|
Hong Kong Law Reform Commission |
6.1 This chapter begins by explaining why the law should protect an individual's interests in seclusion and solitude by creating a tort of intrusion upon the seclusion or solitude of another. We shall argue that it is only when the aggrieved person is reasonably entitled to expect to be free from surveillance that he may bring an action for intrusion. The thorny issue of whether or not a person can have a reasonable expectation of privacy in a place accessible to the public or where he can be seen by others will also be discussed. Since an intrusion may be effected by modern surveillance devices, the need to protect individuals against non-physical intrusion will be emphasised. The distinction between aural intrusion and visual intrusion will be maintained throughout the chapter because these are the two major ways by which a person's privacy can be intruded upon. To discourage the bringing of trivial claims, only intrusions that are seriously offensive or objectionable to a reasonable person of ordinary sensibilities would be actionable. In order to strike a fair balance between privacy interests and the general interests of the community, a number of defences will be proposed to protect those legitimate interests which may outweigh the right of privacy.
6.2 A matter of morals or good taste? - The HK Journalists Association commented that the issue of intrusion upon solitude and seclusion is in many ways one of "morals, taste and good manners" and the law is "a blunt tool" in this area. In our view, unwarranted intrusion upon the solitude or seclusion of another is offensive and objectionable. It is not merely a matter of morals or good taste. In the case involving the surreptitious videotaping of a university student inside her hostel room over the period from October 1996 to March 1997, the Privacy Commissioner observed:
"This incident … raised serious concerns about the adequacy of current laws to deal with a serious invasion of privacy. The main concern being that surveillance by itself is not contrary to the law. Only if it results in the collection of personal data does it become subject to the Ordinance. However, the individual's feeling that his or her privacy has been violated by being covertly observed, is directed as much, if not more, at the act of surveillance itself as at any resulting collection of personal data."[395]
6.3 An affront to human dignity - In the privacy context, the word "intrusion" may include "prying, spying, telephone-tapping, ‘bugging', interception of correspondence, searches, and other physical intrusions." Bloustein contends that intrusion into private affairs is wrongful because it is an assault on human personality and a blow to human dignity:
"The fundamental fact is that our Western culture defines individuality as including the right to be free from certain types of intrusions. This measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A man whose home may be entered at the will of another, whose conversation may be over-heard at the will of another, whose marital and familial intimacies may be overseen at the will of another, is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant."[396]
6.4 Restraint on individual liberty - The importance of protection from intrusion upon privacy to the enjoyment of individual liberty is well expressed by Judge Cobb in the following passage:
"Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public. One may desire to live a life of seclusion; another may desire to live a life of publicity; still another may wish to live a life of privacy as to certain matters and of publicity as to others. ... Each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from him his liberty."[397]
6.5 Private space to recover, relax and develop relations with others - One of the functions of privacy is to keep certain aspects of an individual's life or body out of the public realm. Every individual has to retreat from time to time into his private space to work, recover or relax. An individual should be free to indulge in his personal preferences in sex, religion, reading, research, play or manner of communication in settings where he is not aurally or visually accessible to others. It is only when an individual's private life is not exposed to the senses of others that he can freely develop his business, social and intimate relations with others. The ability to choose the circles in which we carry on such activities and to control the dissemination of personal information is important to a society that places a high value on liberal individualism.
6.6 Safeguarding freedom of action - An invasion of privacy is often accompanied by an increase of knowledge about the subject. This enables the possessor of that knowledge to manipulate or exercise control over the subject: "by possessing information about B that B does not want known, A will have greater power over B and, concomitantly, B will have less power over A."[398] Protecting the privacy of B will enable him to enjoy a greater degree of freedom of action.
6.7 Chilling effect on freedom of speech - The right to speak and publish does not carry with it the unrestrained right to gather information.[399] On the contrary, failure to provide adequate protection from intrusion by surreptitious surveillance has a chilling effect on freedom of communications. Richard Posner explains:
"Prying by means of casual interrogation of acquaintances of the object of the prying must be distinguished from eavesdropping, electronically or otherwise, on a person's conversations. A in conversation with B disparages C. If C has a right to hear this conversation, A, in choosing the words he uses to B, will have to consider the possible reactions of C. Conversation will be more costly because of the external effects, and the increased costs will result in less, and less effective, communication. After people adjust to this new world of public conversation, even the C's of the world will cease to derive much benefit in the way of greater information from conversational publicity, for people will be more guarded in their speech. The principal effect of publicity will be to make conversation more formal and communication less effective rather than to increase the knowledge of interested third parties."[400]
6.8 Diminution of "spatial aloneness" - Gavison argues that an individual loses privacy when another person gains physical access to him. She points out that where A is close enough to touch or observe B through normal use of his senses, the essence of B's complaint is not that more information about him has been acquired, nor that more attention has been drawn to him, but that his spatial aloneness has been diminished.[401]
6.9 Protecting individuals from unwanted access - The right to privacy entails the liberty of an individual to restrict physical access to his person or his private communications, and to avoid the society of others by retiring into a state of being or living alone. Where a person publicly performs an act in a closed or secluded place, only those who are admitted to that place are supposed to know of that act: third parties are not permitted to intrude into this circle. Insofar as an individual experiences privacy when he is neither looked at nor listened to against his wishes, all individuals have a reasonable expectation of privacy when in a state of solitude or seclusion.
6.10 The Basic Law of the Hong Kong SAR - Although the Basic Law does not make explicit reference to the right of privacy, Articles 28, 29 and 30 of the Basic Law provide a basic framework within which an individual's reasonable expectation of privacy is protected at a constitutional level. Any unauthorised surveillance or interception of communications is liable to be subjected to scrutiny under these articles. Article 28 of the Basic Law provides:
"The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. ..."
6.11 The right of an individual to be protected from intrusion into private premises is specifically addressed in Article 29. It provides that unlawful or "arbitrary" search of, or intrusion into, a resident's home "or other premises" shall be prohibited. Article 30 further provides that "The freedom and privacy of communications of Hong Kong residents shall be protected by law." The protection from unauthorised interception of communications covers all communications of Hong Kong residents regardless of where the communications take place. It should, however, be borne in mind that a breach of Articles 28, 29 or 30 of the Basic Law does not give rise to a cause of action in the civil courts unless and until the common law or a statute provides that it is actionable in tort.
6.12 Personal Data (Privacy) Ordinance - It may be thought that DPP 1, which requires that personal data be collected by means which are lawful and fair in the circumstances, can protect a person from intrusion or surveillance. However, DPP 1 is not engaged if the information is not recorded. Hence a person who uses a CCTV to monitor the activities in a sleeping room, hotel room, bathroom, toilet or changing room is not in breach of the PD(P)O if the images are not recorded. Further, since the Court of Appeal in the Eastweek case has held that the essence of an act of personal data collection is that the data user must thereby be compiling information about an identified person or about a person whom the data user intends or seeks to identify, the PD(P)O is inapplicable where the person who is using a surveillance device to monitor the conversations, activities or affairs of another is ignorant of and indifferent to the identity of his targets. Such is the case even though the use of the surveillance device is not fair in the circumstances and the conversations or images have been recorded without the knowledge and consent of the targets. The PD(P)O therefore fails to afford adequate protection against unwarranted surveillance.[402]
6.13 United Nations report on privacy - Subsequent to the adoption of the ICCPR, the Secretary-General of the United Nations published a report which included several specific points for possible inclusion in draft international standards concerning respect for the privacy of the individual in the light of modern recording and other devices.[403] After recommending that States adopt legislation, or bring up to date existing legislation, so as to provide protection for the privacy of the individual against invasions by modern technological devices, the report specifies the "minimum steps" that States should take, including the following:
"(e)… [C]ivil liability should attach to either the use of an auditory or visual device in relation to a person, under circumstances which would entitle him to assume that he could not be seen or heard by unauthorised persons, or the unauthorised disclosure of information so gained;
(f)Civil remedies shall allow a person to apply for the cessation of acts thus violating his privacy and, where the act has been completed, to recover damages, including damages for non-pecuniary injury; ... ."[404]
6.14 Nordic Conference - The Nordic Conference on the Right of Privacy identified the following acts or conduct as falling within a law of privacy:
"(a)Intrusion upon a person's solitude, seclusion or privacy
An unreasonable intrusion upon a person's solitude, seclusion or privacy which the intruder can foresee will cause serious annoyance ... should be actionable at civil law; and the victim should be entitled to an order restraining the intruder. In aggravated cases, criminal sanctions may also be necessary.
(b)Recording, photographing and filming
The surreptitious recording, photographing or filming of a person in private surroundings or in embarrassing or intimate circumstances should be actionable at law. In aggravated cases, criminal sanctions may also be necessary.
(c)Telephone-tapping and concealed microphones
(i)The intentional listening-in to private telephone conversations between other persons without consent should be actionable at law.
(ii)The use of electronic equipment or other devices - such as concealed microphones - to overhear telephone or other conversations should be actionable both in civil and criminal law."
