Civil Liability for Invasion of Privacy - [2004] HKLRC 1 (December 2004)

7.1 We begin this chapter by setting out some of the legal and jurisprudential arguments for providing a civil remedy for unwarranted publicity given to a matter concerning an individual's private life. Since the object is to protect "facts pertaining to an individual's private life" from publicity, an attempt will be made to define those facts, the publication of which would constitute an invasion of privacy. The notion of "publicity" (as opposed to "disclosure") will be employed so that gossiping or disclosure to a few persons would not be liable in tort. In recognition of the importance of freedom of expression, the new tort would protect individuals only from privacy-invasive publicity that is unwarranted. Hence, a defendant would not be liable if the publicity is in the public interest and can pass the proportionality test. To assist the courts in carrying out the balancing exercise, an attempt will be made to identify those interests which we think may override the privacy interests of the plaintiff. Whether an individual should be barred from recovery if the published facts are in the public domain is examined at the end of this chapter.

The need to provide a civil remedy for unwarranted publicity

7.2 General - Individual privacy may be invaded by unwarranted publicity given to facts concerning an individual's private life. Giving publicity to intimate information about an individual without his consent can prejudice his ability to maintain social relationships and pursue his career. For instance, publishing the fact that a woman is mentally retarded, a lesbian, a prostitute, a drug addict, a transsexual, illegitimate, a patient receiving treatment for breast cancer, or an attendant in a nightclub may make it difficult for her to maintain a normal relationship with her acquaintances and family members. The same impact would result as a consequence of a publication that discloses the fact that a man is impotent, infertile, unemployed, dependant on Government assistance, working in a funeral parlour, or earning his living by collecting nightsoil. A person may also want to keep to himself facts that tend to show him in a favourable light. Thus, an individual may not want others know that he is a prodigy, a subscriber to a philanthropic society, or a wealthy person. Individuals who are grief-stricken and public figures who have suffered a setback are particularly vulnerable to mental distress caused by unwanted publicity.

7.3 The principle of "inviolate personality" - Personal information is a lucrative commodity which has a large market. To some sections of the press, giving publicity to the private lives of newsworthy persons is a source of substantial profits. The press has a private commercial interest in publishing the details of the private lives of individuals. Warren and Brandeis noted as early as in 1890 that the press might subject ordinary citizens to mental pain and distress, "far greater than could be inflicted by mere bodily injury."[512] They argued that the protection afforded to thoughts, sentiments and emotions by the common law right to intellectual and artistic property, was, so far as it consisted of preventing publication, merely an instance of the enforcement of the more general right of the individual to be let alone. In their opinion, the principle which protected personal productions against publication was in reality not the principle of private property, but that of "inviolate personality".[513]

7.4 Control over the communication of personal information - Westin describes privacy as the "claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others".[514] Used in that sense, privacy could be defined in terms of the degree of control an individual has over his personal information; and an individual could be said to have lost privacy if information about him is disclosed without his consent for an unauthorised purpose. Although maintaining the confidentiality of personal information is one of the functions of privacy, Feldman argues that concentrating on secrecy misrepresents the nature of privacy by suggesting that it refers to cloistered or "hole-in-the-corner" activities. In his view, the right to disclose personal information or not is an aspect of privacy; controlling the flow of personal information can best be described not as secrecy but in terms of "selective disclosure".[515]

7.5 Values protected by a tort of unwarranted publicity - Feldman explains why controlling the disclosure of personal information is instrumentally valuable as a support for privacy interests:[516]

· It protects individual choice by preventing a person from being diverted from his chosen path lest others would be offended or might try to bring pressure to bear on him if his choice is made known to others.

· It enables people to indulge their personal preferences in sex, play, reading matter, religious worship, food or dress, in settings where they are not visible to others.

7.6 Privacy enables sheltered experimentation and testing of ideas without fear of ridicule or penalty. It also provides for an opportunity to alter opinions before they are made public.[517] Warren and Brandeis observed that "[i]f casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity."[518]

7.7 Argument from autonomy - It follows from the discussion above that if people are free to publish personal information with impunity, it would have the effect of interfering with an individual's autonomy by constraining his choices as to his private behaviour or affairs. Phillipson and Fenwick observe:

"much privacy-invading speech, by both directly assaulting informational autonomy and indirectly threatening the individual's freedom of choice over substantive issues, far from being bolstered by the autonomy rationale, is in direct conflict with it. The state, in restricting what one citizen may be told about the private life of another, is not acting out of a paternalistic desire to impose a set of moral values thereby, but rather to assure an equal freedom to all to live by their own values."[519]

7.8 Argument from democracy - Free speech theories also support the protection of individuals from unwarranted publicity on the basis that it is necessary for the furtherance of democracy. In the absence of legal protection in this area, individuals would be deprived of the freedom to engage in the free expression and reception of ideas and opinion, particularly those which question mainstream thoughts and values. Conversely, protecting private information from publicity would attract more talented individuals to serve the community and is conducive to the formation of public opinion and effective participation in government.

7.9 Existing law - Under the present law, the publication of true facts may be restrained on the basis that it constitutes a breach of confidence, contempt of court, or a breach of the Use Limitation Principle (DPP 3) in the PD(P)O, but these remedies cannot provide an adequate and effective civil remedy for the publication of true but harmful information about the private life of another.[520] Victims of unwarranted publicity cannot maintain an action for defamation if what was publicised is proved to be true. It matters not that the information is insulting or scurrilous. "Newspapers are free ... to rake up a man's forgotten past, and ruin him deliberately in the process, without risk of incurring tortious liability [for defamation]."[521] But truth may be more injurious than falsehood. The publication of true and accurate information about an individual can be deeply embarrassing and injurious to his feelings. Unless its publication can be justified in the public interest, personal information should be protected from unwanted publicity even though the information is true and accurate.

7.10 Personal Data (Privacy) Ordinance - Since DPP 3 of the PD(P)O restricts the use of personal data to that for which the data were collected, the Ordinance cannot restrain unwanted publicity if the published information has been collected by the publisher precisely for the purpose of publication. As far as media coverage is concerned, the publication in the media of personal data collected by a journalist is normally consistent with the purpose for which the data were collected.[522] The requirement that it is practicable for the identity of the individual to be ascertained from the data also poses a problem if his name or other forms of identification is not disclosed in the publication.[523] The PD(P)O is therefore not effective in restraining unwanted publicity given to personal information which is not a matter of genuine public concern.

7.11 ICCPR - In the opinion of the UN Human Rights Committee, the parties to the ICCPR have to take effective measures to ensure that "information concerning a person's private life does not reach the hands of persons who are not authorised by law to receive, process and use it, and is never used for purposes incompatible with the Covenant."[524] According to Nowak, the right to privacy under Article 17 of the Covenant encompasses "a right to secrecy from the public of private characteristics, actions or data".[525]

7.12 Nordic Conference - The Nordic Conference on the Right of Privacy declared that the unauthorised disclosure of intimate or embarrassing facts concerning the private life of a person, published where the public interest does not require it, should in principle be actionable.

7.13 Other jurisdictions - Many jurisdictions allow recovery for unwarranted publicity.[526] Giving publicity to private facts is a common law tort in India, South Africa and the US.[527] In Canada, the Uniform Privacy Act provides that "publication of letters, diaries or other personal documents of the individual" is prima facie a violation of privacy. In mainland China, unwanted publicity is actionable as an infringement of the right to reputation under the General Principles of Civil Law. The Draft Civil Code of the PRC protects an individual from invasion of privacy by unauthorised disclosure or publication of private information. As regards the Macao SAR, the Macao Civil Code protects individuals from revelation that falls within "the intimacy of private life". The Media Act in Austria prohibits disclosures about a person's intimate sphere when they imply an undesired exposure to the public in the absence of a strong public interest. It is an offence in Denmark to communicate to another person any information or picture about another which concerns his private life. The Civil Codes of France, Germany and Spain also grant relief for dissemination of facts pertaining to an individual's private life. The Civil Code of Italy provides that the publication of a picture of a person may be restrained if it causes prejudice to his dignity or reputation. The Italian courts recognise that publication of personal information in the absence of any overriding public interest is an infringement of the right of privacy. The Civil Code of the Netherlands imposes liability for publishing damaging private information about an individual in the absence of a good reason. The courts in Australia have yet to recognise an enforceable right of privacy but the Australian Law Reform Commission has recommended that a right of action for publication of "sensitive private facts" be created. Recently, the Irish Law Reform Commission recommends that unjustifiable disclosure or publication of information obtained by privacy-invasive surveillance or harassment be a tort. The Calcutt Committee in the UK was also satisfied that it would be possible to define a statutory tort of infringement of privacy which relates specifically to the publication of personal information.

7.14 Conclusion - We consider that a person who suffers damage as a result of another person giving publicity to a matter concerning his private life without justification should have a remedy at civil law.

