Hong Kong Law Reform Commission

Chapter 5 - Providing civil remedies to victims of unwarranted invasion of privacy

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

Need for civil protection against invasion of privacy

5.1 Privacy is an important value which should be protected by law as a right in itself and not merely incidentally to the protection of other rights. It is a fundamental human right recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and many other international and regional treaties. Nearly every country in the world recognises privacy as a fundamental human right in their constitution, either explicitly or implicitly.[350]

5.2 International Covenant on Civil and Political Rights - The ICCPR imposes on the Hong Kong SAR Government a positive duty to protect the right of privacy under Article 17, which provides, inter alia, that no one shall be subjected to "arbitrary or unlawful interference with his privacy, family, home or correspondence", and that everyone has the right to the protection of the law against such interference. This obligation is derived from the undertakings in Article 2 of the Covenant, including the undertaking "to respect and to ensure" to all individuals within Hong Kong the rights recognised in the Covenant; where not already provided for by existing legislative or other measures, "to take the necessary steps … to adopt such legislative or other measures as may be necessary to give effect to the rights"; and to ensure that any person whose rights or freedoms are violated shall have "an effective remedy".

5.3 Hence, Article 17 necessitates the adoption of legislative or other measures to give effect to the prohibition against interference with the right to privacy as well as to the protection of that right. The obligation of the Government is to protect every person against all arbitrary or unlawful interferences whether they emanate from Government authorities or from natural or legal persons.[351] The "protection of the law" in paragraph 2 of the Article calls for measures in the area of private and administrative law as well as prohibitive norms under criminal law.[352]

5.4 The right of privacy under Article 17 is qualified and not absolute. It is protected only to the extent that the interference is either unlawful or arbitrary. The UN Human Rights Committee has stated that the term "unlawful" means that no interference can take place except on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant. As regards the expression "arbitrary interference", it can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.[353] The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.[354]

5.5 Council of Europe - By virtue of a resolution passed in 1998, the Parliamentary Assembly of the Council of Europe calls upon the governments of the member states to pass legislation containing the following guidelines, if such legislation not yet exists:[355]

"i.the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;

ii.editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;

iii.when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned;

iv.economic penalties should be envisaged for publishing groups which systematically invade people's privacy;

v.following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited;

vi.a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used ‘visual or auditory enhancement devices' to capture recordings that they otherwise could not have captured without trespassing;

vii.provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy; … ."

5.6 The Basic Law of the Hong Kong SAR - The provisions of the ICCPR have acquired a constitutional status in Hong Kong by virtue of Article 39 of the Basic Law. That Article imposes an obligation on the Hong Kong SAR Government to implement the provisions of the Covenant through its laws. This would necessitate the enactment of laws to give effect to the right to privacy guaranteed by the ICCPR. Since China has undertaken the responsibility to report on the measures Hong Kong has adopted to give effect to the rights recognised in the Covenant, the implementation of the Covenant will continue to be subjected to international scrutiny. Failure to implement Article 17 through the laws of Hong Kong would not only be contrary to the Basic Law, but would also be criticised by the UN Human Rights Committee when it considers the report submitted by China. The Hong Kong Bill of Rights Ordinance (Cap 383) creates a general right of privacy but infringements by private persons are not actionable under that Ordinance. Creating a tort of invasion of privacy would therefore fulfil the Hong Kong SAR Government's obligations under the ICCPR and the Basic Law.

5.7 Absence of protection against interference by private parties - Under Article 17 of the ICCPR, the Government is under an obligation to adopt measures to give effect to the prohibition against interference with one's privacy by private persons as well as by the Government or public authorities. Although the Hong Kong Bill of Rights Ordinance enables an individual to bring an action for breach of the right to privacy under Article 14 of the HK Bill of Rights, these actions can only be brought against the Government and public authorities but not against private persons.[356] What is lacking is a right of action for breach of privacy against private persons. If the legislature has seen fit to provide a statutory remedy enabling private citizens to sue public authorities for breach of privacy, without providing a definition of privacy, there is no reason why a more specific tort of invasion of privacy should not be created which is actionable against private persons as well as public authorities. Denying citizens legal protection against invasion of privacy by private persons on the ground that privacy cannot be defined, or that the result is uncertain, appears indefensible. If the courts can be trusted to perform a balancing exercise in resolving privacy claims against public authorities under the HK Bill of Rights Ordinance, they should also be trusted to perform the same exercise in resolving privacy claims against private persons based on a statutory tort of invasion of privacy.