6.15 Council of Europe - In a resolution on the right to privacy, the Parliamentary Assembly of the Council of Europe declares that:
"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 … 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".[405]
6.16 European Convention on Human Rights - The storing of data relating to the "private life" of an individual falls within the application of Article 8(1). The European Court of Human Rights points out in this connection that the term "private life" must not be interpreted restrictively. In particular, respect for private life comprises the right to establish and develop relationships with other human beings. It is irrelevant whether the information gathered on the individual is sensitive or not, or whether he has been inconvenienced in any way.[406] Further, the use of covert audio and video recording devices may amount to an interference with an individual's right to private life.[407] The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual's private life, but the recording of the data and the systematic or permanent nature of the record may give rise to such considerations.[408]
6.17 Canada - The Uniform Privacy Act provides that the following activities are presumed to be violations of privacy:
"(a)auditory or visual surveillance of the individual or the individual's residence or vehicle by any means, including eavesdropping, watching, spying, besetting and following, whether the surveillance is accomplished by trespass or not;
(b)listening to or recording a conversation in which the individual participates, or listening to or recording a message to or from the individual that passes by means of telecommunications, by a person who is not a lawful party to the conversation or message".
6.18 United States - One who intentionally intrudes upon the solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person.[409] The three elements of the tort are: (a) an intrusion by the defendant; (b) into a matter which the plaintiff has a right to keep private; (c) by the use of a method which is highly offensive to the reasonable person.[410]
6.19 New Zealand - An agency who collects personal information by means that are "unfair" or "intrude to an unreasonable extent upon the personal affairs of the individual concerned" in breach of Information Privacy Principle 4 may be held responsible for interfering with the privacy of an individual under the Privacy Act 1993. Further, the Broadcasting Standards Authority is of the view that the protection of privacy includes protection against the intentional interference (in the nature of prying) with an individual's interest in solitude or seclusion provided that the intrusion is offensive to an ordinary person.
6.20 South Africa - The South African Court recognises that breach of privacy could occur by way of an unlawful intrusion upon the personal privacy of another.[411] Examples are entry into a private residence, the reading of private documents, listening in to private conversations and the shadowing of a person.
6.21 Ireland - The Irish Law Reform Commission recommended that any person who invades the privacy of another by means of "surveillance" should be liable in tort. "Surveillance" is defined to include aural and visual surveillance (irrespective of the means employed) and the interception of communications (whether such communications are effected by electronic or other means) including (a) the recording of a conversation by a party thereto without the knowledge of the other party and (b) the recording by a third party with the knowledge of a party but without the knowledge of the other party.[412]
6.22 England - The Younger Committee recommended that surveillance (whether overt or surreptitious) by means of a technical device be a tort comprising the following elements: (a) a technical device; (b) a person who is, or his possessions which are, the object of surveillance; (c) a set of circumstances in which, were it not for the use of the device, that person would be justified in believing that he had protected himself or his possessions from surveillance whether by overhearing or observation; (d) an intention by the user to render those circumstances ineffective as protection against overhearing or observation; and (e) absence of consent by the victim.[413] The Calcutt Committee also defines 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." In R v Khan, the appellant contended for a right of privacy in respect of private conservations in private houses. Lord Nicholls, now also a Non-Permanent Judge of the HK Court of Final Appeal, expressed no view on the existence of this right in England, but stated that such a right, if it existed, could only do so as part of a larger and wider right of privacy. He added that "the continuing, widespread concern at the apparent failure of the law to give individuals a reasonable degree of protection from unwarranted intrusion in many situations" was "well known".[414]
6.23 Easy access to surveillance devices - In the past, simple precautions could be taken by individuals to protect themselves from being overheard or observed by others. Such precautions are no longer effective with the advances in the technology of surveillance devices. Listening and optical devices are becoming more and more sophisticated and many of them are now available at a low price either on the local market or the Internet. Surveillance technology now allows the penetration of physical barriers which, but for the use of such devices, would have been adequate for the protection of privacy against unwanted monitoring. It also renders legal protection of territorial privacy by the torts of trespass and nuisance inadequate if not irrelevant. The following illustrates the variety of technical devices that may be used for surveillance:
· A long-range camera can be used for taking photographs at night.
· An optical device can be operated by remote control in complete darkness.
· A telephone recorder can connect anywhere along the telephone line or simply be plugged in at any extension. It can record the conversation only when the telephone is in use.
· A miniature telephone transmitter can be placed along the telephone line, inside a socket or in the phone itself. It enables the user to monitor and record both sides of the conversations up to a distance of 1000 metres.
· A miniature ultra high frequency room transmitter can pick up sounds from up to 10 metres away and transmit to a receiver or scanner up to a distance of 800 metres. To record the reception, the receiver can be connected to a recorder for fully automatic recording.
· A transmitter can be hidden in a normal pen that writes as well. It can pick up the slightest whisper and transmit up to a distance of 300 metres.
· An ordinary pen can also conceal a high-resolution camera and a microphone. It can be placed in a pocket and connected to a video recorder or transmitter and receiver set.
· A transmitter hidden in an ordinary calculator can pick up sounds and transmit conversations to an ultra high frequency receiver or suitable scanner.
· A colour video camera with a pin-hole lens can measure just 25 x 25 mm. Since the hole-size is very small, it can be concealed almost anywhere.
· A standard button can be attached to the lens of a high-resolution camera. It can be used unattended and is invisible to the naked eye. Fitting is very simple for any type of jacket or coat. The camera has audio and can be connected to a transmitter.
· Where a wireless remote controlled automatic recording system is installed, the user can operate the video recorder and standby functions up to a distance of 100 metres away. The recorder can also be set to activate only when someone is present. When no one is detected, the recorder returns to standby until an intruder is detected again.
· An ordinary looking clock radio can conceal a high-resolution camera, microphone and transmitter.
· A hidden camera can be concealed in a smoke detector; and an ordinary tie can conceal a hidden camera that connects to a transmitter.
· An ordinary mobile phone can conceal a hidden camera, microphone and transmitter. The transmitter is powered from the phone's battery and will transmit video and audio to a microwave receiver.
· A miniature microphone can measure little more than a matchstick. It can be concealed almost anywhere and when used with the miniature amplifier, will pick up the slightest whisper up to 10 metres away.
· A miniature room transmitter, powered by just one small watch type battery, can measure just 40 x 10 x 10 mm. It can pick up all conversations in a large room and transmit up to a distance of 500 metres.
· A miniature digital recorder uses no tapes and records conversations with crystal clarity. It can be concealed almost anywhere and is ideal for body-worn use.
· A microwave-beam device enables an intruder to listen through walls and other obstacles. It is capable of listening through up to 60 cm of solid concrete, doors or windows.
· A wireless camera, which incorporates a tiny video camera and a 2.4 GHz transmitter with a range of 100 metres, can be the size of a sugar cube. It can transmit sharp, clear, colour images to a television set or a videocassette recorder, and can be turned into a web camera.
6.24 Conclusion - In order to protect an individual's interests in solitude and seclusion and to provide a civil remedy for unwarranted surveillance whether conducted with or without the assistance of a recording device, a tort of intrusion upon solitude or seclusion should be created by statute. This would remove the need for victims of invasion of privacy to seek relief by relying on a right of action in tort which is not primarily designed for the protection of privacy. Since the mischief is the act of intrusion, no disclosure or publication is required where the invasion of privacy consists of an intrusion upon an individual's seclusion or solitude.
6.25 In its report on surveillance and the interception of communications, the Irish Law Reform Commission recommends that the new tort of privacy-invasive surveillance should protect a reasonable expectation of privacy. It proposes that in determining whether the privacy of a person has been invaded by means of surveillance, the Court should consider the extent to which that person was reasonably entitled to expect that he should not be subjected to such surveillance having regard to all the relevant circumstances.[416]
6.26 The notion of reasonable expectation of privacy is the core of an intrusion tort. The US Supreme Court held that a person has a reasonable expectation of privacy if (a) he, by his conduct, has exhibited an actual (or subjective) expectation of privacy, that is, he has shown that he seeks to preserve something as private; and (b) his subjective expectation of privacy is one that society is prepared to recognise as reasonable, that is, the expectation, viewed objectively, is justifiable under the circumstances.[417] An individual does not have a subjective expectation of privacy if he has been put on notice that his activities in a specified area would be watched by others for a legitimate purpose. In US tort law, factors determining the reasonableness of an expectation of privacy include: (a) whether the area is generally accessible to the public; (b) whether the individual has a property interest in the area;[418] (c) whether the individual has taken normal precautions to maintain his privacy; (d) how the area is used; and (e) the general understanding of society that certain areas deserve the most scrupulous protection from intrusion.[419]
6.27 In recognition of its importance in determining whether an intrusion has occurred, the notion of reasonable expectation of privacy should be expressly incorporated as an ingredient of the new tort. The defendant should be liable only if the plaintiff had a privacy expectation that is reasonable in the circumstances. To assist the public and the Court in assessing whether an individual's privacy expectation is reasonable or not, the legislation should provide guidelines as to what factors the Court should take into account when determining whether a plaintiff has a reasonable expectation of privacy in the circumstances of the case. In our view, the following factors are relevant for this purpose:
(a) the place where the intrusion occurred (eg, whether the plaintiff is at home, in office premises or in a public place, and whether or not the place is open to public view from a place accessible to the public, or, as the case may be, whether or not the conversation is audible to passers-by);
(b) the object and occasion of the intrusion (eg, whether it interferes with the intimate or private life of the plaintiff);
(c) the means of intrusion employed and the nature of any device used (eg, whether the intrusion is effected by means of a high-technology sense-enhancing device, or by mere observation or natural hearing); and
(d) the conduct of the plaintiff prior to or at the time of the intrusion (whether it amounts to a waiver, in whole or in part, of his privacy in respect of the intrusion, for example, by actively inviting interest in his private life or voluntarily releasing intimate information about himself, and whether the plaintiff has taken any steps to protect his privacy).