Matters concerning an individual's private life

7.15 If the law should provide relief for the unauthorised publication of true facts because they relate to an individual's private life, we need to distinguish between facts which could be regarded as relating to an individual's private life and those which could not. Thomas Emerson suggests that in determining the scope of a tort of "public disclosure of private facts", the law should take account of factors which derive ultimately from the functions performed by privacy and the expectations of privacy that prevail in contemporary society. After stating that one such factor is the element of intimacy, he says that the tort should only protect matters relating to the intimate details of a person's life, ie, "those activities, ideas or emotions which one does not share with others or shares only with those who are closest. This would include sexual relations, the performance of bodily functions, family relations, and the like."[528]

7.16 In the opinion of Nowak, personal data the publication of which would be "embarrassing or awkward for the person concerned for reasons of morals" should enjoy legal protection. He gives the examples of "the publication of secretly acquired nude photos or personal writings (diaries, letters, etc.) or of revelations of a person's sex life, so-called anomalies, perversions or other (true or fabricated) peculiarities that would subject the person concerned to public ridicule."[529]

7.17 The way the tort of "public disclosure of private facts" is developed in the US also suggests that "private facts" comprise intimate details of an individual's life. The Restatement of Torts observes:

"Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of privacy, unless the matter is one of legitimate public interest."[530]

7.18 It is difficult to maintain that the disclosure of any personal information which a person would prefer to keep private constitutes an invasion of privacy. An individual's expectation of privacy must be reasonable in the circumstances. Raymond Wacks therefore suggests that any definition of "personal information" should refer both to the quality of the information and to the reasonable expectation of the individual concerning its use. He proposes that "personal information" be defined as consisting of "those facts, communications, or opinions which relate to the individual and which it would be reasonable to expect him to regard as intimate or sensitive and therefore to want to withhold or at least to restrict their collection, use, or circulation."[531]

7.19 Clause 19(1) of the draft Unfair Publication Bill in Australia provided that a person publishes "sensitive private facts" concerning an individual where the person publishes "matter relating or purporting to relate to the health, private behaviour, home life or personal or family relationships of the individual in circumstances in which the publication is likely to cause distress, annoyance or embarrassment to an individual in the position of the first-mentioned individual."

7.20 The Calcutt Committee in the UK proposed that if the privacy tort relating to the publication of personal information were to be created, "personal information" should be defined in terms of an individual's personal life, that is to say, "those aspects of life which reasonable members of society would respect as being such that an individual is ordinarily entitled to keep them to himself, whether or not they relate to his mind or body, to his home, to his family, to other personal relationships, or to his correspondence or documents."[532]

7.21 The UK Consultation Paper suggested that "personal information" may be defined as "any information about an individual's private life or personal behaviour, including, in particular, information about: (a) health or medical treatment, (b) marriage, family life or personal relationships, (c) sexual orientation or behaviour, (d) political or religious beliefs, or (e) personal legal or financial affairs".[533]

7.22 The Committee of Ministers of the Council of Europe recommended that personal data falling within any of the categories referred to in Article 6 of the Council of Europe Convention on Privacy 1981 should not be stored in a file generally accessible to third parties. Any exception to this principle should be strictly provided by law and accompanied by the appropriate safeguards and guarantees for the data subject.[534] The categories of data referred to in the Article are: (a) personal data revealing racial origin, political opinion or religious or other beliefs; (b) personal data concerning health or sexual life; and (c) personal data relating to criminal convictions.[535]

7.23 The European Union Data Protection Directive 1995 further requires Member States to prohibit the "processing" of "personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership" and "data concerning health or sex life" unless it falls within one of the prescribed exceptions.[536]

7.24 In Earl and Countess Spencer v United Kingdom,[537] a newspaper reported the second applicant's admittance to a private clinic which treated bulimia and alcoholism. The article was accompanied by a photograph of the applicant taken with a telephoto lens while she was walking in the grounds of the clinic. Since the applicant had been simply walking in the garden, the photograph in itself did not show a "private act". Nonetheless, the European Commission of Human Rights "would not exclude" the possibility that the absence of an actionable remedy in the UK in the particular circumstances of this case could be said to show a lack of respect for private life under Article 8 of the ECHR. However, the European Commission ruled that the UK Government had not breached Article 8 because the applicants had not exhausted the remedy of breach of confidence.

7.25 In the view of Eric Barendt, it would be possible for legislation to list the categories of matters which might be covered by the concept or right of privacy, such as "personal correspondence, diaries, intimate photographs, medical records, and so on". Such a list should not be exhaustive, so that the courts would be free, when appropriate, to hold that some item of information not covered by any of the explicit headings could be protected. Legislation should provide some guidance of this kind, rather than simply stipulate that the right to privacy is protected.[538]

7.26 The Privacy Sub-committee's Consultation Paper provisionally recommended that for the purposes of the tort of unwarranted publicity, matters concerning the private life of an individual should include information about his private communications, home life, personal and family relationships, private behaviour, health and personal financial affairs.

7.27 We note that whether or not a particular piece of information concerns the private life of an individual depends on the customs and culture of a community, and different communities have different understanding of what private information comprises. Hence although 64% of the respondents in a survey conducted in Hong Kong would object if information about their financial status was made publicly available to anyone who wanted it,[539] the financial affairs of an individual are not treated as private information in some countries. Likewise, although the religious belief of an individual is a piece of sensitive information in western countries, the result of that survey revealed that only 15% of the respondents would object if their religious views were publicly disclosed. In the light of the recent controversy over whether Falun Gong is an evil cult, the Hong Kong public would probably hold the view that membership of Falun Gong is a private fact that should be protected from publicity, even though they are relaxed about their religious beliefs.

7.28 We are doubtful whether it is practicable to specify the categories of information that reasonable members of society would consider ought to be protected from unwarranted publicity. Private life is a broad term not susceptible to exhaustive definition.[540] Categories of facts relating to an individual's private life are not fixed and may change over time. It is undesirable to give a definitive statement as to what facts relate to an individual's private life for the purposes of the tort.[541]

7.29 In this connection, we note that Article 130 of the Estonian Criminal Code made it an offence to degrade "another person's honour and dignity in an improper form". Although this offence was worded in general terms, the European Court of Human Rights found that it could not be regarded as so vague and imprecise as to lack the quality of "law" under the ECHR.[542] Likewise, section 78 of the Austrian Copyright Act[543] employs the imprecise wording of "legitimate interests," thereby conferring broad discretion on the courts, but the European Court did not rule that the law was not formulated with sufficient precision to enable the persons concerned to foresee, to a degree that was reasonable in the circumstances, the consequences of a given action. The Court acknowledged that laws were frequently framed in a manner that was not absolutely precise: such considerations were particularly cogent in relation to the publication of a person's picture, where the courts were called upon to weigh that person's rights, such as the right to respect for his private life, against the publisher's right to freedom of expression.[544]

7.30 We are mindful that investigative journalism is an important element in the exercise of press freedom. To ensure that the freedom of the press in publicising the fruits of investigative journalism would not be fettered by the new legislation, we shall recommend, in the latter part of this chapter, that the public interest defence and the defence of qualified privilege should be made available to the defendant in these actions.

7.31 As regards crimes, accidents and catastrophes, they are not normally matters concerning the private life of an individual. However, a distinction should be drawn between an event of public interest and the identity of the individual involved. While the former may be published with impunity, the latter should be protected from publicity if the purpose of keeping the public informed could be served without revealing the individual's identity.[545]

Publicity vs disclosure to a selected few

7.32 The tort of "public disclosure of private facts" in South Africa and the US requires that the disclosure of "private facts" be a "public disclosure" and not a private one. The requirement of "public disclosure" connotes publicity in the sense of communication to the public in general or to a large number of persons, as distinguished from one individual or a few. While the simple disclosure of personal information to a single person or to a small group of persons is not sufficient to support a claim, any publication in a newspaper or magazine or statement made in an address to a large audience would suffice.[546]

7.33 Under the law of defamation, a defamatory statement is actionable irrespective of the extent of publication. A question arises as to whether liability for unwarranted publicity should depend on the extent of publication. Bloustein thinks that it should be:

"The reason is simply that defamation is founded on loss of reputation while the invasion of privacy is founded on an insult to individuality. A person's reputation may be damaged in the minds of one man or many. Unless there is a breach of a confidential relationship, however, the indignity and outrage involved in disclosure of details of a private life, only arise when there is a massive disclosure, only when there is truly a disclosure to the public. ... The gravamen of a defamation action is engendering a false opinion about a person, whether in the mind of one other person or many people. The gravamen in the public disclosure cases is degrading a person by laying his life open to public view. In defamation a man is robbed of his reputation; in the public disclosure cases it is his individuality which is lost."[547]

7.34 Gossiping about private affairs of others is as old as human history. It is said to be "a basic form of information exchange that teaches about other lifestyles and attitudes, and through which community values are changed or reinforced."[548] The effect of gossip is trivial and limited because it is usually confined to friends and relatives. A person's peace and comfort would only be slightly affected if at all. But the publication of personal information in the press is of a different order. There is a substantial distinction between the second-hand repetition of the contents of a conversation and its mass dissemination to a large number of people.