5.8 The floodgate argument - When the Government introduced the draft Bill of Rights into the Legislative Council in 1990, there was concern that the guarantee of the right to privacy provided in Article 14 of the Bill would create a new cause of action against private bodies which went well beyond the protection of privacy under existing Hong Kong law. This led to fears that the courts would be overwhelmed by a flood of litigation instituted by private bodies. However, the right of personality in Germany has not created an excessive caseload for the courts. For example, between 1980 and 2000, there were only some 223 privacy-related judgments by the German Courts of Appeal and the Federal Supreme Court.[357] Privacy claims under the Canadian Privacy Acts are also rare. After referring to the experiences in Germany and Canada, Craig and Nolte conclude that it seems rather "fanciful" to suggest that great numbers of claims will overwhelm the courts, tax the legal resources of newspapers, and place a chill on freedom of the press if the right of privacy is enforceable in the courts.[358] As far as we are aware, there is no evidence that a right of action for invasion of privacy has led to unwarranted claims or blackmailing actions in jurisdictions that protect privacy by law.

5.9 Privacy as a value deserving legal protection - Quite apart from the constitutional requirements and the international obligations undertaken by Hong Kong in respect of the right to privacy, and notwithstanding any doubts about its definition, there are strong arguments why privacy ought to receive the protection of the law. We have seen in Chapter 1 that privacy serves many important functions in society. An explicit commitment to privacy as a legal concept would modify people's behaviour and encourage them to respect and be more sensitive to each other's privacy needs. Imposing liability for invasion of privacy would have a deterrent effect which would make potential intruders think twice before they act. We acknowledge that it is difficult to define the parameters of the right of privacy in precise terms, but this does not preclude us from examining whether an infringement of the privacy interests embodied in the right of privacy should be made a tort. After all, the ICCPR, the HK Bill of Rights and the European Convention on Human Rights recognise the right of privacy in general terms.

5.10 Privacy as a legal concept - It has also been argued that the right of privacy is too elusive a concept to support a workable and enforceable definition. However, uncertainties in the law are not unusual. To decline to reform the law because of the difficulty in defining the wrong is "a doctrine of despair" which could be applied to any proposed legal reform. With regard to the argument that the law, if enacted, would be uncertain because of the difficulty of deciding in borderline cases whether the defendant's conduct amounted to an unwarranted invasion of privacy or not, Lord Bingham CJ has this to say:

"There are two answers to this objection. The first is that very many cases decided in the courts do involve the drawing of lines in difficult borderline cases. That is the job which judges are employed to do. If they draw the line in the wrong place, they are subject to review in the higher courts, and ultimately to the will of Parliament. In this as in other fields, a body of case law would build up over time which would give considerable guidance as to where the line lay. The second answer is that this objection has nothing at all to do with the legitimate complaints of those whose private affairs are of no significance to the general public at all. Even if the public's right to know were given the most ample recognition, … there would remain a residue of cases in which it could not plausibly be argued that the public had a right to know."[359]

5.11 We consider it inappropriate to deny relief in egregious cases merely because certain borderline claims pose difficulties in the balancing process.[360] Many common law and civil law jurisdictions provide civil remedies for infringement of privacy. The lack of an exhaustive definition of privacy has not been a bar to its legal protection in these jurisdictions. Although the concept of privacy is elusive, there is a growing consensus as to what kind of acts or conduct would constitute an infringement of privacy. Insofar as the object is to provide relief for invasion of privacy, the statute may aim at defining what act or conduct would constitute an unwarranted invasion of privacy, rather than defining the substance of the right of privacy the breach of which would entitle the victim to seek redress.