6.28 We consider that the use to which material obtained by an intrusion is to be put, though relevant for the purposes of a tort of unwarranted publicity concerning an individual's private life, is irrelevant for the purposes of determining whether a victim has a reasonable expectation of privacy when the intrusion occurred. The relationship between the plaintiff and the defendant is also excluded from the list because this is a matter that goes to the issue of consent. Further, while the status and function of the plaintiff are factors to be taken into account when determining whether he has impliedly consented to the intrusion and whether the publication of facts pertaining to his private life can be justified, they are irrelevant for the purposes of determining whether he has a reasonable expectation of privacy. A person should be protected from unwarranted intrusion irrespective of his status and function. He should not be deprived of protection against intrusion merely because he is an artiste, a politician, a public officer, a victim of crime, or a person involved in a tragedy. Any intrusion has to be justified on grounds allowed by the law.
6.29 In the US, the plaintiff in an action for invasion of privacy by intrusion has to show that there was something in the nature of prying or intrusion. Offensive manners and insulting gestures are not enough. Moreover, the thing into which there was prying or intrusion must be private. Prosser and Keeton on the Law of Torts states:
"The plaintiff has no right to complain when his pretrial testimony is recorded, or when the police, acting within their powers, take his photograph, fingerprints or measurements, or when there is inspection and public disclosure of corporate records which he is required by law to keep and make available. On the public street, or in any other public place, the plaintiff has no legal right to be alone; and it is no invasion of his privacy to do no more than follow him about and watch him there. Neither is it such an invasion to take his photograph in such a place, since this amounts to nothing more than making a record, not differing essentially from a full written description, of a public sight which anyone would be free to see. On the other hand, when the plaintiff is confined to a hospital bed, and when he is merely in the seclusion of his home, the making of a photograph is an invasion of a private right, of which he is entitled to complain."[420]
6.30 Although the American approach has the merits of legal certainty and predictability, not every jurisdiction subscribes to the view that there can never be an intrusion in a public place or a place to which members of the public have access. Andrew McClurg argues that such an approach, which precludes the possibility of an invasion of privacy occurring in a public place, is too rigid in that it treats privacy as an all-or-nothing concept. Privacy is, in his view, a matter of degree. Although an individual surrenders much privacy when he ventures to a public place, it does not follow that he automatically forfeits all legitimate expectation of privacy.[421] McClurg notes that some American courts want to allow recovery in appropriate cases involving "public intrusions" but they lack a sufficient vehicle to accomplish the desired result. He therefore argues that the courts should recognise the existence of the concept of "public privacy" and afford protection of that right by allowing recovery for intrusions that occur in or from places accessible to the public.[422]
6.31 In Huskey v National Broadcasting Co,[423] the defendant's camera crew visited a prison and filmed the plaintiff who was an inmate in the prison's exercise cage, wearing only gym shorts and exposing his distinctive tattoos. The Court rejected the contention that the plaintiff was not secluded because he could be seen by prison guards, personnel, and other inmates:
"the mere fact a person can be seen by others does not mean that person cannot legally be ‘secluded'. … Further, [the plaintiff's] visibility to some people does not strip him of the right to remain secluded from others. Persons are exposed to family members and invited guests in their own homes, but that does not mean they have opened the door to television cameras."[424]
6.32 The same view has recently been endorsed by the Supreme Court of California in Sanders v ABC where an undercover reporter used a video camera hidden in her hat to covertly videotape her conversations with several co-workers.[425] The Court held that in a workplace to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be covertly videotaped by undercover television reporters, even though their conversations and interactions may have been witnessed by co-workers.[426] Hence, a person who lacks a reasonable expectation of complete privacy in a conversation because it could be seen and overheard by co-workers (but not the general public) may nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation. It reasoned that:
"privacy, for purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. Although the intrusion tort is often defined in terms of ‘seclusion' …, the seclusion referred to need not be absolute. ‘Like "privacy", the concept of "seclusion" is relative. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.'"[427]
6.33 In a German case involving the publication of photographs of Princess Caroline of Monaco having dinner with her boyfriend in a secluded part of a garden restaurant where a number of other patrons were also seated, the Court of Appeal held that the photographs did not violate her private sphere on the ground that they had been taken in a restaurant which was a public place.[428] This judgment was reversed by the Federal Supreme Court, which rejected the argument that privacy stopped "at the doorstep". The Court held that it was enough that the Princess had "retreated to a place of seclusion where [she wished] to be left alone, as [could] be ascertained by objective criteria, and in a specific situation, where [she], relying on the fact of seclusion acts in a way that [she] would not have done in public. An unjustified intrusion into this area occurs where pictures of that person are published if taken secretly or by stealth".[429] By holding that the plaintiffs had transferred their private sphere of life to a place outside their home, the Court has extended the spatial zone of legal protection of privacy to public places that are secluded from the general public. Examples given by the Court included a secluded room of a hotel or restaurant, a sports centre, a telephone box, and in certain circumstances, even out in the open. The Court held:
"Like all humans, persons of contemporary history have the right to retreat to places outside their home where they may wish to be let alone, protected [as it were] from public gaze. This may occur even in places which are open to the general public, though this presupposes that in the place in question the person somehow ‘shuts himself off' from the public at large. This ‘seclusion' must be ascertainable in an objective manner."[430]
6.34 In a similar vein, the Supreme Court of Iowa held that a woman dining in a restaurant who was filmed by a television reporter after having asked the reporter not to do so had stated a cause of action against the television station for intrusion upon her privacy.[431] The defendant argued that the plaintiff could not possibly have a cause of action because she was eating in a restaurant open to the public, where anyone could observe her. But the Court stated that it was not inconceivable that the woman was seated in the sort of private dining room offered by many restaurants, in which the filming of a patron might conceivably be a highly offensive intrusion upon that person's seclusion.
6.35 Paragraph 18 of the Code of Fairness and Privacy produced by the Broadcasting Standards Commission in the UK suggests that secret recording is an infringement of privacy which has to be justified even though the recording occurs in a public place:
"The use of secret recording should only be considered where it is necessary to the credibility and authenticity of the story, as the use of hidden recording techniques can be unfair to those recorded as well as infringe their privacy. In seeking to determine whether an infringement of privacy is warranted, the Commission will consider the following guiding principles: (i) Normally, broadcasters on location should operate only in public where they can be seen. Where recording does take place secretly in public places, the words or images recorded should serve an overriding public interest to justify: the decision to gather the material; the actual recording; the broadcast. …"
6.36 In R v Broadcasting Standards Commission, ex parte BBC,[432] a programme-maker secretly filmed transactions in Dixons Ltd's stores as part of an investigation into the selling of second-hand goods as new. The BSC upheld the complaint from Dixons Ltd that the filming had constituted an unwarranted infringement of its privacy within the meaning of section 110(1) of the Broadcasting Act 1996. One of the questions before the Court of Appeal was whether secret filming in a place to which the public had access could amount to an infringement of privacy unless what was filmed itself had a private element (which did not exist in that case). The Court of Appeal held that the BSC had been entitled to conclude that the secret filming was an infringement of Dixons Ltd's privacy. Hale LJ stated that it was open to the BSC to hold that secret filming of an individual for potential use in broadcasting was in itself an infringement of that individual's privacy (although it may well be warranted). In his view, notions of what an individual might or might want to be kept "private", "secret" or "secluded" were subjective to that individual: the infringement consisted in depriving the person filmed of the possibility of refusing consent.[433]
6.37 Clause 3(ii) of the Code of Practice ratified by the UK Press Complaints Commission provides that the use of long lens photography to take pictures of people in "private places" without their consent is unacceptable unless it can be demonstrated to be in the public interest. For this purpose, "private places" is defined as "public or private property where there is a reasonable expectation of privacy".[434]
6.38 In R v Loveridge,[435] Lord Woolf CJ, now also a Non-Permanent Judge of the HK Court of Final Appeal, noted in delivering the judgment of the English Court of Appeal that:
"secret filming in a place to which the public has free access can amount to an infringement even where there is no private element to the events filmed. Secret filming is considered objectionable, because it is not open to those who are the subject of the filming to take any action to prevent it".[436]
6.39 Lyrissa Lidsky agrees that there are relative degrees of privacy even in public places. She suggests that in determining whether surveillance involving filming, recording or photographing in public places is intrusive or not, the courts must consider factors such as (a) whether the defendant's use of technology enhanced his normal sensory capacities, (b) whether the plaintiff was aware he was being observed or filmed, (c) whether the plaintiff was acting in a private capacity or professional capacity, and (d) the exact location of the alleged intrusion.[437]
6.40 It will be recalled that the European Court of Human Rights in Niemietz v Germany has expanded the notion of private life to encompass the formation and development of personal relations, including activities of a professional and business nature. The Anglo-Saxon idea of private space as covering home, hospitals, hotel rooms and other private premises seems no longer adequate. In order to protect the freedom of individuals to establish and develop relationships with others, the idea of private space should no longer be confined to private places in which the individual has some exclusive rights of occupancy where secrecy or confidentiality can be maintained. The European Court has not given any guidance as to whether "private life" extends to activities in public places or semi-public places such as churches, funeral parlours and restaurants to which the public has a right of access. But in view of the expanding notion of private life set out in the Niemietz case, it is clear that the private or public nature of the location is not always decisive in determining whether the individual has a legitimate expectation of privacy. For instance, it is arguable that a person who takes pictures of women entering an abortion clinic or of persons entering a health centre for AIDS patients captures an intimate fact about the private lives of the persons filmed even though the pictures are taken in a public place.[438]
6.41 We are persuaded by the arguments put forward in the authorities cited above. Privacy is a matter of degree. It is not an all-or-nothing concept. We admit that a person's reasonable expectation of privacy is considerably less when he is in a public place than when he is at home, and the taking of casual photographs in a public place should not normally be held to be an invasion of the privacy of a person who happens to be captured by such a photograph. However, a person does not forfeit all legitimate expectation of privacy when he ventures to a public place or a place to which the public has access. The fact that the plaintiff is in a private or public place is not conclusive in determining whether he has a reasonable expectation of privacy. Targeted photography or filming of a person inside a gymnasium, public toilet, methadone clinic, job centre, funeral parlour, church, hospital ward or waiting area of a social hygiene clinic, is intrusive if done without that person's consent - even though he is in a place accessible to the public. These places are in a sense public but where people expect a reasonable degree of seclusion. Another example is the use of an electronic listening device to spy on another person's conversation from a distance. It intrudes upon the privacy of the interlocutors whether the conversation is conducted in a public place or not.