7.35 Unwarranted publicity is objectionable even though the individual is portrayed in a favourable light and the public takes a sympathetic view of the facts disclosed:

"What the [plaintiffs in the public disclosure cases] complain of is not that the public has been led to adopt a certain attitude or opinion concerning them - whether true or false, hostile or friendly - but rather that some aspect of their life has been held up to public scrutiny at all. In this sense, the gravamen of the complaint here is just like that in the intrusion cases; in effect, the publicity constitutes a form of intrusion, it is as if 100,000 people were suddenly peering in, as through a window, on one's private life.

When a newspaper publishes a picture of a newborn deformed child, its parents are not disturbed about any possible loss of reputation as a result. They are rather mortified and insulted that the world should be witness to their private tragedy. The hospital and the newspaper have no right to intrude in this manner upon a private life. Similarly, when an author does a sympathetic but intimately detailed sketch of someone, who up to that time had only been a face in the crowd, the cause for complaint is not loss of reputation but that a reputation was established at all. The wrong is in replacing personal anonymity by notoriety, in turning a private life into a public spectacle."[549]

7.36 We agree that gossiping among friends and relatives or disclosure of information to a single individual or a few should not attract liability in tort. But if facts pertaining to an individual are disclosed to the public (or to a large number of persons) and the disclosure is not in the public interest, the individual concerned should have a remedy whether or not he is portrayed in a favourable light. We therefore conclude that the law should protect the private affairs of an individual from being dragged into public view unless the community has a legitimate concern over his affairs.

7.37 Publicity on the Internet - Internet users may take advantage of various communication and information retrieval methods, such as electronic mail, automatic mailing list services ("listservs"), "newsgroups", "chat rooms", and the World Wide Web. All these methods can be used to transmit sound, pictures and moving video images. In effect, the information superhighway turns all computer users into potential publishers and broadcasters by enabling them to communicate and share information with large groups of people at the touch of a button without incurring any significant cost. Publication is no longer the prerogative of newspaper or book publishers nor is broadcasting the prerogative of licensed broadcasters any more. Any person with a computer connected to the Internet can invade another person's privacy by rendering facts concerning the latter's private life accessible to a world-wide audience consisting of millions of viewers.

7.38 Since the Internet facilitates publication and forwarding of personal information to large groups of people upon the click of a button, the harm which might be caused to the individual by publishing sensitive information about him on the Internet is more substantial than the publication of the same piece of information in a local newspaper. The ease with which intimate details of our lives can be assimilated, processed and disseminated to a wide audience increases the risk and magnitude of loss of privacy. This is all the more so when the record on the Internet will remain accessible to all Internet users virtually indefinitely.

7.39 By creating a tort of unwarranted publicity, the law would not only provide a remedy for unwarranted publicity in the press, but would also provide a remedy where the facts have been posted on the Internet and the aggrieved individual can find out who the publisher is. Given that the plaintiff would have to show that the defendant knew or ought to have known that the publication was seriously offensive or objectionable to a reasonable person,[550] an Internet (or bulletin board) service provider who is merely an innocent distributor, would not be held liable for the acts of the Internet users. This would be particularly so if the service provider has no control over the storage of the offending posting or is not aware of its existence in the server. However, if the service provider is aware of the offending posting in its server and fails to respond to a reasonable request to remove or obliterate it from the website, then it is open to the Court to hold the service provider liable as a publisher.[551]

Offensiveness of the publicity

7.40 We consider that to be actionable, the publication in extent and content must be of a kind that would be seriously offensive or objectionable to a reasonable person of ordinary sensibilities. Distress, humiliation and embarrassment are key elements of the action. It is only when the publicity given to the plaintiff is such that a reasonable person would feel justified in feeling substantially hurt that he should have a cause of action. Qualifying the tort by the notion of offensiveness would check frivolous or blackmailing actions. Besides, a person should not be liable unless he knew or ought to have known that the publicity would be seriously offensive or objectionable to a reasonable person.

7.41 The Federal Supreme Court of Germany has held that even where there has been an unlawful invasion of the right of personality, the victim can claim damages for "immaterial harm" only when the gravity of the invasion makes such a solatium absolutely necessary. Whether such an invasion is sufficiently grave depends on the facts of the case, including:[552]

(e) the reasons for the defendant's conduct (or the motive of the defendant); and

7.42 The gravity of an invasion is also decisive in determining the quantum of compensation in France. Whether an invasion is grave or not depends on the following factors:[553]

(d) whether the defendant has been previously and firmly warned by the plaintiff that any invasion would not be tolerated; and

(e) the extent of the dissemination, which will determine both the extent of the harm caused to the plaintiff and the level of profits made by the defendant.

7.43 Wacks considers that the following considerations are relevant in assessing whether a publication is in the public interest:[554]

7.44 We agree that the legislation should specify the factors that the Court should take into account when determining whether the publicity would be seriously offensive or objectionable to a reasonable person. These factors may include:

(b) whether the defendant used unlawful or intrusive means to collect the facts;

7.45 In conclusion, a person who gives publicity to the details of another person's private life should be liable in tort unless that publicity can be justified in the public interest.

Recommendation 7

We recommend that any person who gives publicity to a matter concerning the private life of another should be liable in tort provided that the publicity is of a kind that would be seriously offensive or objectionable to a reasonable person of ordinary sensibilities and he knows or ought to know in all the circumstances that the publicity would be seriously offensive or objectionable to such a person.

(a) the complaint relates to a matter concerning the private life of the plaintiff;

(d) the defendant knew or ought to have known in all the circumstances that the publicity would be seriously offensive or objectionable to such a person.

Recommendation 8

We recommend that the legislation should specify the factors that the courts should take into account when determining whether the publicity would be seriously offensive or objectionable to a reasonable person.

7.47 The HK Democratic Foundation and the Bar Association supported the creation of the tort of unwarranted publicity. The Hong Kong section of JUSTICE did not agree. Their grounds of objection and our responses have been stated in previous chapters. The Privacy Commissioner commented that the potential liability arising from the new tort may pose a "constant threat" to the media. He expressed the view that, unlike the commonly understood tort of defamation, the exact boundary of the new tort was far from clear, making the fear of overstepping its limits all the more relevant. We consider that this risk is overstated, as we recommend below that the legislation should provide sufficient safeguards to press freedom by way of a public interest defence and a defence based on the notion of absolute and qualified privilege in the law of libel.

Defences to an action for unwarranted publicity

Consent

7.48 The defendant in an action for unwarranted publicity should not be liable if the plaintiff has waived his right of privacy or consented to the publicity. A person who engages in public affairs and public life to the extent that he draws public interest upon himself may be deemed to have implicitly consented to the publication of his picture.[555] We agree with the following observations made in American Jurisprudence:

"the existence of such a waiver carries with it the right to invade the privacy of the individual only to the extent legitimately necessary and proper in dealing with the matter which gave rise to the waiver. ... [B]y engaging in an activity of legitimate public interest, one's entire private life and past history do not necessarily become fair game for news media exploitation. There must be at least a rational, and arguably a close, relationship between the facts revealed and the activity to be explained, and the media should not be entitled to a no-holds-barred rummaging through the private life of an individual engaged in an activity of public interest under the pretense of elucidating that activity or the person's participation in it. ... Even in the case of a public officer or candidate for public office, the waiver of the right of privacy does not extend to those matters and transactions of private life which are wholly foreign to, and can throw no light upon, the question of his or her competency for the office, or the propriety of having it bestowed upon him or her."[556]

7.49 The French courts recognise that individuals have a personal and exclusive right to determine freely the extent to which their private matters can be made public. Thus, consent to a publication cannot automatically be deemed to imply consent to a new dissemination, although prior tolerance to publicity might diminish the amount of damages available.[557]

7.50 In our view, the consent given by the subject must be specific to the publication at issue, and not another one. It cannot derive from a previous consent that has been given for another purpose. The publication must not exceed, as to its form or object, the scope of his consent. The fact that a person has consented to the publication of certain details of his private life in the past does not necessarily mean that he has waived his right to complain for ever. The fact that a person has consented to being photographed does not necessarily mean that the photographer is authorised to publish the resulting photographs in the media. Consent to intrusion and consent to publication should be treated separately.

Recommendation 9

We recommend that it should be a defence to an action for unwarranted publicity to show that the plaintiff has expressly or by implication authorised or consented to the publicity.

Lawful authority

7.51 We consider that the defence of lawful authority should be available in actions for unwarranted publicity as well as actions for intrusion.

Recommendation 10

We recommend that it should be a defence to an action for unwarranted publicity to show that the publicity has been authorised by or under any enactment or rule of law.