5.12 Personal Data (Privacy) Ordinance - We are aware that the provisions of the PD(P)O provide some protection against invasion of privacy. However, the availability of remedies under the Ordinance does not of itself preclude us from considering whether it is desirable to introduce a new right of action to protect privacy. Overlap between different causes of action is not uncommon. The introduction of a new tort should not be ruled out on this ground. Moreover, it is clear from the discussion in Chapter 2 that the protection under the PD(P)O is not comprehensive enough to protect individuals from all types of unwarranted invasion of privacy. The primary concern of the Ordinance is information privacy. It is not designed to safeguard communications and surveillance privacy, territorial privacy, and privacy of the person. Even in the field of information privacy, the Collection Limitation Principle, the Use Limitation Principle and the Security Safeguards Principle in the PD(P)O have been ineffective in protecting individuals from unwarranted surveillance and publicity.

5.13 Broadcasting Authority and the HK Press Council - We are aware that the Hong Kong Press Council affords certain protection against press intrusion. However, as pointed out in our Privacy and Media Intrusion Report, the protection afforded by the Press Council is less than adequate. Although the Press Council provides victims of press intrusion an opportunity to assert and vindicate their rights against certain newspapers, it is not intended to provide any legal remedies.[361] Any extra-legal remedies provided by the Council can only be ex post facto in nature.[362] Given the voluntary nature of the Press Council, its decisions are not subject to judicial review. As regards the Broadcasting Authority, although it may warn or impose a fine on a licensed broadcaster, it does not have power to make pecuniary compensation and to prevent broadcasts that would constitute a breach of the Authority's Code of Practice.

5.14 In Peck v UK,[363] a local authority disclosed CCTV footage filmed in a public street, resulting in the publication and broadcasting of identifiable images of the applicant. The European Court of Human Rights held that the disclosure constituted an unjustified interference with the applicant's private life and a violation of Article 8 of the ECHR. The UK Government pointed out that the applicant had been able to assert and vindicate his claims before the Broadcasting Standards Commission, the Independent Television Commission and the Press Complaints Commission. However, the European Court found that the lack of legal power of these commissions to award damages to the applicant meant that they could not provide an effective remedy to him in relation to the violation of his right to privacy under Article 8. The Court considered that the Independent Television Commission's power to fine the relevant television company did not amount to an award of damages to the applicant. Furthermore, while the applicant was aware that the local authority had disclosed the footage to the media prior to the publication and broadcasting, neither the Broadcasting Standards Commission nor the Press Complaints Commission had the power to prevent those publications or broadcasts. The Court did not accept the Government's argument that the finding of a violation would constitute sufficient satisfaction in itself.[364]

5.15 In any event, our concern is to protect individuals from unwarranted intrusion into privacy whether the intrusion originates from the media or not. Even if the proposals in our Privacy and Media Intrusion Report in relation to the creation of a press privacy complaints commission were implemented in full, in the absence of a tort of breach of privacy, a victim of unwarranted intrusion would not have an effective remedy if the intrusion was effected by a private person who was not a member of the press.

5.16 Incidence of privacy invasion - It has been argued that complaints about invasions of privacy in Hong Kong are not substantial and that reforming the law of privacy is an excessive response to a minor problem in society. Although it may be true that such complaints are rare, it does not indicate that invasion of privacy is not prevalent in Hong Kong. Such rarity may be explained by the very fact that invasion of privacy is not actionable under existing law. Moreover, many invasions of privacy are difficult to uncover. Whereas the victim often knows when he is assaulted or his property is stolen or damaged, it is unlikely that a person would notice that he is being recorded or monitored by a surveillance device. Nonetheless, we have collected in our Privacy and Media Intrusion Report many local cases which present a prima facie case of unwarranted invasion of privacy.[365] Yet even if it is true that invasion of privacy is not prevalent in Hong Kong, it would be unreasonable and unjust to deny privacy victims a civil remedy purely on this ground. The need to introduce civil measures to protect individuals from invasion of privacy derives from the right to privacy under Article 17 of the ICCPR in conjunction with Article 39 of the Basic Law; it does not hinge on the incidence of privacy invasions in Hong Kong.

5.17 Effect on freedom of expression - It has been argued that creating a tort of breach of privacy would unduly restrict freedom of expression. However, we have already explained in Chapter 3 that privacy and freedom of speech are complementary in nature. In jurisdictions where unwanted publicity is actionable in tort, the legislation or common law invariably recognises the importance of press freedom by requiring that the plaintiff's privacy interests should be balanced against the defendant's right to freedom of expression, or by providing for a defence of publication in the public interest. The provision of such a defence would ensure that investigative journalism would not be hampered by a privacy action. We are not aware of any evidence that free expression has been unduly restricted in jurisdictions which recognise a tort action for breach of privacy.