6.42 We also agree with the observation that the mere fact that a person can be seen by others does not mean that he cannot be secluded in a legal sense. Seclusion need not be absolute. He can be visible to some people without forfeiting his right to remain secluded from others. The fact that the privacy one expects in a given setting is limited and not complete should not render the expectation unreasonable as a matter of law.
6.43 Where a person has secluded himself in his home, an office, a guest room, a hospital room or a cubicle, he should have a right to bring an action against any one who, without proper authority, forces his way into the premises. Whether the place in which a person has secluded himself is private or public in nature is immaterial. The question of ownership is not decisive when it comes to the protection of privacy. A person is entitled to the privacy of his flat, room or cubicle in which he has lawfully secluded himself even though he has no proprietary interest in it.
6.44 In Philipe v France Éditions,[439] reporters entered the hospital room of the child of a French actor and took photographs. The publisher planned to publish the photographs alongside a story about the child's illness. The Paris Court of Appeal granted an injunction and held that the photographs and story were "an intolerable intrusion into the private life of the Philipe family". In the American case of Barber v Time Inc,[440] the plaintiff was being treated in hospital for a rare eating disorder when journalists entered her room without permission and photographed her despite her objections. Time magazine published the photographs and an article entitled "Starving Glutton". The Supreme Court of Missouri held the magazine liable for invasion of privacy. Other examples of physical intrusion include the placement of a hidden transmitter inside the target premises; the attachment of a miniature microphone to the outside of a window; and the fixing of a telephone transmitter inside the socket or receiver or anywhere on the telephone line.
6.45 Apart from physical intrusion upon a person's seclusion, non-physical intrusions such as looking onto a person's private property and eavesdropping on private conversations are also objectionable in circumstances where the person has a reasonable expectation of privacy.[441] A person who surreptitiously overhears or observes the private affairs of another by the use of his senses, whether with or without the aid of a surveillance device, intrudes upon the latter's solitude or seclusion even though he has not trespassed on the latter's property. If the intrusion tort is limited to physical intrusions, persons who conduct visual or aural surveillance without encroaching upon the premises in which the target is located or otherwise interfering with the target's property would be able to avoid liability. This is unjust to the persons who are subjected to surveillance. The tort should therefore cover both physical and non-physical intrusions.
6.46 Non-physical intrusion may be effected by surveillance devices which do not need to physically intrude on property or come close to the target. Examples are devices that operate by intercepting at a distance information transmitted by satellite, microwave and radio, including mobile telephone transmissions. Some devices may even intercept electromagnetic radiation emitted from electronic equipment. Electronic devices such as computers and printers emit radiation through the air or through wires. A private detective can monitor and retrieve information in any electronic device while it is being processed without the knowledge of the user. Emanation monitoring is difficult to detect because it is passive and can be done at a distance from the target. Although much of such electromagnetic radiation is not intended to transmit information, the intercepted material may be reconstructed into useful intelligence. It is now technically possible to reconstruct the contents of computer terminal screens, the contents of a computer's memory, or the contents of its mass storage devices at a distance.[442]
6.47 The Commission report on Interception of Communications recommends that the interception of telecommunications while the messages are in the course of transmission be a crime. Telecommunications presuppose the existence of a sender and a recipient. The word "telecommunications" indicates that the sender is seeking to send signals or messages to the intended recipient by electronic equipment; it does not refer to the inadvertent emission of electromagnetic radiation. Insofar as emanated transient electromagnetic pulses are not telecommunications nor would they be regarded as a form of communication, the monitoring ofelectromagnetic emanations of electronic equipment would not be covered by the proposed interception offence. We consider that such monitoring should give rise to liability in tort.
6.48 Subsequent to the publication of our Interception Report, Security Branch (as it was then) published a consultation paperinviting the public to comment on a draft Interception of Communications Bill. The White Bill explicitly excluded electronic communications from the scope of the new legislation by excluding "communication[s] sent through a computer network" from the definition of "communication".[443] The effect of such a provision is that the interception of telephone conversations and electronic mail would not be unlawful under the new legislation. We consider that unauthorised interception of telephone conversations and electronic mail should be subject to both criminal and civil sanctions unless the interception is made pursuant to a judicial warrant.
6.49 Aural surveillance generally refers to the surreptitious overhearing, either directly by ear or by means of some technical device such as a wiretap, microphone or amplifier, of conversations, or the preservation of such conversations by a recording device. Eavesdropping on private conversations intrudes on the solitude and seclusion of the parties to the conversations and enables the eavesdropper to pry into another's private affairs. It constitutes an invasion of privacy[444] and is, unless authorised, contrary to Article 30 of the Basic Law.[445] The victim should be able to maintain a civil action against the eavesdropper. Failure to impose liability on the eavesdropper would effectively deny an individual other rights and freedoms guaranteed under the Basic Law.[446]
6.50 Although a person who speaks loudly cannot reasonably expect his conversation not to be overheard by his neighbours, he may nevertheless expect that his conversation will not be transmitted or recorded by a technical device that is installed in his premises without his consent. Eavesdropping by an amplifying, transmitting or recording device is offensive. In McDaniel v Atlanta,[447] the defendant caused a listening device to be installed in the plaintiff's hospital room in which personal and private conversations with her husband, nurses and friends were held. As a result, what was said and done by the plaintiff was listened to and recorded by the defendant. The Court held that the defendant's conduct was "as effectively an intrusion upon or an invasion of privacy of the plaintiff as if the agent had actually been in the room." Similarly in Hamberger v Eastman,[448] the landlord had installed an eavesdropping device in the bedroom of the plaintiffs who were a husband and wife. The plaintiffs alleged that as a result of the discovery of the device, they were "greatly distressed, humiliated, and embarrassed," and that they sustained "intense and severe mental suffering and distress, and have been rendered extremely nervous and upset." The Court held that it was highly offensive to intrude into marital bedrooms.[449]
6.51 An individual's right to privacy does not automatically cease when he leaves the confines of his home or other secluded premises. Intrusion by eavesdropping may occur in public places as well as private premises. The expectation to be free from visual surveillance is distinct from the expectation to be free from aural surveillance. A person can be visible to the public without forfeiting his right to the privacy of his communications. A conversation between two persons sitting on a bench in a public park with no one sitting or standing nearby should be protected even though it is conducted in a public place. Granting legal protection to that conversation is in accordance with the reasonable expectation of the interlocutors because the words spoken are not sufficiently in the public domain as to justify their being overheard by another.
6.52 In Goldman v US, the Court held that the use of an electronic listening device was not an unlawful search and seizure in the absence of a physical intrusion or trespass accompanying the surveillance.[450] This rule was expressly disapproved in Katz v US in which FBI agents had planted an electronic listening device on the outside of a public telephone booth to eavesdrop on the defendant's conversation.[451] In response to the argument that the telephone booth was constructed partly of glass, so that the defendant was as visible after he had entered it as he would have been if he had remained outside, the US Supreme Court pointed out that what the defendant sought to exclude when he entered the booth was not the intruding eye, but the uninvited ear. The Court held that an unlawful search and seizure had taken place notwithstanding the absence of a physical intrusion into any given enclosure. Stewart J stated:
"the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."[452]
6.53 Hence, although a person may take a photograph of two public figures sitting inside a private car, he may be liable for invasion of privacy if he places a hidden device inside the vehicle compartment to listen to their conversations.