Privileged disclosure

7.52 According to Warren and Brandeis, the right to privacy does not prohibit the communication of any private information when the publication is made under circumstances which would render it a privileged communication according to the law of defamation.[558] They thought that the action for invasion of privacy must be subject to any privilege which would justify the publication of a defamatory statement, reasoning that if there is a privilege to publish matter which is both false and defamatory, there must necessarily be the same privilege to publish what is not defamatory, or true. The Restatement of Torts provides that the rules on absolute privilege and conditional privilege to publish defamatory matter apply to the publication of any matter that is an invasion of privacy.[559] In other words, publication of a private matter does not violate the right of privacy when the publication would be a privileged communication under the law of defamation.[560]

7.53 Statements which are absolutely privileged such that no action will lie for them even though they are false and defamatory include the following: (a) any statement made in the course of and with reference to judicial proceedings by any judge, juror, party, witness, or advocate; (b) fair, accurate, and contemporaneous reports of public judicial proceedings published in a newspaper; and (c) any words spoken before, or written in a report to, the Legislative Council or a standing or select committee of the Council.[561] Qualified privilege attaches to the following statements if they are made honestly and without malice: (a) statements made in performance of any legal or moral duty imposed upon the person making it;[562] (b) statements made in the protection of a lawful interest of the person making it;[563] and (c) reports of legislative and certain other public proceedings.

Recommendation 11

We recommend that it should be a defence to an action for unwarranted publicity to show that the publicity would have been privileged had the action been for defamation

7.54 Both the HK Democratic Foundation and the Bar Association agreed to this recommendation.[564]

Publicity in the public interest

7.55 The right to claim relief for unwarranted publicity has to be reconciled with the Basic Law guarantees of press freedom and free speech. A balance has to be struck between the interest in protecting individual privacy and the interest in the dissemination of information which constitutes a matter of "public interest". Publication which is "in the public interest" is different from that which is merely interesting to the public. Expression which falls into the former category should receive the protection of Article 27 of the Basic Law because it involves matters of genuine concern to the public. By contrast, newspaper articles which describe the private lives of ordinary individuals are not protected by these provisions if they merely satisfy public curiosity and do not contribute to the formation of public opinion. The fact that the public may be interested in the private lives of others does not of itself give anyone a licence to intrude into the private affairs of an individual or to publish details of his private life.[565] A careful balance must be struck between the interests of expression and the interests of privacy where the details of private life are at issue.[566]

Mores test

7.56 The Restatement of Torts suggests that a "mores test" should be adopted to determine whether the matter publicised is a matter of legitimate public concern:

"In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. The limitations, in other words, are those of common decency, having due regard to the freedom of the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will be done to him by the exposure."[567]

7.57 As observed by David Anderson, the law applying the mores test is more interested in what is than what ought to be. The law protects privacy only to the extent it is customarily respected. It affords no protection where the conventions do not consistently condemn a particular type of disclosure, in which case the disclosure will not be sufficiently offensive to merit civil sanctions. Anderson comments that such an empirical approach takes little account of context and is "self-defeating, or at least self-eroding".[568] He reasons that if the law protects what the mores of a community view as private, then public expectation as to what is private are shaped by what is in fact made public; and the more privacy is invaded the less privacy is protected. Hence, if the public's appetite for titillating news and voyeuristic entertainment continue to increase and concerns about privacy relax, publications that were once considered seriously offensive would become socially acceptable with time.[569]

Newsworthiness

7.58 The publication of "newsworthy" information is held by the American courts to be privileged under the First Amendment to the US Constitution.[570] Some courts have adopted a three-pronged test to determine newsworthiness: (a) the social value of the facts published; (b) the depth of the intrusion into ostensibly private affairs; and (c) the extent to which the party voluntarily acceded to a position of public notoriety.[571] However, some courts have encountered difficulties in defining newsworthiness, mainly because the term may be used as either a descriptive or a normative term. The Supreme Court of California stated:

"If ‘newsworthiness' is completely descriptive - if all coverage that sells papers or boosts ratings is deemed newsworthy - it would seem to swallow the publication of private facts tort, for ‘it would be difficult to suppose that publishers were in the habit of reporting occurrences of little interest.' At the other extreme, if newsworthiness is viewed as a purely normative concept, the courts could become to an unacceptable degree editors of the news and self-appointed guardians of public taste."[572]

7.59 Joseph Elford elaborates on the problems of applying the newsworthiness analysis in determining liability for publication of private facts:

"For one, the newsworthiness analysis chills speech because it compels judges and juries to engage in ad hoc, fact-specific inquiries where they often disagree about whether speech enhances public debate even when they face almost identical sets of facts. The results cannot be made uniform because judges and jurors will always disagree over the best means to advance the democratic purpose of the First Amendment. Although some courts have attempted to harmonize their decisions by setting forth factors to guide the newsworthiness analysis, this analysis remains inherently unpredictable because the social view allows for different, and often contradictory, reasoning on how these factors should be employed. This inconsistent reasoning leads to incoherent results: Privacy is sometimes overprotected at the expense of speech, and, other times, speech is overprotected at the expense of privacy." [573]

7.60 We consider that a test of newsworthiness would be difficult to apply. Anything that is published in the press is by definition "newsworthy". All information is potentially useful in one way or another in forming attitudes and values. Such a test would therefore give exclusive weight to press freedom and fail to give sufficient guidance to the news media and the courts.[574] This probably explains why the American courts have been unable to agree on a definition of news and defer to the media's judgment of what is and is not newsworthy.[575] But if the courts defer to the media's judgments about newsworthiness, an individual's privacy would receive little protection from the public's insatiable demand for information.

7.61 In an attempt to elaborate on the newsworthiness test, Peter Gielniak proposes that the courts should look at the following factors when evaluating the newsworthiness of a publication:[576]

(a) What is the subject matter giving rise to the publication? Does it relate to the operations or administration of the government? If not, does the publication pertain to an issue that is relevant to the exercise of democratic rights or touch upon an issue of general societal concern?

(b) Is the plaintiff a public or private figure? The plaintiff's occupation, position in society and connection to a newsworthy event are relevant for this purpose.

(c) What facts were disclosed about the individual? If the disclosed facts were of a highly personal nature, courts should ask whether it was necessary to disclose that information.

(d) Did the facts disclosed contribute anything of value to society? If the facts merely add shock appeal, then this should weigh in favour of liability. But if the facts truly contribute something to society, the press should be allowed more leeway.

(e) What are the social policies implicated in the case? Courts should ask whether imposing liability would unduly restrain the press, and whether failure to impose liability would discourage other people from contributing their talents or skills to society for fear that their private lives would be exposed to the world.

Public figures

7.62 Article 17 of the ICCPR provides that everyone has the right to the protection of the law against arbitrary or unlawful interference with his privacy. This provision should be interpreted as being applicable to "everyone" without exception, including public figures who have the same right to the protection as anyone else.

7.63 Prosser defines a "public figure" as a "person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a ‘public personage'".[577] People who do not seek public attention, but are thrust into the spotlight because of events outside their control are not public figures by this definition. The definition given by the Council of Europe is similar: public figures are described as "persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain."[578]

7.64 In Germany, the courts divide persons into two categories for the purposes of privacy law, namely, "public persons" who are known as "persons of contemporary history", and "private persons" who are not "public persons".[579] The law further divides "public persons" into two sub-categories:

(a) An "absolute public person" is one who has yielded himself permanently to contemporary history. Such persons include heads of state, famous actors, scientists and sports stars. However, even "absolute" public persons may invoke privacy rights if there is an intrusion into the intimate sphere of their private lives.

(b) A "relative public person" is one in whom the public has an interest that is legitimate but limited as to extent and time. He is in the public eye for a specific reason or event, such as, for example, a criminal case (though it should be noted that the family members of a victim of crime are not relative public persons). Such a person attracts public attention only for a limited period of time, and then recedes into anonymity, when his right of privacy eventually revives. This category of public persons is accorded a higher level of protection than an "absolute public person".

7.65 In a case involving the illegal tapping by an unknown person of a telephone conversation between two leading political figures of an opposition party, the Federal Supreme Court in Germany held that everyone, including politicians in the limelight, was entitled to have their privacy respected.[580] Since the conversation was private and its subject matter was not of legitimate interest to the public, the plaintiffs were successful in obtaining an injunction to restrain a magazine from publishing the script of the conversation. The position in France is similar. The French law accords greater protection to "temporary" public figures as far as the publication of intrusive images and information is concerned. But even "permanent" public figures may invoke privacy rights if intimate information is published in the absence of clear public interest.[581]

7.66 It may be legitimate for readers to be informed of certain facts relating to the private lives of persons in public life. It is also true that some public figures sometimes contact the media and voluntarily supply details of their private lives to journalists. These public figures need media attention to maintain their celebrity status and preserve their fame. However, this does not lead us to the conclusion that the public is entitled to know everything about public figures. The private lives of public figures are entitled to protection except in those cases where they may have an effect on their public lives, or the public figures concerned have consented to the publication. The fact that an individual holds a public post or figures in the news does not deprive him of a right to a private life.[582]

7.67 The reasonableness of publishing the same set of facts pertaining to an individual's private life may depend on the subject matter under discussion and the status of that individual. Some facts relating to the private life of an individual who is active in public life may be published without liability even though the same may not be true as regards an ordinary individual.[583] Warren and Brandeis concluded:

"In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity."[584]

7.68 Voluntary public figures - In Woodward v Hutchins,[585] Bridge LJ said:

"those who seek and welcome publicity of every kind bearing on their private lives so long as it shows them in a favourable light are in no position to complain of an invasion of their privacy by publicity which shows them in an unfavourable light."