5.18 Conclusion - We consider that the protection of privacy is in the interests of both the individual and society. It is in the public interest to protect the interests of individuals against mental suffering and injury to their emotions. To treat privacy as purely an individual interest and to pit it against other public interests is misguided. Privacy should be afforded the same level of protection as other fundamental human rights as long as the law gives sufficient recognition to the legitimate interest of the press. Insofar as privacy is a fundamental social value which underpins other fundamental rights and freedoms, a civilised and liberal society like Hong Kong which is moving toward greater democracy should respect and protect an individual's private life. We therefore conclude that individuals should have a civil remedy for invasion of privacy that is unwarranted in the circumstances.

Judicial development or legislation?

5.19 The Hong Kong section of JUSTICE commented that the Sub-committee had discounted the option of leaving Hong Kong courts to develop the common law to provide for better protection of privacy on the basis of traditional torts. They considered that the Sub-committee had been "too dismissive" of the role that the courts could play in the development of the law of privacy, pointing out that the courts in Canada, Ireland and New Zealand had been able to develop the common law to provide for better protection of privacy not only on the basis of traditional torts but also in the light of constitutional guarantees of fundamental human rights. They commented that the Sub-committee had under-estimated the ability of the Hong Kong courts to appreciate the fact that Hong Kong is a separate jurisdiction and to learn from comparative jurisprudence for the purpose of developing the common law of Hong Kong. They therefore concluded that it was preferable to leave the Hong Kong courts to develop the law of privacy incrementally on a case-by-case basis. Nevertheless, they acknowledged that the introduction of statutory torts would accord protection to those whose right to privacy has been violated and serve to inform the public of their rights and liabilities.[366]

5.20 We agree that traditional torts such as trespass, nuisance and breach of confidence could be developed by the courts to afford better protection to individual privacy. The developments in South Africa and the US show that the common law is capable of developing an enforceable right of privacy. There are also signs that the action for breach of confidence may be developed to afford protection to certain aspects of individual privacy. However, even though the remedy for breach of confidence could provide relief for invasion of privacy in circumstances where it is unconscionable for the defendant to disclose the information received by him, it would only afford protection against unwarranted disclosure or publicity, but not unwarranted collection of information by means such as the taking of photographs and the surreptitious use of surveillance devices. In any event, it would take a long time for the courts to establish the elements of the cause of action; the basis of liability; and the nature and scope of the defences. The legal costs involved in developing a common law tort of invasion of privacy would inhibit many victims from seeking legal remedies.[367] As stated in Chapter 4, several provinces in Canada have legislated to create a tort of invasion of privacy in order to correct the failure of the common law to develop a remedy for invasion of privacy. More recently, the Irish Law Reform Commission has recommended that two privacy torts be created by statute. Although the courts in South Africa, India and the US have been able to develop the common law to protect privacy, the House of Lords in Wainwright v Home Office[368] has unanimously decided that there was no common law tort of invasion of privacy in England and Wales.

5.21 Under existing laws, the practical difficulties faced by victims of invasion of privacy appear to be insurmountable. In Malone v Metropolitan Police Commissioner, Sir Robert Megarry V-C said: "I can find nothing in the authorities or contentions that have been put before me to support the plaintiff's claim based on the right of privacy."[369] The English Court of Appeal in Kaye v Robertson also held that there was no right of action for breach of a person's privacy. Glidewell LJ remarked that the facts of that case were a "graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provisions can be made to protect the privacy of individuals."[370] More recently, Lord Woolf CJ in Home Office v Wainwright said that "the existence of [a right to privacy] at common law has never been clearly established".[371]