6.54 The respondents to the 1997 Baseline Opinion Survey commissioned by the Privacy Commissioner considered the opening of their personal mail by another and the taking of pictures of them through a window by an outsider as "highly invasive".[453] In the opinion survey conducted in 2000, the respondents found the following activities "quite invasive" of their individual privacy: an employer looking at the contents of an employee's email on a company supplied computer; installing a video camera in the pantry of the working place; and monitoring the entrance of the working place by a video camera.[454] The survey also found that 64% of respondent organisations carried out some form of surveillance, mostly CCTV.[455]
6.55 Whether visual observation of a person or his personal property amounts to an intrusion upon seclusion depends mainly on whether that person has a reasonable expectation of privacy in the area in which he or his property is located. Where a picture of an individual is taken in a public place, it is unlikely that his right to privacy has been violated, even though it is taken without his consent and may annoy him.[456] A person does not normally have a reasonable expectation of privacy when he is in an area visible to the general public. Observing through an open window of an individual's home constitutes no invasion of privacy because any information acquired thereby is knowingly exposed by him.[457]
6.56 Under this plain view doctrine, much of a vehicle's interior is within the plain view of passers-by and is not protected from intrusion by curious onlookers.[458] A driver cannot complain if a journalist takes a picture of him driving the vehicle on the road. Nor can the shop-owner complain if a journalist observes him selling drugs to customers over the counter which is open to public view. Where the individual or his property is in plain view and is perceptible to the naked eye, the use of a binocular or long-lens camera to observe or record does not normally infringe the individual's expectation of privacy. However, there is an intrusion if a technical device is used to collect data which would otherwise be shielded from observation but for the use of the device.[459]
6.57 Where a photograph is taken within the privacy of a person's home or hospital room, the photographer should normally be liable for invasion of privacy.[460] But the taking of photographs of another on a "private occasion" may also be objectionable.[461] The Court of Appeal in Oriental Press Group Ltd v Apple Daily Ltd noted that "Public sentiment has turned, or seems to be turning, against those who are guilty of invasion of the privacy of public figures by taking their photographs on private occasions without their consent and then selling those photographs for large sums".[462]
6.58 Aerial surveillance - Aerial observation does not constitute an intrusion unless the individual has a reasonable expectation of privacy in the area exposed to aerial view. The factors that are taken into consideration by the American courts in determining whether warrantless aerial surveillance constitutes a "search" for the purposes of the Fourth Amendment are: (a) the height of the aircraft; (b) the size of the objects observed; (c) the nature of the area observed, including the uses to which it is put; (d) the frequency of flights over the area; and (e) the frequency and duration of the surveillance.[463]
6.59 Apart from "Peeping Toms" and eavesdroppers, those who, for example, without consent or lawful authority:
· open another's private and personal mail;
· examine another's personal belongings such as his diary, wallet or address book;
· search another's premises, vehicle, locker, briefcase or handbag;
· conduct a body search;
· gain access to another's bank statements or medical records;
· obtain access to data stored in another's computer;
· intercept the communications of another;
· fix a tracking device on the vehicle or personal belongings of another;[464] or
· keep another under constant or systematic surveillance,
also invade the privacy of that other by intruding into his private affairs or concerns. Such conduct should be rendered tortious by holding the perpetrator liable for intrusion into another's private affairs or concerns. Intrusions of this nature may take place in a private or public place.[465] Any one who overhears the conversation between two or more persons in a public place with the aid of a technical device in circumstances where the interlocutors are reasonably entitled to expect to be free from aural surveillance may be held liable under this head.
6.60 The European Court of Human Rights had this to say in PG and JH v United Kingdom:[466]
"The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Article 8 also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life'.
There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of Article 8, even where the information has not been gathered by any intrusive or covert method. … .
In the case of photographs, the [European Commission on Human Rights] previously had regard, for the purpose of delimiting the scope of protection afforded by Article 8 against arbitrary interference by public authorities, to whether the taking of the photographs amounted to an intrusion into the individual's privacy, whether the photographs related to private matters or public incidents and whether the material obtained was envisaged for a limited use or was likely to be made available to the general public. … ."
6.61 The notions of solitude and seclusion are less relevant when a person leaves his private enclave and ventures into the public realm. However, a person still has some legitimate expectation of privacy even though he is in places accessible to the public or visible from places open to the public. He maintains an interest in being able to move about anonymously.[467] As observed by Westin, when people go into stores, hotels, restaurants and other places of public accommodation, they do not expect to be under secret surveillance, especially in those times and places for which social custom has set norms of privacy, even in public situations.[468] If a person knows that someone is paying attention to him by following him, listening to him or observing him, he may have to modify or curtail his lawful activities on the understanding that any information revealed by his activities would be captured, recorded and even publicised against his will. By observing the public activities of a person for a long period of time, one can also find out a considerable amount of private information about him.[469] Yet casual observation should not attract liability in tort, nor should a celebrity have any cause to complain if a reporter or his fan pays attention to him in a public place. The mischief against which the law of privacy should provide a remedy is unwarranted surveillance, not casual observation. In our view, a person generally has a reasonable expectation not to be subjected to constant or systematic surveillance (whether overt or covert) even though he is in a public place. Keeping a person under constant or systematic surveillance in public places is a form of intrusion into the latter's private affairs or concerns.[470]
6.62 The surreptitious use of a video camera by a lawful visitor whose presence is known to the subject may constitute an invasion of the latter's privacy. Anyone in a public bathroom or changing room who uses a hidden device to take pictures of another taking a shower or changing clothes should be subject to civil sanctions. Similarly, a person who is invited into another's home or office should not be allowed to film what he could lawfully see, but which is screened from public view, while he is inside. The surreptitious use of a video camera in these circumstances is offensive and objectionable whether or not the information is eventually disclosed. The permission for a person to enter and stay at a particular place does not extend to the use of a hidden camera to collect information inside. The fact that an individual consents to being watched by another person does not necessarily mean that he also consents to that other person making a permanent record of what he sees or to his transmitting the visual images to a third party by electronic means.
6.63 In Murray v UK,[471] one of the applicants complained, inter alia, that she had been photographed without her knowledge or consent while in custody at an Army screening centre after her arrest. At the hearing before the European Court of Human Rights, the UK Government did not contest the fact that the impugned measures, including the photography, interfered with the applicants' exercise of their right to respect for their private and family life.
6.64 In Dietemann v Time,[472] two employees of a magazine posed as patients and used a hidden camera and a microphone to investigate someone who had been alleged to have been practising medicine without a licence. The US Court of Appeals held that clandestine photography of the plaintiff in his den and the recording and transmission of his conversation without his consent resulting in his emotional distress warranted recovery for invasion of privacy:
"One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves. But [the plaintiff] does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living colour and hi-fi to the public at large or to any segment of it that the visitor may select. A different rule could have a most pernicious effect upon the dignity of man and it would surely lead to guarded conversations and conduct where candor is most valued, e.g., in the case of doctors and lawyers."[473]
6.65 In Creation Records Ltd v News Group Newspapers Ltd, a photographer who was lawfully at the hotel was able to gain access to a restricted area to observe a scene which was not intended for publication. Lloyd J said:
"I accept also that they were of course allowed to observe the scene and could therefore have gone away and told the world the ingredients of the picture, or even made a sketch of it from memory. But being lawfully there does not mean that they were free to take photographs, and it seems to me that to be able to record it as a photographic image is different in kind, not merely in degree, from being able to relate it verbally or even by way of a sketch."[474]
6.66 Keene LJ made a similar observation in Douglas v Hello! Ltd:
"It is said that those photographs in the present case did not convey any information which had the quality of confidence, because the guests were not prevented from imparting the same information subsequently, whether in words, by drawings based on recollection or any other means. This argument is unsustainable. The photographs conveyed to the public information not otherwise truly obtainable, that is to say, what the event and its participants looked like. It is said that a picture is worth a thousand words. Were that not so, there would not be a market for magazines like Hello! and OK! The same result is not obtainable through the medium of words alone, nor by recollected drawings with their inevitable inaccuracy."[475]
6.67 While the recording or transmission of communications by a party without notice to the other party might be acceptable in the aural context, the surreptitious use of a video camera by a licensee or invitee is of a different quality and raises different concerns. Whilst it may be true that the use of speaker-phones and recording machines has reduced the level of privacy expectation which an interlocutor would have when engaging in telephone conversations, the person whose appearance or property is not in public view is reasonably entitled to expect that information about him or his property would not be recorded or transmitted by another to a third party without his consent. Such is the case even though the person using the camera is lawfully present on the premises and the subject or property is within his eyesight.
6.68 There is a qualitative difference between mere casual observation unaided by technology, and the deliberate recording of an individual in a private place using a sophisticated surveillance device. Creating a permanent record by photography or filming is more intrusive than mere observation. A permanent photographic image may contain all the minute details of an individual's appearance or property which would not otherwise be captured by a fleeting glance. Whereas an audio recorder merely repeats what the other party said to the person operating the recorder, a video camera gathers more data about the other party than what the data collector saw with his own eyes. There is also a risk of disclosing data captured by a video camera to a third party or to the whole world through the Internet once a permanent record is made. The subject's image, his private behaviour or his personal belongings can be transmitted, without his knowledge, at any time in the future to an audience completely different from the one he originally expected.[476] Besides, an individual often tailors his behaviour to the audience. By surreptitiously recording him, it is arguable that the intruder has violated both his expectation of anonymity and his autonomy in selecting to whom he will reveal himself. We therefore find surreptitious video recording by a person who is otherwise lawfully present on the premises offensive and objectionable. There is no implied consent to surreptitious recording of visual data by a person whose presence on the premises is otherwise lawful. Such recordings should generally be permissible only if the individual concerned consents.
6.69 The Sub-committee was originally of the view that surreptitious collection of visual data with the assistance of a technical device carried by a person who is lawfully present on the premises does not constitute an intrusion.[477] The Sub-committee therefore recommended in the Consultation Paper that the surreptitious use of a device to collect visual data about an individual which would not otherwise be open to public view should be deemed to be an intrusion for the purposes of the intrusion tort, even though the person using the device is lawfully present on the premises in which the data are located and the data are visible to his naked eye. However, the Sub-committee has since accepted that an intrusion can occur in a place accessible to the public or where the subject can be seen by others as long as the subject has a reasonable expectation of privacy in the circumstances. Such being the case, the new tort should be able to protect individuals who are reasonably entitled to expect that they would not be subjected to secret filming - whether or not the presence of the intruder is otherwise lawful. It is therefore no longer necessary to make a separate recommendation on unauthorised filming by a lawful visitor.