We have reservations adopting such a proposition. To suggest that public figures should be precluded from complaining about unwanted publicity because they have sought publicity on previous occasions would deny them the very control over personal information that is inherent in the notion of personal autonomy. As pointed out by Lindsay J, to hold that those who have sought any publicity lose all protection would be to repeal the application of the privacy provisions to many of those who are most likely to need it.[586]

7.69 In Tammer v Estonia,[587] an editor complained to the European Court of Human Rights that the Estonian courts had unjustifiably interfered with his right to freedom of expression by finding him guilty of insulting a former political aide, L, by describing L both as a mother who had not cared for her child and a person who had broken up someone else's marriage. The editor contended that L was a public figure in her own right, a fact which made her open to heightened criticism and close scrutiny by the press. L had played a role in the political life of Estonia by holding the position of counsellor to the Minister of the Interior as well as by being an active social figure and an editor of a popular magazine. She had also sought publicity by putting herself in the centre of a political scandal. However, the European Court noted that L had resigned from her governmental position in the wake of the scandal and held that the remarks related to aspects of her private life. Despite L's continued involvement in politics, the Court did not find it established that the impugned remarks were justified by considerations of public concern or that they bore on a matter of general importance.[588]

"A person who by his or her accomplishments, fame, or mode of life, or by adopting a profession or calling which gives the public a legitimate interest in his or her doings, affairs, and character, may be said to have become a public personage, thereby relinquishing at least a part of his or her right of privacy. ... [A]ny person who engages in a pursuit or occupation which calls for the approval or patronage of the public submits his or her private life to examination by those to whom he or she addresses his or her call, to the extent that may be necessary to determine whether it is wise and proper to accord him or her the approval or patronage which he or she seeks."[589]

"One who voluntarily places himself in the public eye, by engaging in public activities, or by assuming a prominent role in institutions or activities having general economic, cultural, social or similar public interest, or by submitting himself or his work for public judgment, cannot complain when he is given publicity that he has sought, even though it may be unfavourable to him. So far as his public appearances and activities themselves are concerned, such an individual has, properly speaking, no right of privacy, since these are no longer his private affairs."[590]

7.72 We consider that the private character and conduct of a person who fills a public office or takes part in public affairs may be a matter of public interest insofar as it relates to or tends to throw light on his fitness to occupy the office or perform the duties thereof. The mere fact that a person is an artiste or is engaged in some occupation which brings him into public notice is not of itself enough to make his private life a matter of public interest. Publicity given to an individual's private life concerning a matter which is wholly unconnected with his fitness for a public office or profession or his ability to discharge public or professional duties should not come within the scope of this defence.[591]

7.73 Accused persons - Press reporting of criminal proceedings contributes to their publicity and is consonant with the requirement that hearings be public. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them. This is all the more so where a public figure is involved, such as a politician or a former member of the Government.[592] In Craxi (No 2) v Italy,[593] the applicant was a former Prime Minister charged with certain offences. There were also criminal proceedings pending against him. The police intercepted his telephone calls. The Prosecutor filed the transcripts with the court registry and asked that they be admitted as evidence against him. The content of certain intercepted conversations was subsequently published by private newspapers. The European Court of Human Rights held that:

"public figures are entitled to the enjoyment of the guarantees set out in Article 8 of the Convention on the same basis as every other person. In particular, the public interest in receiving information only covers facts which are connected with the criminal charges brought against the accused. This must be borne in mind by journalists when reporting on pending criminal proceedings, and the press should abstain from publishing information which [is]likely to prejudice, whether intentionally or not, the right to respect for the private life and correspondence of the accused persons … . The Court observes that in the present case some of the conversations published in the press were of a strictly private nature. They concerned the relationships of the applicant and his wife with a lawyer, a former colleague, a political supporter and the wife of Mr Berlusconi. Their content had little or no connection at all with the criminal charges brought against the applicant. … In the opinion of the Court, their publication by the press did not correspond to a pressing social need. Therefore, the interference with the applicant's rights under Article 8 § 1 of the Convention was not proportionate to the legitimate aims which could have been pursued and was consequently not ‘necessary in a democratic society' within the meaning of the second paragraph of this provision."[594]

7.74 Involuntary public figures - There are also individuals who have not sought publicity or consented to it, but through their own conduct or by force of circumstances, have become part of an event of public concern. Those who have committed crime and those who are unfortunate enough to be victims of crime or accidents may therefore become a legitimate subject of public interest.[595] However, the mere fact that an individual is in the public eye does not provide a carte blanche to expose all aspects of his private life before the whole world. Apart from the social value of the public event involved, the public interest in publishing the facts concerning an individual's private life also depends on the extent to which that individual played an important role in the event; hence, on a comparison between the information revealed and the nature of the event that brought him to public attention.[596]

7.75 The public interest defence requires the existence of a logical nexus between the plaintiff and the matter of public interest. There must also be a logical relationship between the events or activities that brought the individual into the public eye and the private facts disclosed.[597] The public's right to know will be outweighed by the privacy interest if the information revealed ceases to have any substantial connection to the subject matter in which the public interest resides.[598] Intimate revelations might not, in a given case, be justified as being in the public interest if they bear only slight relevance to the subject.[599] The fact that the publication is lurid or indecent, or is primarily designed to appeal to prurient interest or sensationalism, is a factor to be taken into account.

7.76 Former public figures - The position in the US as summarised by the Restatement of Torts is as follows:

"The fact that there has been a lapse of time, even of considerable length, since the event that has made the plaintiff a public figure, does not of itself defeat the authority to give him publicity or to renew publicity when it has formerly been given. Past events and activities may still be of legitimate interest to the public, and a narrative reviving recollection of what has happened even many years ago may be both interesting and valuable for purposes of information and education. Such a lapse of time is, however, a factor to be considered, with other facts, in determining whether the publicity goes to unreasonable lengths in revealing facts about one who has resumed the private, lawful and unexciting life led by the great bulk of the community. This may be true, for example, when there is a disclosure of the present name and identity of a reformed criminal and his new life is utterly ruined by revelation of a past that he has put behind him. Again the question is to be determined upon the basis of community standards and mores. Although lapse of time may not impair the authority to give publicity to a public record, the pointing out of the present location and identity of the individual raises a quite different problem."[600]

7.77 We consider that the publication of the existing whereabouts and other aspects of the private life of a former public figure cannot be justified if it is merely the past event which is a matter of present public concern. While the past event involving a former public figure could be raised by the press if it is a matter of public knowledge, his private life after he has decided to retire into a life of seclusion should not be exposed unless it has become a matter of present legitimate concern to the public or his identity has been concealed in the reports.

Concluding remarks

7.78 In determining whether the publicity could be justified on the grounds of public interest, we should look to the nature of the subject matter as well as the status of the individual in relation to whom the facts are published. The mere fact that the individual is a public figure is not conclusive. We need to go further and examine whether the published facts are matters of genuine public concern. We consider that the public interests in privacy and free speech can be harmonised by providing a defence to an action for unwarranted publicity where the publicity was in the public interest.[601]

Recommendation 12

We recommend that it should be a defence to an action for unwarranted publicity to show that the publicity was in the public interest.

Principle of proportionality

7.79 The German courts have developed a form of proportionality analysis to resolve the conflicts between the right of personality and other competing public interests. The German Constitutional Court is of the view that the particular interests must be weighed to determine "whether the pursuit of the public interest merits precedence generally and having regard to the features of the individual case, whether the proposed intrusion of the private sphere is required by this interest in this form and extent, and whether it is commensurate with the importance of the case."[602] The European Court of Human Rights also accepted that the more intimate the aspect of private life which is being interfered with, the more serious must be the reasons for interference before the latter can be legitimate.[603]

7.80 John Craig proposes that the following factors should be taken into account when applying a proportionality analysis for the purpose of determining the reasonableness of a "public exposure":[604]

(a) the defendant's objective (ie, what did the defendant hope to accomplish by placing the plaintiff in the public spotlight);

(b) alternatives available to the defendant (ie, whether or not the impugned publication could reasonably have been made without the alleged privacy invasion, or with a less serious exposure of the plaintiff's private life);[605]

(d) the severity of the privacy invasion (ie, the value, or importance, of the private object that has been compromised by a public exposure).[606]

7.81 The Irish Law Reform Commission agrees that even if the publication of details of a person's private life can be justified in the public interest, its extent or detail must not have exceeded what was required to satisfy the public interest. It comments that the legitimate public interest in knowing certain facts about an individual may be satisfied by information of a more or less general nature without going into the intimate details of that individual's private life. It recommends that the public interest defence should be disallowed, not in its entirety, but only to the extent that the publication was excessive. The bill drafted by the Irish Commission therefore incorporates the proportionality principle by way of a proviso to the public interest defence.[607]

7.82 The Bar Association commented that not all matters of public interest would automatically justify giving publicity to an individual's private life. The Court might still have to balance the conflicting claims. Accordingly, they proposed that the public interest defence should be formulated in such a way that the defendant shall not be liable if the publicity is a necessary and proportionate response for the protection of the public interest. We agree that the proportionality principle should be expressly incorporated into the public interest defence to protect individuals against excessive disclosure.