5.22 In the Malone case, Sir Robert Megarry V-C said:

"I am not unduly troubled by the absence of English authority: there has to be a first time for everything, and if the principles of English law, and not least analogies from the existing rules, together with the requirements of justice and common sense, pointed firmly to such a right existing, then I think the court should not be deterred from recognising the right. On the other hand, it is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another. At times judges must, and do, legislate; but as Holmes J once said, they do so only interstitially, and with molecular rather than molar motions ... . Anything beyond that must be left for legislation. No new right in the law, fully-fledged with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only Parliament can create such a right. … Where there is some major gap in the law, no doubt a judge would be capable of framing what he considered to be a proper code to fill it; and sometimes he may be tempted. But he has to remember that his function is judicial, not legislative, and that he ought not to use his office to legislate in the guise of exercising his judicial powers."[372]

"It seems to me that where Parliament has abstained from legislating on a point that is plainly suitable for legislation, it is indeed difficult for the court to lay down new rules of common law or equity that will carry out the Crown's treaty obligations, or to discover for the first time that such rules have always existed."[373]

5.23 It is significant that Sir Robert's treatment of the subject in the Malone case received the endorsement of the House of Lords in Wainwright v Home Office.[374] In the address to the International Press Institute, Sir Nicholas Browne-Wilkinson V-C stated:[375]

"The legal difficulties of defining what is privacy and what are the proper defences are too elaborate. The courts, I would have to say, are quite good at some things, but they are not famed for their delicacy of touch, and when you have matters which are a very complicated balancing of imponderables, where the essence of the matter is flexibility, not certainty, I believe, the courts may not be the ideal body to administer it."

5.24 Lord Bingham, then the Lord Chief Justice of England and Wales, also preferred legislation:

"In deciding the cases coming before them, the courts have of course done their best to reflect the values of society, but they have been hampered by the absence of any standard to which reference can be made when choosing, as is often necessary, between competing values."[376]

"Should there be law to protect rights of personal privacy? To a very large extent the law already does protect personal privacy; but to the extent that it does not, it should. … My preference would be for legislation, which would mean that the rules which the courts applied would then carry the imprimatur of democratic approval."[377]

5.25 The difficulty of formulating the proper ambit and balance of the tort was also noted by Buxton LJ in Home Office v Wainwright:

"I have no doubt that in being invited to recognise the existence of a tort of breach of privacy we are indeed being invited to make the law, and not merely to apply it. Diffidence in the face of such an invitation is not, in my view, an abdication of our responsibility, but rather a recognition that, in areas involving extremely contested and strongly conflicting social interests, the judges are extremely ill-equipped to undertake the detailed investigations necessary before the proper shape of the law can be decided. It is only by inquiry outside the narrow boundaries of a particular case that the proper ambit of such a tort can be determined. The interests of democracy demand that such inquiry should be conducted in order to inform, and the appropriate conclusions should be drawn from the inquiry by, Parliament and not the courts. It is thus for Parliament to remove, if it thinks fit, the barrier to the recognition of a tort of breach of privacy that is at present erected by Kaye v Robertson and Khorasandjian v Bush."[378]

5.26 The most recent case to pronounce on this issue is Douglas v Hello! Ltd, in which Lindsay J stated:

"So broad is the subject of privacy and such are the ramifications of any free-standing law in the area that the subject is better left to Parliament which can, of course, consult interests far more widely than can be taken into account in the course of ordinary inter partes litigation. A judge should therefore be chary of doing that which is better done by Parliament. That Parliament has failed so far to grasp the nettle does not prove that it will not have to be grasped in the future. The recent judgment in Peck v United Kingdom in the ECHR, given on the 28th January 2003, shows that in circumstances where the law of confidence did not operate our domestic law has already been held to be inadequate. That inadequacy will have to be made good and if Parliament does not step in then the Courts will be obliged to. Further development by the Courts may merely be awaiting the first post-Human Rights Act case where neither the law of confidence nor any other domestic law protects an individual who deserves protection. A glance at a crystal ball of, so to speak, only a low wattage suggests that if Parliament does not act soon the less satisfactory course, of the Courts creating the law bit by bit at the expense of litigants and with inevitable delays and uncertainty, will be thrust upon the judiciary. But that will only happen when a case arises in which the existing law of confidence gives no or inadequate protection; … ."[379]

5.27 The UK House of Commons Culture, Media and Sport Committee recommended in 2003 that the Government should reconsider its position and bring forward legislative proposals to clarify the protection that individuals could expect from unwarranted intrusion into their private lives. The Committee noted that this was necessary fully to satisfy the obligations upon the UK under the ECHR.[380] We may add that Lord Phillips has also expressed the view that it is usually easier to apply a statute than to apply principles of common law.[381]