6.70 The UK Consultation Paper examined whether a defendant should be liable only if he intended to invade the plaintiff's privacy, or if he was reckless or negligent, or whether there should be strict liability so that the defendant would be liable even though he could not be said to be at fault. It commented that to limit liability to cases where there was clear intention would unduly restrict plaintiffs' right to a remedy, but that the balance would be tilted too much in their favour if the tort were made one of strict liability. It therefore suggested that the defendant should be liable where the infringement was caused intentionally, recklessly or negligently.[478]
6.71 We consider that the plaintiff should not be allowed to recover if the intrusion was accidental or the defendant was merely negligent.[479] Clerk and Lindsell on Torts suggests that recklessness, in the sense of indifference to the consequences and/or willingness to run the risk of those consequences, would generally be sufficient to establish liability for the intentional torts.[480] Since indifference to the consequences of an invasion of privacy is as culpable as intentionally invading another's privacy, we consider that an intrusion must be either intentional or reckless before the intruder could be held liable.[481]
6.72 Not every intrusion warrants the imposition of civil liability. Hong Kong being a densely populated city, all residents must accept that they are subject to a certain degree of scrutiny by their neighbours. To discourage the bringing of trivial or frivolous claims, an objective test should be applied to determine the liability of the intruder. In our view, an intrusion should not be actionable unless the plaintiff can show that it is seriously offensive or objectionable to a reasonable person. This would ensure that the right of privacy would be determined by the norms of a person of ordinary sensibilities and not those of a hypersensitive person. As observed by American Jurisprudence:
"In order to constitute an invasion of the right of privacy, an act must be of such a nature as a reasonable person can see might and probably would cause mental distress and injury to anyone possessed of ordinary feelings and intelligence, situated in like circumstances as the complainant."[482]
6.73 In determining the offensiveness of an invasion of a privacy interest, the American courts consider, among other things, "the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded."[483]
6.74 We consider that the Court should take the following factors into account in determining whether an intrusion was seriously offensive or objectionable to a reasonable person:[484]
(a) The magnitude of the intrusion, including the duration and extent of intrusion- The greater the magnitude of the intrusion, the more likely that the act will be considered seriously offensive to a reasonable person.
(b) The means of intrusion - Whether the defendant used a technical device to record the plaintiff is another factor that the Court should take into account. The type of recording device used is also relevant. The use of a wireless remote-controlled automatic video recorder with a pin-hole lens is more offensive and objectionable than using an ordinary camera.
(c) The type of information obtained or sought to be obtained by means of the intrusion - ie whether the information is sensitive or intimate.
(d) Whether the plaintiff could reasonably expect to be free from such conduct under the customs of the location where the intrusion occurred - Not all places that are accessible to the public are equally "public" in terms of a person's privacy expectations. Although persons in crowded settings must accept that their images may be captured by a camera, they have a reasonable expectation not to be subjected to extensive videotaping or photography. Where a person seeks solitude in an isolated setting such as an empty beach or in a remote part of a country park, he may reasonably expect greater privacy than on the streets of a city centre. This is the case even though the location is technically accessible to the public. While he is aware of the possibility of encountering others, he reasonably expects that those encountered will, by virtue of the surroundings, exercise greater respect for his privacy than would occur in more populated areas.[485]
(e) Whether the defendant sought the plaintiff's consent to the intrusive conduct
(f) Whether the plaintiff has taken any actions which would manifest to a reasonable person the plaintiff's desire that the defendant not engage in the intrusive conduct - Such actions may be either explicit or implicit. A person may indicate that he wishes to be let alone by taking measures to protect his privacy or requesting the defendant not to videotape him. Less clear-cut are situations where a person chooses to appear in a publicly accessible place where he could nevertheless reasonably expect some degree of privacy. For instance, a couple who choose to have a private conversation in a remote corner of a park sheltered by trees could reasonably expect their conversation to be free from monitoring. Their action in situating themselves in a remote area is a factor that should be taken into account.
(g) Whether the defendant had been acting reasonably in the interests of the plaintiff - An intrusion is less likely to be considered offensive if the defendant has been acting in the interests of the plaintiff who is a minor or is in need of care.
6.75 We conclude that the intrusion tort requires proof of the following:
(a) the plaintiff had a reasonable expectation of privacy in the circumstances of the case;
(b) either an intrusion upon the solitude or seclusion of another or an intrusion into another's private affairs or concerns;
(c) the intrusion must be done intentionally or recklessly; and
(d) the intrusion must be seriously offensive or objectionable to a reasonable person of ordinary sensibilities.
6.76 We should add that an actionable intrusion may be physical or non-physical, and may be committed with or without the aid of a technical device. There should not be any requirement that the intrusion must occur in a private place or premises, nor should there be a requirement that the defendant has acquired or recorded any personal information about the plaintiff as a result of the intrusion.
6.77 An interference with private life does not necessarily involve an acquisition of personal information. Telephone tapping is objectionable even though the eavesdropper does not know the identity of the callers, or the contents of the conversation does not relate to a particular individual, or the subject matter of the conversation is not secret or private. Likewise, some voyeurs obtain immediate gratification simply by observing the activities of another without the latter knowing that he is being observed. Overhearing or observing an individual in circumstances where he has a reasonable expectation of privacy is therefore objectionable even though the observer or eavesdropper does not acquire any sensitive or intimate information about him. The objection has no necessary connection with the quality of the information obtained. It is more to do with the loss of control over what, when and how information about the individual is disclosed. We therefore consider that the acquisition of personal information should not be a necessary ingredient of the intrusion tort even though it may be taken into account by the Court in determining the magnitude of the intrusion.
6.78 Both the Bar Association and the HK Democratic Foundation agreed that intrusion should be a tort. However, the Privacy Commissioner commented that expressions such as "the solitude and seclusion of another" and "seriously offensive and objectionable to a reasonable person of ordinary sensibilities" are not expressions with clear judicially-defined meanings. Although any uncertainty may be removed by judicial interpretation, the development of case-law is likely to be slow. In our view, the ingredients of the new tort are sufficiently clear and precise for the general public to discern their meaning. The expressions used are capable of definition by using case law or an appropriate dictionary meaning. The fact that they form the basis of the intrusion tort in the US indicates that any suggestion that the new tort would lead to uncertainty and confusion is unfounded.
6.79 The Privacy Commissioner further submitted that since uncertainty in outcome was less likely to be a major concern for a plaintiff who could well afford to take the trouble and incur the expenses of bringing a lawsuit, the privacy torts might "unintentionally end up, for practical purposes, being laws for the protection of the ‘rich and famous'." The Privacy Commissioner invited the Sub-committee to consider whether there was any "practical alternative redress mechanism", and to compare it with the proposed creation of the two torts in terms of their respective costs (both to victims and to taxpayers), user-friendliness and effectiveness.
6.80 It may be recalled that the Sub-committee Consultation Paper on Surveillance and the Interception of Communications has provisionally recommended that surveillance of private premises by means of a technical device be a crime. If such criminal measures were in place, the law could afford effective protection to individuals against the most serious intrusion at negligible cost to the victims. As regards the less serious cases, unless the Personal Data (Privacy) Ordinance is amended to provide an effective remedy for invasion of privacy by means of surveillance or unwarranted publicity and the Privacy Commissioner is vested with a power to award compensation or undertake legal proceedings in the name of the complainant, the only practical way to give effect to the right to the protection of the law against unlawful or arbitrary interference with privacy under the ICCPR is to provide a civil remedy by creating the privacy torts proposed in this report.
6.81 The Hong Kong section of JUSTICE did not agree with the creation of such a tort. They stated that the proposals, if adopted, would introduce into the laws of Hong Kong new expressions such as "solitude", "seclusion", "private affairs or concerns", "private life", "seriously offensive and objectionable" and "a reasonable person of ordinary sensibilities". These new expressions were, in their opinion, not well known to the public. We should point out that these concepts have been employed by the American courts in developing the law of privacy in the US since the early twentieth century. The Hong Kong courts could always have regard to overseas authorities in developing the law of privacy in Hong Kong. The absence of a precise and exhaustive definition has not presented insurmountable problems in the laws of negligence and defamation. Concepts such as "reasonable person" and "right-thinking members of society" are widely used by the civil courts. In any event, the introduction of new concepts is an inevitable result of law reform.
6.82 JUSTICE (HK) acknowledged that the Hong Kong Court might resort to the American jurisprudence in construing the privacy legislation, but they believed that there was little guarantee that American case-law would be accepted by the Hong Kong Court without question. A period of uncertainty and confusion would have to be expected. We note, however, that while JUSTICE (HK) distrusted the Court's ability to remove any uncertainty in the privacy legislation by reference to American authorities, they were prepared to rely on the Court to develop the law of privacy at common law by reference to the jurisprudence in other common law jurisdictions.