(b) the extent to which the facts have been disseminated (ie, whether the facts have been disclosed to the whole population or to a small group of people);

(d) the alternatives available to the defendant to achieve the legitimate object of the publicity (ie, whether or not the object could be achieved without giving publicity to the facts about the plaintiff, or with a less serious exposure of his private life, or without providing such particulars as would enable the recipients to identify the plaintiff).[608]

Legitimate aims of giving publicity to an individual's private life

7.84 The HK Journalists Association was concerned that "middle-class and well-educated judges" might adopt a very narrow view of what constituted a matter of public interest and might make rulings which restrain what journalists would consider to be legitimate investigative reporting. In order to address the concern that a widely phrased defence of public interest would create uncertainty, we consider that the legislation should give some guidance by providing that the following are presumed to be matters of public interest for the purposes of the publicity tort:[609]

(b) the prevention or preclusion of unlawful or seriously improper conduct;[610]

(d) the fitness of a person for any public office or profession held or carried on by him, or which he seeks to hold or carry on;[611]

(e) the prevention of the public being materially misled by a public statement made by the plaintiff;[612]

7.85 The Hospital Authority proposed that the protection of "private health", as opposed to "public health", should be a specific defence to cover health treatment for an individual. Since the disclosure of information about a patient to a hospital or clinic would not constitute publicity, we consider that it is unnecessary to add the defence proposed by the Authority.

7.86 Misleading the public - Although most individuals prefer to keep private their dishonest behaviour and wrongdoing, "the cohesiveness and durability of any social organisation depends upon the ability of its members to evaluate each other accurately and to use their observations to exert, modify, or develop social controls."[614] Zimmerman therefore argues that a person who reveals the truth about another's character helps to preserve the foundations of the society.[615] Richard Posner also observes that many people seek privacy because they want to conceal discreditable information about themselves, thereby misleading those with whom they have dealings; and that even if the information is not discreditable, they may wish to keep it secret in order to exploit any misapprehensions which others may have about them. He therefore contends that legal protection should not be accorded to discreditable information about an individual and to personal information which, if revealed, would correct misapprehensions that the individual is trying to exploit. Restricting the disclosure of this information "is no better than that for permitting fraud in the sale of goods".[616]

7.87 We agree that if a person who is seeking or holding public office misleads the public by telling them a lie about his private life which is relevant to his public role, the press should be free to report the truth in the media. Hence, if a candidate for political office stands for family values and advocates the sanctity of marriage, the press should not be held liable for disclosing the fact that he keeps a mistress. The protection of privacy should not be abused by an individual who is guilty of double standards by suggesting to the public that he is a pillar of virtue and rectitude when the truth reveals that he is a person of dubious character. We therefore consider that the prevention of the public (or some section of the public) being materially misled by a statement previously made public by the plaintiff is a matter of public interest the publication of which should not render the publisher liable for the publicity tort. This formulation is wider and more favourable to the press than that of prevention of "public dishonesty", which was deemed to be a matter of public interest in Recommendation 19(b) of the Consultation Paper.[617] Under the new proposal, a defendant who could show that the plaintiff has materially misled the public would have a defence notwithstanding that the plaintiff has not been dishonest in doing so.

Recommendation 13

Without limiting the generality of Recommendation 12, we recommend that any publicity given to a matter concerning an individual's private life should be presumed to be in the public interest if the publicity was necessary for:

(a) the prevention, detection or investigation of crime;

(b) the prevention or preclusion of unlawful or seriously improper conduct;

(d) establishing whether the plaintiff was fit for any public office or profession held or carried on by him, or which he sought to hold or carry on;

(e) the prevention of the public being materially misled by a public statement made by the plaintiff;

(f) the protection of public health or safety; or

(g) the protection of national security or security in respect of the Hong Kong SAR

and was proportionate to the legitimate aim pursued by the defendant.

7.88 We should add that although the names of individuals may be public information, this does not entitle a publisher to name the individual when covering his private life in an article. Even where particular facts about an individual's private life can be published on the ground that they relate to a matter of public interest, the individual's identity should be treated separately and should not be publicised if the legitimate aim can be achieved without revealing his identity.[618]

7.89 Public responses to Consultation Paper - Noting that "news reporting" was not specifically identified in the Consultation Paper as one of the legitimate concerns of the public, the Privacy Commissioner suggested that further consideration be given to making some allowance for the media under the publicity tort. In our view, by allowing publications that can be justified in the public interest and by prescribing the publications that are prima facie in the public interest, fraudsters, politicians and other public figures would not be able to escape from public scrutiny by relying on the publicity tort.

7.90 The Bar Association was of the opinion that "public interest" was too broadly defined in the Consultation Paper and might therefore be subject to abuse by the law enforcement agencies and the press. They proposed to confine the definition of "public interest" to a few well recognised instances, without at the same time limiting the generality of the general defence of public interest, namely: (a) the prevention, detection of crime or investigation of crime; (b) the ability and fitness of a person to discharge his public office; and (c) the protection of public health or safety. In effect, the Bar was saying that national security and security in respect of Hong Kong, the prevention of unlawful or seriously improper conduct, and the prevention of "public dishonesty" should be excluded.

7.91 We are inclined to adopt a generous approach in defining matters of public interest. It is essential that the press has enough breathing space to serve the functions of the press clause in the Basic Law. Although the scope of the public interest defence is wide, the principle of proportionality would ensure that the defence would not be abused by the press and the law enforcement agencies. We are satisfied that the proposal to create a public interest defence would safeguard press freedom and the public's right to know.

Facts concerning an individual's private life that are available in the public domain

7.92 The tort of "public disclosure of private facts" in the US protects facts that are "private, secluded or secret" but not information that is already known to the public.[619] The Restatement of Torts reads:

"There is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public. Thus there is no liability for giving publicity to facts about the plaintiff's life that are matters of public record … . Similarly, there is no liability for giving further publicity to what the plaintiff himself leaves open to the public eye. Thus he normally cannot complain when his photograph is taken while he is walking down the public street and is published in the defendant's newspaper. Nor is his privacy invaded when the defendant gives publicity to a business or activity in which the plaintiff is engaged in dealing with the public."[620]

7.93 The Sub-committee concluded in the Consultation Paper that the publisher should not be held liable if he could show that the private facts could be found in a public record which was readily accessible to the public, or otherwise has come into the public domain through no fault of his own. They were of the view that there should generally be no restrictions on the publication of facts that are readily accessible to the public through a public library or a public registry.

7.94 The HK Journalists Association argued that prior publication should be a defence in all circumstances, even if the information had been culled from newspaper clippings several years before re-publication. In their view, the argument that this defence should apply only to prior publication in a public record "which was readily accessible to the public" threatens the activities of investigative journalists who may have the time and resources to delve into archives which are not so readily accessible to the public. The only possible exception they accept is spent convictions.

7.95 We consider that the approach adopted in the American Restatement and the Consultation Paper does not accord with the legitimate privacy expectation of an individual. The mere fact that the facts in question are open to public view or can be found in a public record does not necessarily entitle a person to give further publicity to the facts. We explain below how we come to such a conclusion by examining the privacy interests of an individual in three types of situations:

Facts available in public records

7.96 We start our discussion by identifying the privacy risks of court proceedings. As evidence concerning the medical records, employment records, financial information and tax returns of litigants and third parties may be adduced in legal proceedings, material disclosed in civil and criminal proceedings contains a vast amount of private and sensitive information that is available as a matter of public record. Examples of these risks can be found in bankruptcy, family and negligence cases. The risk is particularly acute where the personal information revealed in the proceedings relate to third parties who are not able - or are not aware how - to protect their privacy by applying for a court order.[621]

7.97 In Cox Broadcasting Corp v Cohn,[622]the US Supreme Court held that the state may not impose sanctions on the accurate publication of the name of a rape victim obtained from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection: First Amendment protection must be extended to coverage of material disclosed in court records available for public inspection because of the importance of public supervision of government affairs.