5.28 Contrary to the position adopted by the Hong Kong section of JUSTICE, the British section of JUSTICE is of the view that legislation is the only practicable answer:

"It is true that the essence of every invasion of privacy of this particular class is the obtaining or use by one person of confidential information (in the widest sense) relating to another, and there is a fairly highly developed law of ‘confidential information' to be found in our law reports. But, almost without exception, this has been developed in cases where the subject-matter has been a trade secret; it would take many cases dealing with ‘private' confidential information before this aspect of the matter could achieve an equally high degree of development. And, until there is a developed law, only the boldest of lawyers will advise and the boldest or richest of plaintiffs will launch a civil action which may cost many thousands and take many years before the House of Lords finally decides that the plaintiff's case lay (for him) just the wrong side of the line. … [I]n the absence of a large class of rich private plaintiffs who feel strongly enough about their privacy - or a large class of very poor such plaintiffs, combined with abundant legal aid and enough bold lawyers - it seems likely that very many years would be required to bring the law of privacy in England to the point which it has reached in the U.S.A. today. And that, in our view, would be far too late."[382]

5.29 McGechan J, a New Zealand High Court judge, held a similar view. Referring to the actions brought in Tucker v News Media Ownership Ltd,[383] he pointed out that the courts were being forced into a position where they had to create new law as they saw appropriate. But this process, which will be "painful and expensive" to the litigants involved, might not be thought the ideal approach. He therefore considered that legislative action on some comprehensive basis determining the extent of the privacy right and the relationship of that right to freedom of speech had to be introduced "with urgency".[384]

5.30 The HK Journalists Association cautioned that the Law Reform Commission should avoid the temptation of seeing legislation as the solution to all problems. We should emphasise that neither the Consultation Paper nor this report asserts that legislation is the solution to all problems arising from unwarranted infringement of privacy. We agree that legislation should be introduced as a last resort. But if judicial development of the law of privacy at common law is not forthcoming or is far from satisfactory, then legal protection of individual privacy has to be founded on statutory provisions.

5.31 The HK Journalists Association also argued that the existing Legislative Council, in which members elected through direct election were in a minority, should not enact legislation affecting such a fundamental right as freedom of expression. Until the legislature is "properly elected", members who are not accountable to the general public can "twist even a well-meaning bill into an ordinance that is harmful". In this connection, we note that the Legislative Council must function within the parameters of the Basic Law and the ICCPR. Apart from guaranteeing freedom of speech and of the press, Article 39 of the Basic Law provides that any restrictions on the rights and freedoms enjoyed by Hong Kong residents must not contravene the ICCPR. Irrespective of whether it is elected by universal suffrage, the Legislative Council may not pass any legislation that contravenes the Basic Law or the ICCPR. Any legislative proposals restricting the right to freedom of speech and of the press that appear to be incompatible with the Basic Law or the Covenant would be subject to the most careful scrutiny by the legislature, the judiciary, the media and the electorate. And any provisions found to be in contravention of the Basic Law would ultimately be held by the Court to be of no legal effect.

5.32 By virtue of Article 2(3) of the ICCPR, the Hong Kong SAR Government is under an obligation to ensure that:

(a) any person whose rights or freedoms recognised in the Covenant are violated must have an effective remedy;

(b) any person claiming such a remedy must have his right thereto determined by "competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy"; and

(c) the competent authorities must enforce such remedies when granted.

5.33 The so-called "democratic deficit" arguments should not be used as an excuse for not providing legal protection to Hong Kong people against unlawful or arbitrary interference with their privacy by private persons. Accepting these arguments would deprive victims of unwarranted privacy invasion of their right to legal protection under Article 17 of the ICCPR, and would enable the Government to derogate from its obligation under Article 39 of the Basic Law as well as Article 17 of the Covenant, to the extent that the unlawful or arbitrary interference originates from a private person - until such time as all members of the Legislative Council are elected by universal suffrage.