6.83 JUSTICE (HK) preferred to adopt an incremental approach and choose the relatively "slow" road of judicial development of the common law. We find it difficult to understand why JUSTICE (HK) preferred judicial development of the common law to enactment of privacy legislation, which would set out in detail all the essential ingredients of a privacy tort in carefully defined terms. All individuals are entitled to legal protection against unwarranted invasion of privacy under the ICCPR. Introducing a statutory tort of invasion of privacy would achieve certainty rather than generating uncertainty. Victims of invasion of privacy should not be required to wait for judicial development to provide a remedy, nor should a victim be required to test his case before the Court in order to seek recompense for an infringement of a fundamental human right.[486]
6.84 The Security Bureau recognised that there was an increasing awareness in the community of the need for protection of privacy, particularly in view of the availability of low-cost technical devices that might be used to intrude into another person's private life. They noted that certain acts of invasion of privacy were not regulated under the law. They considered that there appeared to be a need to create an intrusion tort.
|
Recommendation 2
We recommend that any person who intentionally or recklessly intrudes, physically or otherwise, upon the solitude or seclusion of another or into his private affairs or concerns in circumstances where that other has a reasonable expectation of privacy should be liable in tort, provided that the intrusion is seriously offensive or objectionable to a reasonable person of ordinary sensibilities. |
|
Recommendation 3
We recommend that the legislation should specify:
(a) the factors that the courts should take into account when determining whether the plaintiff had a reasonable expectation of privacy at the time of the alleged intrusion; and
(b) the factors that the courts should take into account when determining whether an intrusion was seriously offensive or objectionable to a reasonable person. |
6.85 Relationship with Interception Report - We recommended in our Interception of Communications Report that it should be an offence intentionally to intercept or interfere with a telecommunication while it is in the course of transmission.[487] We also recommended that any person who unlawfully intercepts a telecommunication should be liable to pay compensation to the victim unless the latter has been awarded compensation by the supervisory authority set up to issue warrants authorising interceptions that would otherwise fall within the scope of the new offence. Civil remedies for unwarranted intrusion other than by means of an interception falling within the scope of the proposed legislation would have to be sought by bringing an action for invasion of privacy by intrusion.
6.86 In the context of workplace surveillance, we have to balance the interests of employers, employees and clients. An employee's expectation of privacy in his activities in the workplace has to be balanced against the employer's need to keep the workplace and his employees' activities under surveillance for legitimate business purposes. In determining whether an employer should be liable for the intrusion tort on the ground that he has kept his employees under surveillance, the court would have to assess whether the employee has an expectation of privacy and, if so, whether the employer has a legitimate justification for the intrusion which renders the employee's expectation unreasonable in the circumstances. This legitimate justification will usually be a business matter but it may be an external one, such as investigation into a crime which is unrelated to the business.
6.87 However, the tort of intrusion upon solitude or seclusion may not afford effective protection to employees. It would be open to employers to justify their intrusion on the ground that, for example, it is reasonably necessary to protect property or personal safety. Additional guidance is required to address the privacy concerns of surveillance in the workplace. In view of the difficulties of balancing the interests of employers, employees and clients, the Sub-committee considered that the best way to address the issue of workplace surveillance is for the Privacy Commissioner to issue an appropriate code of practice. The Consultation Paper therefore recommended that the Privacy Commissioner should give consideration to issuing a code of practice on all forms of surveillance in the workplace. No respondent objected to this proposal.
6.88 The Privacy Commissioner considered that organisations using surveillance facilities to monitor their employees should have a written policy on these activities and that their staff should be so notified. He supported the sub-committee's proposal but added that the code should initially be restricted to common forms of surveillance in the workplace, eg CCTV and telephone and email monitoring. The Commissioner has since issued a Draft Code of Practice on Monitoring and Personal Data Privacy at Work for public consultation. After the consultation had ended, the Commissioner decided not to issue a code of practice under the PD(P)O but to issue "best practice" voluntary data privacy guidelines on workplace monitoring instead.[489]
6.89 The right to privacy ought to be restricted where an individual consents to the intrusion or he has engaged in a course of conduct that precludes him from asserting that right. A plaintiff should also be precluded from seeking relief if he has waived his right of privacy with respect to the intrusion. As succinctly summarised by American Jurisprudence, the right to privacy may be waived completely or only in part; it may be waived for one purpose and still be asserted for another; and it may be waived as to one individual, class, or publication, and retained as to all others.[490] The fact that a person deliberately courts publicity by providing intimate facts about himself should not be taken to mean that he agrees to the media taking pictures of him in circumstances where he has a reasonable expectation of privacy.
6.90 Further, the consent given by the subject must be specific to the intrusion at issue, and not another one. Nor can it derive from a previous consent that has been given for another purpose. The intrusion must not exceed, as to its form or object, the scope of his consent. The fact that a person has consented to an intrusion into his private life in the past does not necessarily mean that he has waived his right to complain for ever.[491]
6.91 There is implied consent if the plaintiff, by his conduct, places himself in a position where he knows or ought to know that the intrusion is the natural consequence of his conduct. Thus, if a person attends a public forum, he may be taken as having impliedly consented to the media taking pictures of him and including them in the news broadcast, even though the forum is held in private premises. Where the plaintiff has not taken measures to protect his privacy, for example, by drawing the curtains, it is likely that the courts would hold that he has no reasonable expectation of privacy in the circumstances, in which case it is unnecessary for the defendant to plead implied consent.
|
Recommendation 4
We recommend that it should be a defence to an action for the intrusion tort to show that the plaintiff expressly or by implication authorised or consented to the intrusion. |
6.92 The LRC report on Interception of Communications recommends that a person should not be guilty of an interception offence if one of the parties to the communication consented to the interception. Consensual interception occurs when a party to a communication uses a device either to record the communication or to transmit the communication to a third party without the knowledge of the other party. The Commission concludes that consensual interception by law enforcement agencies does not require a warrant after noting the following arguments against regulation:[492]
(a) Many people record their conversations in order to protect their legitimate interests, particularly in commercial and business contexts. Imposing restrictions on the use of recording devices would fail to reflect contemporary practices. The use of speaker-phones has reduced the privacy expectation which a person would have when engaging in telephone conversations.
(b) The consent given by one of the parties to the conversation may be seen as no more than an extension of the powers of recollection of that party.
(c) The person who divulges any confidence in a conversation always runs the risk that his interlocutor will betray the confidence. The risk that an interlocutor will divulge the speaker's words and the risk that he will make a permanent electronic record of them are of the same order of magnitude.
(d) Consensual interception is less offensive than third party interception because the party giving the consent hears nothing that the other party did not wish him to hear.
(e) The recording device is used merely to obtain the most reliable evidence possible of a conversation in which the party giving the consent was a participant.
6.93 We examine below whether the following acts should be liable for the intrusion tort:
(a) recording of a telephone conversation by a party to the conversation;
(b) recording of a face-to-face conversation by one of the parties to the conversation;
(c) covert recording or interception of a telephone conversation by a third party with the consent of a party to that conversation; and
(d) covert listening to, or recording of, a face-to-face conversation by a third party with the consent of a party to that conversation.
6.94 We consider that a person who records a telephone conversation to which he is a party does not invade the privacy of the other party: he has neither intruded upon the solitude or seclusion of another nor has he intruded into the private affairs or concerns of another. A person in his position does not secretly listen to a conversation addressed to the ears of another.[493] The objection to surreptitious recording comes from the risk of unauthorised use or disclosure of the tape recording the conversation, rather than the invasion of something secret or private about the parties to the conversation.[494] The data protection principles in the PD(P)O, the law of breach of confidence, and the new tort of unwarranted publicity to be proposed in Chapter 7 should be sufficient to safeguard the parties' privacy interests in the contents of the conversation. Indeed, under DPP 2(1) and DPP 4, all practicable steps must be taken to ensure that: (a) personal data are accurate having regard to the purpose for which the personal data are, or are to be, used;[495] and (b) personal data held by a data user are protected against unauthorised or accidental access, processing or other use. Making one-party recording unlawful would lead to the result that an interlocutor could take shorthand notes of a conversation and reproduce them without liability, but would not be able to use a recording device to perform exactly the same function unless he had the consent of the other party.[496] If the other party is untrustworthy, an interlocutor can always safeguard his position by not releasing private information about himself to that other party. In our view, the distinction between surreptitious recording by a party to a telephone conversation, and making notes by a party during or after the conversation is a fine one. The difference between the two is not significant enough to draw a distinction in law. The mere fact that surreptitious recording is immoral to some people does not justify rendering it tortious under the law of privacy.
6.95 The above observations apply to face-to-face conversations as well as to telephone or other electronic communications. Hence, a journalist who uses a hidden device to record an oral conversation between himself and an interviewee would not be liable for intrusion under our proposals.[497] However, some people find surreptitious recording of face-to-faceconversations more objectionable than surreptitious recording of telephone conversations. They argue that although it is not uncommon in Hong Kong for people to use speaker-phones, recording machines and extension telephones by which a third party may hear a telephone conversation, an interlocutor does not normally expect the other party to record a face-to-face conversation by covert means. Whereas an interlocutor should take the risk that the other party on the telephone line is using a speaker-phone or has an extension telephone or a recording machine, he does not expect that the person he is talking to in a face-to-face conversation has a hidden microphone with him. Although we agree that surreptitious recording of face-to-face conversations is objectionable, the fact remains that there is no intrusion such as would render the recording an invasion of privacy. We think that broadly speaking, the arguments set out above apply to face-to-face conversations as well as to telephone conversations.[498]
6.96 A person who is not a party to a conversation is in a different position. He intrudes into the private affairs of a party to that conversation if he listens to the conversation without that party's consent. The fact that the intruder may have obtained the consent of the other party to the conversation does not alter the fact that the conversation is private to the interlocutor whose consent is lacking. Nevertheless, having regard to the views expressed in the Interception of Communications Report, the Sub-committee considers that a person who reads, listens to or records a communication to which he is not a party should not be liable for the intrusion tort if one of the parties to that communication authorises or consents to his doing so.