7.98 However, Karen Rhodes argues that publication of material derived from court records often does little to advance the public's interest in understanding and supervising the conduct of public affairs. She says that a distinction should be drawn between coverage that merely uses court records as a source of information in which the public would otherwise have no legitimate interest, and coverage providing information that truly sheds light upon the performance of the judiciary or upon the conduct of public business more generally.[623]

7.99 Rhodes further argues that even if publication of information about court proceedings advances the public's supervisory interests, it is not clear that the First Amendment requires absolute protection for courtroom coverage to vindicate those interests. She points out that the media in the US may be liable for publishing defamatory material disclosed in a court proceeding if they fail to give a "fair and accurate" report of the proceeding as a whole. We may mention in passing that under section 13 of the Defamation Ordinance (Cap 21), only a "fair and accurate" report of open court proceedings that is published "contemporaneously" and does not contain any "blasphemous or indecent matter" is absolutely privileged for the purposes of defamation law. In the view of Rhodes, defamation law stands for the proposition that First Amendment does not require that public-supervisory interests in courtroom proceedings be protected by a categorical privilege for publication of any material derived from such proceedings.[624] The broad defence of "legitimate public concern" in the American "public disclosure" tort already protects any publication that is truly concerned with monitoring the conduct of public business. By constitutionally protecting all publications of matters of public record rather than simply those publications truly advancing public-supervisory interests, the Cohn decision serves only to protect those who publish matters of public record without any nexus to the supervision of government affairs.[625]

7.100 The Court in the Cohn case also asserted that restraining publication of information derived from court proceedings or public records would have an impermissible chilling effect upon the press. In the view of Rhodes, insulating the press from the chilling effect of tort liability only in the context of public records seems unwarranted:

"A critical observation suggests that the supervisory interests in public-record information are not more deserving of constitutional protection than the interests that inhere in information from other sources: the very same interests may be involved in both situations. If the interest invoked to support First Amendment protection is the public's interest in knowing about and supervising public affairs, that interest is implicated by all information regarding the conduct of public business, not simply that business that the government has made a matter of public record. (In fact, it is arguably the public's interest in non-public-record government affairs that demands special First Amendment protection for the press because it is precisely in this area that the government may be most in need of public supervision.) Because identical supervisory interests may inhere in public-record and non-public-record information, the variance in constitutional protection based precisely on the significance of these interests is questionable."[626]

7.101 With regard to the assertion that material derived from court records is inherently a matter of legitimate public concern because the public has an interest in the workings of the judiciary, Rhodes suggests that its factual basis is "highly suspect":

"much published information derived from court records bears no logical connection to the functioning of the judiciary. If the goal is to protect disclosures that truly shed light upon the administration of justice, the rule protecting all publications whose source is a court record is grossly overinclusive. To advance the asserted interest, the tort law need go no further than protecting matters of legitimate public concern; relying upon a direct application of this element rather than upon a blanket protection for disclosures of public-record material would allow courts to separate those publications that truly advance the public interest in knowledge about government administration (as well as those publications that are matters of legitimate public concern for other reasons) from those publications that are truly matters of no legitimate public concern."[627]

7.102 In Doe v City of New York,[628] the plaintiff alleged that the employer refused to hire him because he was a single gay man suspected of being infected with HIV. He filed a discrimination claim with the New York City Commission on Human Rights. The Commission issued a press release about the resolution of the case. The plaintiff maintained that the press release contained sufficient information to enable people to identify him as the claimant, thereby exposing him to discrimination, embarrassment and extreme anxiety. The district court held that the constitutional right to privacy did not extend to matters of public record, and once the plaintiff filed his complaint with the Commission, his HIV status became a matter of public record. This decision was reversed by the US Court of Appeals, which held that the plaintiff possessed a constitutional right to privacy regarding his HIV status. His HIV status did not, as a matter of law, automatically become a public record when he filed his claim with the Commission and entered into a conciliation agreement. The Court called "Orwellian" the notion that all information provided to the Commission automatically becomes a public record, even when the complainants go to the Commission because of violations of the right to privacy. It remanded the case to the district court to determine if the city had a substantial interest in the disclosure of the conciliation agreement that outweighed the plaintiff's interest in confidentiality.

7.103 In US Department of Justice v Reporters Committee for Freedom of the Press,[629] the respondents contended that since events summarised in a "rap sheet"[630] had been previously disclosed to the public, the subject's privacy interest in avoiding disclosure of a federal compilation of these events approached zero. The US Supreme Court rejected such a "cramped notion" of privacy:[631]

"To begin with, both the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another.[632] Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. According to Webster's initial definition, information may be classified as ‘private' if it is ‘intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.' … [T]he issue here is whether the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by disclosure of that information."[633]

7.104 The Court observed that the very fact that information is hard to obtain altered the privacy interest involved: "Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information."[634] Commenting on the privacy interests in information which has already appeared in public records, the Court pointed out that "the common law recognised that one did not necessarily forfeit a privacy interest in matters made part of the public record, albeit the privacy interest was diminished and another who obtained the facts from the public record might be privileged to publish it."[635] In particular, an ordinary citizen has a privacy interest in the aspect of his criminal history that may have been wholly forgotten.[636] "The privacy interest in maintaining the practical obscurity of rap-sheet information will always be high."[637] The Court therefore held that disclosure of the contents of the rap sheet to a third party could reasonably be expected to constitute an unwarranted invasion of privacy within the meaning of Exemption 7(C) of the Freedom of Information Act. The Court's conclusions are applicable to privacy law's definition of a "private" fact, insofar as the decision recognises that "privacy is not properly conceived of in terms of theoretical degrees of accessibility, but instead demands consideration of ‘the practical obscurity' of certain facts."[638]

7.105 In the English case of R v Chief Constable of North Wales, ex parte AB,[639] the applicants had served long sentences for serious sexual offences against a number of children. Although information relating to the applicants' convictions and sentences, having been pronounced in open court, was in the public domain and as such subject to no duty of confidence, Lord Bingham CJ stated that he was prepared to accept that disclosure by the police of such information could in principle amount to an interference with the applicants' exercise of the right to privacy under the ECHR.[640] Buxton J also considered that a wish that certain facts in one's past, however notorious at the time, should remain in that past is an aspect of the subject's private life sufficient at least potentially to raise questions under Article 8 of the European Convention.[641]

7.106 In the New Zealand case of Tucker v News Media Ownership Ltd,[642] the plaintiff sought donations from the public to pay for a heart transplant operation. He applied for an interim injunction when he found out that a magazine might publish details of his previous convictions, which included convictions relating to indecency. The Court of Appeal granted an interim injunction against the publisher, suggesting that a public fact such as a previous conviction could over time become a private fact.

7.107 The judiciary in the US recognises that there is a common law right that judicial records and documents are open for public inspection. However, the right to inspect and copy judicial records is not absolute. "Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes."[643] The decision to deny public access involves a balance between the presumption in favour of access, and the privacy or other interests that may justify restricting access. As examples of documents to which access has been denied, the US Supreme Court referred to records used to gratify spite or promote scandal and files that might "serve as reservoirs of libellous statements for press consumption."[644]

7.108 American courts recognise the privacy interest inherent in the non-disclosure of certain information even where the information may have been at one time public. In weighing the public interest in releasing personal information kept by a government agency against the privacy interests of individuals, the US Supreme Court defined the public's interest as "shedding light on the conduct of any Government agency or official",[645]rather than acquiring information about a particular private citizen. The Court also noted that the fact that "an event is not wholly ‘private' does not mean that an individual has no interests in limiting disclosure or dissemination of the information."[646] Although it may be pointless to attempt to protect privacy by restraining further publication once a private fact has been made public, there is a great difference between information which is publicly accessible in a very limited descriptive sense and information which has been widely publicised by the mass media.[647] It is arguable that an individual has a privacy interest in averting any harm that may result from wider exposure of information falling in the first category if it relates to his private life.

7.109 We agree that personal data recorded in public records are to some extent public if the records are open for public inspection. However, the fact that the records are accessible to the public does not make the data a matter of public knowledge. Accessibility to public records is generally limited for practical reasons. The right to gain access to the records in a public register often depends on physical presence at the registry and requires the payment of a fee. The way the data are recorded and indexed also requires prior knowledge of certain relevant details before a search can be carried out. Furthermore, the Personal Data (Privacy) Ordinance restricts the use of public register personal data collected by a member of the public to the lawful purpose for which the data were collected by him. Hence, much personal information contained in public registries is and remains unknown to the general public. The "practical obscurity" of personal information in public records is something that ought to be taken into account by the law.[648] It is one thing to make information in a public record available to a member of the public who has a legitimate interest in receiving the information; it is another to give publicity to such information in the absence of any public interest. Despite the public nature of the record, the individual concerned retains a privacy interest in having the information protected from unwarranted publicity.

