of "privacy" to a more active and rounded conception of a "private life", illustrating that people require more than islands of protected calm in which to choose their own ends but also some personal space in which to pursue those ends and express themselves in common purpose with others.[30] Françoise Tulkens, a judge of the European Court, also agrees that the right "is not only the right to remain in one's home and exclude others; it is also the right to go out of one's home and meet others".[31]

1.17 Nordic Conference on Privacy - In an attempt to provide a workable definition for the term "privacy", the Nordic Conference of Jurists on the Right to Respect for Privacy organised by the International Commission of Jurists (JUSTICE) elaborates on what the right to privacy is about. Paragraphs 2 and 3 of its declaration state:

"2.The right of privacy is the right to be let alone to live one's own life with the minimum degree of interference. In expanded form, this means:

The right of the individual to lead his own life protected against:

(a)interference with his private, family and home life;

(b)interference with his physical or mental integrity or his moral and intellectual freedom;

(c)attacks on his honour and reputation;

(d)being placed in a false light;

(e)the disclosure of irrelevant embarrassing facts relating to his private life;

(f)the use of his name, identity or likeness;

(g)spying, prying, watching and besetting;

(h)interference with his correspondence;

(i)misuse of his private communications, written or oral;

(j)disclosure of information given or received by him in circumstances of professional confidence. ...

3.For practical purposes, the above definition is intended to cover (among other matters) the following:

(i)search of the person;

(ii)entry on and search of premises and other property;

(iii)medical examinations, psychological and physical tests;

(iv)untrue or irrelevant embarrassing statements about a person;

(v)interception of correspondence;

(vi)wire or telephone tapping;

(vii)use of electronic surveillance or other ‘bugging' devices;

(viii)recording, photographing or filming;

(ix)importuning by the Press or by agents of other mass media;

(x)public disclosures of private facts;

(xi)disclosure of information given to, or received from, professional advisers or to public authorities bound to observe secrecy;

(xii)harassing a person (e.g. watching and besetting him or subjecting him to nuisance calls on the telephone)."[32]

1.18 The conference also declared that there was a need for a civil right to guard against intrusion, surreptitious recording, photographs or eavesdropping, and the use of material obtained by unlawful intrusion or which exploits a person's identity, places him in a false light or reveals embarrassing private facts.

1.19 Younger Committee - Instead of giving a general definition of privacy, the Younger Committee on Privacy in the UK identified the principal privacy interests involved, namely:

(a) the "freedom from intrusion upon oneself, one's home, family and relationships"; and

(b) "the right to determine for oneself how and to what extent information about oneself is communicated to others."[33]

1.20 Calcutt Committee - The Calcutt Committee on Privacy and Related Matters in the UK defined privacy as "the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information."[34] It suggested that the right to privacy could include protection from:

(a) physical intrusion;

(b) publication of hurtful or embarrassing personal material (whether true or false);

(c) publication of inaccurate or misleading personal material; and

(d) publication of photographs or recordings of the individual taken without consent.[35]

1.21 United States - William Prosser adopted a descriptive approach. After examining the decisions of the American courts which recognised the existence of a right to privacy, he concluded that the law of privacy "comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ... ‘to be let alone'."[36] He described these four torts as:

(a) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs;

(b) public disclosure of embarrassing private facts about the plaintiff;

(c) publicity which places the plaintiff in a false light in the public eye; and

(d) appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

1.22 Law Reform Commission of Australia - The Commission has identified four categories of privacy interests requiring legal protection, namely:

(a) the interest in controlling entry to the "personal place" ("territorial privacy");

(b) the interest in freedom from interference with one's person and "personal space" ("privacy of the person");

(c) the interest of the person in controlling the information held by others about him ("information privacy"); and

(d) the interest in freedom from surveillance and from interception of one's communications ("communications and surveillance privacy").[37]

Psychological aspects of privacy

1.23 In his article on the psychological aspects of privacy,[38] Sidney Jourard explains that an adult person is taught appropriate ways to behave, depending upon his age, sex, family position, occupation, and social class. Sanctions will be directed against him if he does not conform to extant role-definitions. But continual conformity may result in physical sickness and "mental disease" (meaning the refusal or inability to continue to fulfill roles in the expected ways). If a person conceals his distress and discontent and impersonates a contented, conforming citizen, he may have a "breakdown" or become a socially invalidated mental patient. As society becomes fully urbanised and institutionalised, there are fewer and fewer such private places where a person can simply be rather than be respectable:

"Avoiding observation by others by whom one does not wish to be seen can become a desperate, futile, and costly quest in contemporary society. This state of affairs can make a prison or a dormitory out of one's daily living arrangement, producing the feeling that one has been condemned to his usual roles. This experience is most inimical to personal growth, the maintenance of physical and psychological health, and orderly nonviolent changes in the social structure."[39]

1.24 After pointing out that a person experiences considerable growth in self-understanding and understanding of others in group therapy if the social context is created for risk-free disclosure, Jourard states that society might well provide private places where people can go to practice voluntary, limited disclosure, to engage in meditation or cathartic release, and to divest themselves temporarily of their usual roles in order ultimately to re-enter them refreshed and possibly with creative, socially integrative innovations in the way they fulfill them:

"The experience of psychotherapists and of students of personality growth has shown that people maintain themselves in physical health and in psychological and spiritual well-being when they have a ‘private place', some locus that is inviolable by others except at the person's express invitation. This ‘private place' may be a physical location, such as a room, a cabin, a ‘pad,' or a monastic cell. It may be a place for solitude, or it may be an ambience peopled by individuals who share the values and ideals held by the person in question. There, he can do or be as he likes and feels. He can utter, express, and act in ways that disclose his being-for-himself, and he does not need to fear external sanctions. Nor does he feel guilt for the discrepancy between the way he appears in public and the way he is in private."[40]

1.25 Jourard concludes that without privacy and its concomitant, freedom, the cost to be paid for the ends achieved - in terms of lost health, weak commitment to the society, and social stagnation - may be too great.

Functions of privacy

1.26 According to Alan Westin, privacy serves the following functions for individuals and groups in democratic nations:[41]

(a) Personal autonomy - Privacy satisfies the human desire to avoid being manipulated or dominated by others. An invasion of privacy threatens this personal autonomy. By penetrating into an individual's "inner zone" and learning about his secrets, the intruder could expose that individual to ridicule and shame and exert domination over him. Furthermore, every individual lives behind a mask. The consequence can be serious if the mask is torn off. In extreme cases, the individual would commit suicide or experience nervous breakdown.

Achieving personal autonomy is also essential to the development and maintenance of individuality. It would relieve the pressure to live up to the expectations of others. Giving protection to individual privacy would facilitate sheltered experimentation and testing of ideas without fear of ridicule or penalty, and would provide an opportunity to alter opinions before they are made public.[42]

(b) Emotional release - There are at least five aspects of emotional release through privacy:[43]

l Every individual plays a series of roles in daily life. This could generate tensions for many. Besides, individuals can sustain conflicting roles for reasonable periods of time only. To maintain physical and psychological health, there have to be periods of privacy which give individuals "a chance to lay their masks for rest. To be always ‘on' would destroy the human organism."

l Privacy also allows individuals to deviate temporarily from social etiquette when alone or among friends and acquaintances, as by swearing or putting feet on the desk.

l Privacy serves the "safety-valve" function by allowing individuals to vent their anger at those who exercise authority over them without fear of reprisal. In the absence of such release, people would experience serious emotional pressure.

l Privacy is essential for bodily functions and sexual relations.

l Individuals in sorrow, such as victims of crime or accidents, require privacy to recover. Those who are in public life who have suffered defeats or loss of face also need to retire from public view to recuperate.

(c) Self-evaluation - Individuals need privacy to evaluate the data that they receive for various purposes and to integrate them into meaningful information. Reflective solitude and even day-dreaming during moments of reserve are conducive to creative ideas.[44]

(d) Limited and protected communication - Privacy provides individuals with the opportunities to share confidences with their intimates and other professional advisers such as doctors, lawyers and ministers.[45]

1.27 Ruth Gavison has also given a detailed exposition of the positive functions that privacy has in our lives. She says that privacy is central to the attainment of individual goals such as autonomy, creativity, growth and mental health. By limiting access to individuals we could create an environment which facilitates the development of a liberal and pluralistic society. Individuals would be able to relax and develop intimate relations. Restricting access also protects individuals from distraction. Freedom from distraction is essential for activities that require concentration, such as learning, writing, and all forms of creativity. Even casual observation has an inhibitive effect on individuals that makes them more formal and uneasy.[46]

1.28 Gavison further points out that privacy enables individuals to deliberate and establish opinions without fear of any unpleasant or hostile reaction from others. It enables individuals to continue relationships without denying one's inner thoughts that the other party does not approve. Privacy therefore enhances the capacity of individuals to create and maintain human relations. Exposing an individual to the public eye would subject him to pressure to conform to society's expectation. This would lead to inhibition, repression and even mental illness in serious cases.[47]

1.29 Apart from serving the individual interest in the attainment of individual goals, privacy also serves the public interest in the development of democracy. Privacy is essential to democratic government, not only because it contributes to the autonomy of the citizen, but also because it promotes liberty of political action:

"This liberty requires privacy, for individuals must have the right to keep private their votes, their political discussions, and their associations if they are to be able to exercise their liberty to the fullest extent. Privacy is crucial to democracy in providing the opportunity for parties to work out their political positions, and to compromise with opposing factions, before subjecting their positions to public scrutiny. Denying the privacy necessary for these interactions would undermine the democratic process."[48]

1.30 Although, at present, the Chief Executive is not directly elected and only a part of the Legislative Council of Hong Kong is directly elected, the Basic Law has promised that the ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with the democratic procedures[49] and the election of all members of the Legislative Council by universal suffrage.[50] Since privacy encourages public participation in political decisions by enabling citizens to form judgments and express preferences on social issues, affording adequate protection to privacy will provide a congenial environment for Hong Kong to move towards greater democracy. Furthermore, to the extent that public service means loss of expectation of privacy, a society which respects and protects privacy would reduce the costs of running for public office. Privacy therefore helps society attract talented individuals to serve the community.[51]