5.34 In our view, the right of Hong Kong people to legal protection from arbitrary or unlawful interference with their privacy by private persons under Article 17 is not contingent on full realisation of Article 25(b) of the Covenant, which guarantees the right to vote and be elected at genuine periodic elections by universal and equal suffrage. There are no provisions in the Covenant entitling the Government to derogate from its obligations in relation to the right to privacy under Article 17 on the ground that Article 25(b) has not yet been fully implemented. Indeed, pursuant to a reservation made upon ratification of the Covenant in 1976, Article 25(b) need not be applied to Hong Kong "in so far as it may require the establishment of an elected Executive or Legislative Council in Hong Kong."[385] It could not have been in contemplation that the right to privacy in Hong Kong under Article 17 would also therefore be elided.

5.35 There are few signs that the courts in Hong Kong would be likely to develop a tort of invasion of privacy when presented with a privacy case that does not give rise to a cause of action under the law of torts. It is possible that the courts would accept the argument that a general tort of invasion of privacy is too vague or imprecise to be acceptable, or that a more specific tort of invasion of privacy covering a specific privacy interest is too complicated to be developed by them. It is also possible that they would decide that an invasion of privacy should not give rise to any legal remedy at common law. It is true that there are English decisions suggesting that the action for breach of confidence can be developed to protect certain privacy interests, but there is no reason why the law should protect privacy only when the facts of the case can be brought within the scope of the law of confidence. Besides, there can be an invasion of privacy without disclosure of confidential personal information.

5.36 Development of the law of privacy by the courts is uncertain both as to timing and as to content. It will take a long time, particularly for a small jurisdiction like Hong Kong. Even if the lower courts were willing to recognise a tort of invasion of privacy, the tort's status and its precise scope would not be resolved definitively until considered by the Court of Final Appeal. Until then, the development would tend to be piecemeal and may not be logical. It would also be unfair to the injured parties if they have to incur extensive legal costs to assert what most would regard as a fundamental human right. We acknowledge that Hong Kong courts are capable of developing the common law by making reference to the case-law in other jurisdictions. However, legislation can save the Court starting from scratch. It can also reassure the public of an effective remedy where there has been an unwarranted invasion of privacy, while the Court would have the benefit of clear guidelines as to how the right of privacy should be balanced against the right to freedom of expression and other competing interests.

5.37 Further, the very generality of the right of privacy under Article 14 of the HK Bill of Rights is itself an argument for legislation. By reason of the abstract generality of this right, legal protection against government intrusion is uncertain and, hence, less than satisfactory. The vagueness in Article 14 of the Bill of Rights is not in the interests of those whose privacy is unjustifiably invaded by public authorities, nor is it in the interests of public authorities which, for various legitimate reasons, engage in privacy-invasive acts or activities that may be held in breach of Article 14. The legislature should clarify the law by creating one or more specific torts of invasion of privacy, indicating what the privacy concerns are and how they should be reconciled with the competing claims.

5.38 The principles for determining the types of actionable infringements of privacy and the scope of exceptions and defences are matters that should be debated and decided by the legislature. Whereas the common law is developed on the basis of arguments put forward by the litigants in the case before the court, the legislative process enables a comprehensive framework for the resolution of privacy claims to be formulated after hearing a wide range of arguments from all interested parties, including the Privacy Commissioner, the media, the news associations and other NGOs. The experience in jurisdictions with a law of privacy shows that any difficulties of definition present no more than a minor obstacle to legislation.

5.39 When the draft HK Bill of Rights was made public, there were arguments that detailed privacy legislation was desirable but that, as the HK Law Reform Commission was looking into privacy, it was appropriate to defer the application of Article 14 to the private sector pending the enactment of detailed privacy legislation. The Government was persuaded by these arguments.[386] It would therefore be unfortunate if legal protection of privacy is not extended to infringements by private persons when the Law Reform Commission finally works out the ingredients of a privacy tort.

5.40 There does not appear to be any strong argument in favour of giving an individual a right of action for invasion of privacy if the invasion originated from public authorities but not if it originated from a private person. The UN Human Rights Committee has expressly stated that the obligation of a State Party under Article 17 of the ICCPR extends to preventing infringements by private persons.[387] By creating one or more specific torts of invasion of privacy, the legislature could, at one stroke, give substance to the right of privacy under Article 14 of the HK Bill of Rights, and extend the right to legal protection of privacy under Article 17 of the ICCPR to infringements by private persons.