7.110 In our view, the law should aim at opening government records to public inspection without compromising privacy interests. As suggested by Paton-Simpson, if the purposes of public access are adequately served by the opportunity for inspection and there is no further legitimate purpose served by media coverage, then the balance of interests justifying public inspection may not extend to mass communication.[649] She thinks that a better approach would be to abandon any special exemption for public records and simply ask the same questions as for other information, ie, whether the information is of legitimate public concern, and to what extent the information is already public knowledge.[650] She argues that by drawing a distinction in terms of privacy between accessibility and publication, personal information in public records can be protected from mass dissemination and yet be accessible to anyone who is motivated enough to specifically seek it out. Hence, the privacy interests in public records can be protected without unduly restricting freedom of information. Any impact such an approach would have on freedom of the press would be counterbalanced by the introduction of a defence based on the public interest of the disclosure.

7.111 We agree with the views of Paton-Simpson in the foregoing paragraph, except that giving publicity to facts pertaining to an individual's private life which are obtained from a public registry should not attract civil liability if the publicity was consistent with the purpose for which the facts were made public by the registry. Where the publication of facts is consistent with the purpose for which they were made public by a registry, this should not fall within the scope of the publicity tort. In the light of the above observations, and given that we have recommended that publications in the public interest should be exempt from liability, it is unnecessary to exempt public records as originally proposed in the Consultation Paper.

Facts concerning an individual's private life in public places

7.112 The Consultation Paper stated that information about activities and incidents which occur in a public place is in the public domain; and an individual has no privacy in personal information about himself which is in the public domain. After further deliberation, we come to the view that the mere fact that the facts are revealed in a public place or have previously been disclosed to others does not necessarily preclude recovery under the publicity tort.

7.113 Étienne Picard points out that the fact that a person belongs to a church and practices a particular religion, or is a member of a trade union, an association, or a political party may bring into play privacy rules even though these facts may also be in the public domain. In his view, private life implies some external and public dimensions; privacy is not confined within the circle of intimate private life. The relative publicity characterising these activities should not be increased by others unless the subject accepts or tolerates this.[651] Such a view is consistent with that of the European Court of Human Rights in the Niemietz case, which held that respect for private life must comprise the right to establish and develop relationships with other human beings.[652]

7.114 In the case involving the publication of photographs of Princess Caroline of Monaco having dinner in a secluded part of a garden restaurant, the German Federal Supreme Court held that even though the photographs were taken in a restaurant which was a public place, the publication of the photographs violated her private sphere because she was then in a secluded place and had manifested a desire to be left alone. The spatial zone of legal protection of privacy in Germany therefore extends to public places that are secluded from the general public, such as a gymnasium or a room in a restaurant.[653]

7.115 Unlike Germany, the protection of private life under the Civil Code in France does not depend on a spatial definition of what "private" means. According to Matthias Prinz, it is not important whether the event occurred in a public place, but whether the activity in which the person was engaged was of a private or public character. As far as photography is concerned, the fact that a photograph is taken in a public place does not automatically lead to the presumption that the photographed activity is a "public activity". There is an unlimited protection of the private sphere, without any restrictions to certain rooms or spaces. Where high-performance telephoto lenses have been used in order to capture things or events on film that could not otherwise be captured, the publication of the photographs is always considered to be unlawful.[654] Furthermore, the publication of a person's photograph taken in a public place is unlawful under French law, unless the photograph is incidental to the overall context of the picture. A person can object to publication on the grounds of privacy and image rights if the complainant is the main subject of a photograph, but not if his image is only one of the component elements of a whole public subject, even though he may still be identifiable.[655]

7.116 In Italy, events that are strictly personal and relating to the family and which are not of legitimate concern to the public are protected from publicity even though they take place outside the domestic residence.[656]

7.117 In the Quebec case of Aubry v Éditions Vice-Versa Inc,[657] the plaintiff sued the publisher of a magazine for publishing a photograph showing the plaintiff sitting on the steps of a building. The photograph was taken in a public place without the plaintiff's consent. That photograph was in no way reprehensible, and the text of the article was serious. Nevertheless, the Court of Appeal held that the unauthorised publication of the photograph constituted an infringement of the plaintiff's anonymity, which was an essential element of the right to privacy.[658] On further appeal, the Supreme Court of Canada held that the balancing of the right to privacy and the right to freedom of expression depended both on the nature of the information and on the situation of those concerned. Since none of the exceptions based on the public's right to information was applicable, the Court held that the publication of the photograph was an unwarranted infringement of the plaintiff's right to privacy, even though it was taken in a public place. The Court did not accept the publisher's submission that it would be very difficult in practice for a photographer to obtain the consent of all those he photographed in public places before publishing the photographs:

"To accept such an exception would, in fact, amount to accepting that the photographer's right is unlimited, provided that the photograph is taken in a public place, thereby extending the photographer's freedom at the expense of that of others. We reject this point of view."[659]

7.118 In a New Zealand case,[660] the tombstone marking the plaintiff's burial plot appeared in the defendant's film as a backdrop to a sequence shot at a public cemetery. The film was described in reviews as a "splatter film". It satirised a number of attitudes and forms of behaviour by showing them in the extreme. After stating that the facts disclosed to the public must be private facts and not public ones, the High Court of New Zealand held that there could scarcely be anything less private than a tombstone in a public cemetery. However, the Court added that it is conceivable that in certain circumstances the fact that something occurs or exists in a public place does not necessarily mean that it should receive widespread publicity if it does not involve a matter of public concern.[661]

7.119 In M G (a minor) v Time Warner,[662] a publication and a television programme used a team photograph of a Little League team to illustrate stories about adult coaches who sexually molest youths playing team sports. The plaintiffs, all of whom appeared in the photograph, had been players or coaches on the Little League team. The team's manager had pleaded guilty to molesting children he had coached in the Little League. Four of the player-plaintiffs had been molested by the manager and four had not. After the article and the programme appeared, the plaintiffs were teased and harassed at school. As a consequence, some of them were forced to quit school, to transfer, or to be home-schooled. The defendants asserted that the information was not private because the plaintiffs had played a public sport and the team photograph had been taken on a public baseball field. Furthermore, the manager had admitted molesting Little League players. The California Court of Appeal held that the plaintiffs had demonstrated a prima facie case of invasion of privacy. It reasserted that the claim of a right of privacy is not "so much one of total secrecy as it is of the right to define one's circle of intimacy - to choose who shall see beneath the quotidian mask."[663] Information disclosed to a few people may remain private.

7.120 The decisions of the European Court of Human Rights have also provided some insight into this subject. In Rotaru v Romania,[664] the Romanian intelligence services held data relating to: (a) the membership of the applicant in a political movement when he was studying at a university; (b) his application to publish two political pamphlets; (c) his affiliation to the youth section of a political party; (d) the fact that he had no criminal record; and (e) the fact that he had been questioned by the intelligence services about his views. The Romanian Government argued that the information related not to the applicant's private life but to his public life: by deciding to engage in political activities and having pamphlets published, the applicant had implicitly waived his right to "anonymity" inherent in private life. As to his questioning by the police and his criminal record, the Government argued that they were public information. After referring to the Council of Europe Convention on Privacy 1981 and reiterating that respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings, the European Court stated that:

"public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past."[665]

In the Court's opinion, information about an individual's life, when systematically collected and stored in a file held by the State, falls within the scope of "private life" for the purposes of Article 8(1). Both the storing by a public authority of information relating to an individual's private life and the use of it and the refusal to allow an opportunity for it to be refuted amount to an interference with the right to respect for private life secured in Article 8(1).

7.121 In Perry v United Kingdom,[666] the applicant complained that he had been covertly videotaped at the custody suite of a police station using a closed circuit video camera. The UK Government submitted that the filming did not take place in a private place with any intrusion into the "inner circle" of his private life. It pointed out that the custody suite of the police station was a communal administrative area through which all suspects had to pass and where the camera, which was easily visible, was running as a matter of security routine. The images also related to public, not private, matters. He must have realised that he was being filmed, with no reasonable expectation of privacy in the circumstances. The European Court noted that the normal use of security cameras per se,whether in the public street or on premises such as shopping centres or police stations where they serve a legitimate and foreseeable purpose, do not raise issues under Article 8(1). However, the police in question regulated the security camera so that it could take clear footage of the applicant in the custody suite. The footage had also been used for identification parade purposes and shown in a public court room. Whether or not he had been aware of the cameras running in the custody suite, there was no indication that the applicant had had any expectation that footage was being taken of him within the police station for use in a video identification procedure and, potentially, as evidence prejudicial to his defence at trial. This went beyond the normal or expected use of that type of camera. The footage had not been obtained voluntarily or in circumstances where it could be reasonably anticipated that it would be recorded and used for identification purposes. The Court therefore considered that both the recording and use of the footage disclosed an interference with his right to respect for private life.[667]

Hong Kong Law Reform Commission

Chapter 7 - Unwarranted publicity given to an individual's private life