6.97 In Commonwealth of Pennsylvania v Rekasie,[499] T agreed to participate in an investigation of the defendant and consented to have his telephone conversations with the defendant taped by the police. The Supreme Court of Pennsylvania held that the defendant did not have a reasonable expectation that his telephone conversation would be free from consensual participant monitoring:
"Applying the Katz privacy expectation construct …, we find that while [the defendant] might have possessed an actual or subjective expectation of privacy in the telephone conversation with T, because of the nature of telephonic communication, it is not an expectation that society would recognize as objectively reasonable. A telephone call received by or placed to another is readily subject to numerous means of intrusion at the other end of the call, all without the knowledge of the individual on the call. Extension telephones and speakerphones render it impossible for one to objectively and reasonably expect that he or she will be free from intrusion. The individual cannot take steps to ensure that others are excluded from the call. Based upon these realities of telephonic communication, and the fact that [the defendant] could not reasonably know whether T had consented to police seizure of the contents of the conversation, we hold that [the defendant] did not harbour an expectation of privacy in his telephone conversation with T that society is willing to recognize as reasonable. …
Qualitatively different than a face-to-face interchange occurring solely within the home in which an individual reasonably expects privacy and can limit the uninvited ear, on a telephone call, an individual has no ability to create an environment in which he or she can reasonably be assured that the conversation is not being intruded upon by another party. On the telephone, one is blind as to who is on the other end of the line. Thus while society may certainly recognize as reasonable a privacy expectation in a conversation carried on face-to-face within one's home, we are convinced society would find that an expectation of privacy in a telephone conversation with another, in which an individual has no reason to assume the conversation is not being simultaneously listened to by a third party, is not objectively reasonable."[500]
6.98 However, the position under the Article 8 of the ECHR is different. In A v France,[501] G informed the police that Mrs A had hired him to murder someone and volunteered to make a telephone conversation to Mrs A's home to discuss possible methods for carrying out the crime. G then called Mrs A from the office of a police superintendent who recorded the conversation with a tape recorder. Mrs A later complained to the European Court of Human Rights, alleging that she was a victim of a violation of Article 8. The French Government pointed out that the recording had been made on the initiative and with the consent of one of the parties, while the conversations intercepted had dealt exclusively with matters - preparations of a criminal nature - which fell outside the scope of private life. Nonetheless, the Court noted that a telephone conversation did not lose its private character solely because its content concerned or might concern the public interest. It held that the interference in issue "undoubtedly" concerned Mrs A's right to respect for her "correspondence".
6.99 In MM v The Netherlands,[502] the police connected a tape recorder to the telephone of a crime victim, S, in order to allow her to tape incoming conversations with the suspect. The suspect later complained to the European Court of Human Rights that the recording constituted a violation of Article 8 of the ECHR. The Government argued that the police had merely indicated to S a way of obtaining evidence against the suspect. S had acted of her own free will and there had been nothing to prevent her from using a cassette tape recorder to record her telephone conversations with the suspect. The Court nonetheless held that there had been an "interference by a public authority" with the suspect's right to respect for his "correspondence". The Court was not persuaded by the Government's argument that it was ultimately S who was in control of events. To accept such an argument would be tantamount to allowing investigating authorities to evade their responsibilities under the Convention by the use of private agents.
6.100 If an individual can reasonably expect his privacy in his conversations to be protected from intrusion by law enforcement agencies, even though the agency concerned has obtained the consent of the other party to the conversation, then it is reasonable for him to expect that his privacy in his conversations will be protected from intrusion by private persons in similar circumstances.
6.101 In Commonwealth of Pennsylvania v Brion,[503] the police sent a confidential informer, wearing a wiretap, to a suspect's home to purchase illegal drugs. The informer entered the suspect's home and made the purchase while transmitting the conversation to the monitoring agent who recorded it. The Supreme Court of Pennsylvania held that an individual could reasonably expect that his right to privacy would not be violated in his home through the use of electronic surveillance. The fact that the suspect was engaging in illegal activity did not render his subjective expectation of privacy unreasonable. Such expectation against government intrusion also exists in a personal office and a hotel room paid for and occupied.[504]
6.102 In Allan v United Kingdom,[505] the police placed an informer who had been fitted with recording devices in a suspect's prison cell for the purpose of eliciting information from the suspect. The UK Government accepted that the use of covert recording devices on a fellow prisoner amounted to an interference with the suspect's right to private life under Article 8 of the European Convention, following Khan v UK,[506] which concerned the use of a covert listening device installed on the premises of the friend of a suspect.
6.103 In PG and JH v United Kingdom,[507] the police installed covert listening devices in the cells being used by the applicants and attached covert listening devices to the police officers who were present when the applicants were charged and when their antecedents were taken. The purpose was to obtain speech samples to compare with the tapes collected from a covert listening device installed in a suspect's flat. At the hearing before the European Court of Human Rights, the UK Government submitted that the use of the listening devices did not disclose any interference, as these recordings were not made to obtain any private or substantive information. They argued that the aural quality of the applicants' voices was not part of private life but was rather a public, external feature. In particular, the recordings made while they were being charged - a formal process of criminal justice, in the presence of at least one police officer - did not concern their private life.
6.104 The European Court disagreed. It noted that there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life". It pointed out that a permanent record had been made of the person's voice and it was subject to a process of analysis directly relevant to identifying that person in the context of other personal data. Though it was true that when being charged the applicants answered formal questions in a place where police officers were listening to them, the recording and analysis of their voices must still be regarded as concerning the processing of personal data about the applicants. The Court therefore concluded that the recording of the applicants' voices when being charged and when in their police cell amounted to an interference with their right to respect for private life within the meaning of Article 8(1) of the Convention.
6.105 The purpose of the recording in PG and JH v United Kingdom had been to obtain speech samples. If an individual's voice (as opposed to the private or substantive information conveyed by the voice) should be protected from covert recording by the police even though the recording was made with the consent of a party to the conversation, then it is arguable that an individual's face-to-face conversation with another person should also be protected from covert recording by a private person if the purpose of the recording was not to obtain speech samples but to collect private or substantive information disclosed in the conversation, whether or not the other party to that conversation has consented to the recording.
6.106 Having regard to the decisions of the European Court of Human Rights cited above, and bearing in mind that consent is already a defence, we consider that:
(a) the recording or interception of a telephone conversation by a person who is not a party to that conversation is an intrusion upon a party to that conversation for the purposes of the intrusion tort, even though another party to that conversation has consented to that person recording or intercepting the conversation; and
(b) the covert listening to, or recording of, a face-to-face conversation by a person who is not a party to that conversation is an intrusion upon a party to that conversation for the purposes of the intrusion tort, even though another party to that conversation has consented to that person listening to or recording that conversation.
6.107 We therefore consider it unnecessary to adopt Recommendation 10 in the Consultation Paper, which would enable a defendant to escape liability by relying on one-party consent. A defendant who is alleged to have covertly listened to, recorded or intercepted a telephone or oral conversation to which the plaintiff was a party should not have a defence on the ground that the listening, recording or interception was authorised or consented to by another party to the conversation. However, the defendant would be exempt from liability if the intrusion is justifiable under one of the defences proposed below, such as lawful authority and the prevention, detection or investigation of crime.
6.108 The Irish Law Reform Commission suggests that the exercise of a legal duty, power or right of the defendant should constitute a defence to an act of privacy-invasive surveillance. It recommends that the legislation should provide that it is a defence to an action under the surveillance tort or the disclosure tort to show that the defendant was (a) fulfilling a legal duty, or (b) exercising a legal power, or (c) defending or maintaining a legal right of the defendant; and that the surveillance or disclosure, as the case may be, was justified by and was not disproportionate to the legal interest pursued.[508] An example of a person acting under a legal duty would be a member of the police force lawfully obeying a lawful order of his superiors to carry out surveillance of a person in the interests of the prevention or detection of crime. The reference to a "legal power" would encompass the exercise of lawful police powers whether conferred by common law or by statute. An example of the defence based on a person's defending or maintaining a legal right of that person would be that of a person using reasonable means (including the engagement of an agent such as a private detective) to discover evidence for the purposes of civil proceedings to be brought or defended by that person.[509]
6.109 The defence of lawful authority is generally available in the law of torts. Where a statute or the common law authorises an act to be done which would otherwise be actionable in tort, no person should be able to maintain an intrusion action for the doing of that act.
|
Recommendation 5
We recommend that it should be a defence to an action for the intrusion tort to show that the act or conduct in question was authorised by or under any enactment or rule of law. |
6.110 Apart from consent and lawful authority, there are competing interests that may override the privacy interests of an individual. Article 8(2) of the European Convention on Human Rights gives us some indication as to the legitimate interests that would turn what would otherwise be an "arbitrary" interference with privacy into a non-arbitrary one. The Article requires that any restrictions imposed on the exercise of the right to privacy must be "in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."[510]
6.111 We agree that a defendant should have a defence if the purpose of an intrusion was to protect person or property, to prevent crime or unlawful conduct, or to safeguard national security or the security of Hong Kong. An individual's right to preserve his seclusion must give way to the operational needs of the law enforcement authorities. However, any interference with an individual's right to privacy by the law enforcement authorities must be both lawful and non-arbitrary under Article 14 of the HK Bill of Rights. In this connection, we note that the Commission's proposal to regulate the interception of communications by means of a judicial warrant system has yet to be implemented by the Administration.[511] The Interception of Communications Ordinance (Cap 532), which was introduced by wa