5.41 In the light of these arguments, we conclude that a tort of invasion of privacy (which is enforceable against private persons as well as public authorities) should be created by statute. Legislation is necessary because judicial development is not occurring. Even if the judiciary is willing to develop the common law, the process would be lengthy and costly and the outcome uncertain. By providing a statutory remedy for invasion of privacy, the legislation could remove the uncertainty and fill a gap in the common law which is unlikely to be filled without the intervention of the legislature.

Legislative approach to the creation of a tort of invasion of privacy

5.42 There are at least four approaches to the legislation of a tort of invasion of privacy. The first approach is to make the minimum adjustments to the existing common law causes of action necessary to extend their effect to the main types of privacy invasion which are at present not covered. The British section of JUSTICE rejected this approach as being somewhat artificial. It would mean that "well-established and well-defined common law causes of action well adapted to their traditional roles would have to be extended, modified and even distorted to deal with situations of quite a different type."[388]

5.43 The second approach is to create a general right of privacy which is applicable to all types of privacy invasions and defined in general terms to allow flexibility in a changing society. Mummery LJ said:

"I foresee serious definitional difficulties and conceptual problems in the judicial development of a ‘blockbuster' tort vaguely embracing such a potentially wide range of situations. I am not even sure that anybody - the public, Parliament, the press - really wants the creation of a new tort, which could give rise to as many problems as it is sought to solve. A more promising and well trod path is that of incremental evolution, both at common law and by statute (eg section 3 of the Protection from Harassment Act 1997), of traditional nominate torts pragmatically crafted as to conditions of liability, specific defences and appropriate remedies, and tailored to suit significantly different privacy interests and infringement situations."[389]

5.44 We consider that a tort of invasion of privacy defined in general terms would introduce an element of uncertainty into the law. It would give insufficient guidance to the public and the Court. Before there were sufficient cases to enable the principles and ingredients of the new tort to be deduced, there would be considerable uncertainty as to the scope of the right of action, the types of infringements covered, and the types of defences applicable. Leaving these matters in doubt would deprive an aggrieved individual of an effective remedy.

5.45 The third approach is to give a wide definition of the right to privacy followed by examples of infringements. The four Canadian provinces which enacted a Privacy Act adopt this approach. Although none of the privacy statutes contains a definition of right of privacy, all of them give examples of violation of privacy. The Uniform Law Conference of Canada follows this approach in drafting the Uniform Privacy Act.[390] The UK Consultation Paper commented that the Canadian legislation had the advantage of flexibility and it would still be applicable when society's attitude to aspects of privacy changed, but it criticised this approach as not sufficiently precise and as likely to lead to uncertainty. It preferred a tighter definition which concentrated on the core of privacy and minimised the need to plead defences.[391]

5.46 The fourth approach is to treat the matter piecemeal by reference to particular classes of infringement. The British section of JUSTICE criticised this approach on the ground that it endeavours to confine a wide subject within limited categories, which may not, in the course of time, prove sufficient. They argued that the principles which ought to determine the balance of the competing interests of the intruder and the individual were the same in any privacy situation, and that if the legislature could define them for one purpose it could define them for all.[392]

5.47 Since a right of privacy defined in general terms would make the law uncertain and difficult to enforce, we have decided not to recommend the creation of a general tort of invasion of privacy. We consider that the proper approach is to isolate and specify the privacy concerns in which there is an undoubted claim for protection by the civil law, while, at the same time, identifying the overriding public interests to which the right of privacy must give way. Our conclusion is therefore to enact legislation creating one or more specific torts of invasion of privacy which clearly define the act, conduct and/or publication which frustrates the reasonable expectation of privacy of an individual without justification.[393]

5.48 We examine in the remaining parts of the report whether the following acts or conduct constitute an invasion of privacy, and if so, whether such acts or conduct ought to be actionable in tort: (a) intrusion upon the seclusion, solitude or privacy of another with or without a recording device; (b) unauthorised publicity given to facts pertaining to an individual's private life, whether the facts have been obtained by lawful or unlawful means; (c) exploitation or appropriation of a person's identity or likeness without his consent; and (d) publicity placing someone in a false light.[394]