Chapter 7 - Public disclosure of private facts

The Law Reform Commission was established by the Executive Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Secretary for Justice or the Chief Justice.

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

of Hong Kong

Report

Civil Liability for Invasion of Privacy

Preface

1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of “privacy”.^¹ The Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the sub-committee are as follows:

(Former Assistant General Manager & Head of Strategic Implementation Asia Pacific, HSBC)

Emeritus Professor of Law and Legal Theory, The University of Hong Kong (Chairman of sub-committee from August 1999 to December 2001)

2. The secretary of the Sub-committee is Mr Godfrey K F Kan, Senior Government Counsel.

3. The first task of the Privacy Sub-committee was to study the collection, recording, storage and disclosure of personal data. This resulted in the Commission report on Reform of the Law Relating to the Protection of Personal Data published in August 1994. Thereafter, the Sub-committee issued a consultation paper on the regulation of surveillance and the interception of communications. This was followed by the Commission report on Privacy: Regulating the Interception of Communications published in December 1996. In relation to the regulation of surveillance, the Sub-committee decided that the civil aspects of invasion of privacy should be looked into first before it finalised its recommendations on surveillance. The Sub-committee therefore published a consultation paper on Civil Liability for Invasion of Privacy in August 1999. That consultation paper covered the civil aspects of surveillance as well as other forms of invasion of privacy, and was published together with the consultation paper on The Regulation of Media Intrusion. The criminal aspects of surveillance will be dealt with in the Commission report on criminal sanctions for unlawful surveillance to be issued later.

4. The Privacy Sub-committee recommended in the Consultation Paper on Civil Liability for Invasion of Privacy (“the Consultation Paper”) that a person should be liable in tort if he, without justification, (a) intrudes upon the solitude or seclusion of another or into his private affairs, or (b) gives publicity to a matter concerning the private life of another. The Sub-committee received 21 submissions on the Consultation Paper. The list of respondents is at the Annex. We are grateful to all those who have contributed to the discussion of this topic. The Sub-committee held ten meetings to finalise the Consultation Paper and another 14 meetings to complete its report to the Law Reform Commission. The Commission considered the Sub-committee report at the end of 2001 and reviewed their conclusions in early 2004 after they had finalised the Privacy and Media Intrusion Report. We express our appreciation to the members of the Sub-committee for the time and effort they have devoted to this project.

5. The Bar Association supported the idea of creating, by statute, one or more specific torts of invasion of privacy which clearly define the act or conduct which unjustifiably frustrates the reasonable expectation of privacy of an individual. The Law Society supported, in principle, the proposal to provide a civil remedy for invasion of privacy by statute. However, The HK section of the International Commission of Jurists (JUSTICE) objected to the creation of privacy torts. They preferred to adopt an incremental approach and wait for judicial development of the common law to protect individual privacy.

6. The Hong Kong Democratic Foundation agreed with the proposal that civil remedies be provided to victims of invasion of privacy. They believed that in formulating the new torts, the right balance between privacy and freedom of expression had been struck. The HK Federation of Women supported the creation, by statute, of one or more specific torts of invasion of privacy so as to provide adequate remedies to victims of invasion of privacy. They emphasised that the statutory provisions must be set out in clear, concrete and precise terms to avoid confusion.

7. The HK and Kowloon Trades Union Council was concerned that video surveillance of the workplace was becoming more widespread. The HK Women Professionals and Entrepreneurs Association welcomed the proposal to regulate workplace surveillance and the use of personal data in advertising materials by way of codes of practice to be issued by the Privacy Commissioner and the Broadcasting Authority. However, the Broadcasting Authority did not believe that there was a need to introduce privacy provisions in its advertising codes.

8. The Department of Health and the Legal Aid Department commented that the right to privacy had to be balanced against freedom of expression. The Hospital Authority supported the proposals of the Sub-committee to the extent that the new torts would be created by statute and would assist and would not impair the Authority in pursuing the objective of providing efficient health care to the public.

9. The Privacy Commissioner for Personal Data agreed that the existing law was insufficient to provide legal redress for infringement of privacy of the types described in the Consultation Paper. He considered it necessary for the law to develop to cope with the needs of society. Security Bureau noted that certain privacy-invasive acts were not regulated by existing law. They commented that there appeared to be a need to create the proposed torts to deal with these acts. The Child Protection Unit of the HK Police Force agreed that the identities of victims of crime should be protected in criminal proceedings.

10. Television Broadcasts Limited commented that the electronic media in Hong Kong was very well regulated by the Codes of Practice issued by the Broadcasting Authority. The HK Journalists Association argued that the Consultation Paper failed to explain that the new torts are aimed at meeting a pressing social need. They did not accept the proposal to create the new torts. They argued that such a move was “a potentially dangerous experiment with harmful repercussions for the media and investigative journalism”. Tim Hamlett, Associate Professor of the Department of Journalism at the HK Baptist University, commented that the Sub-committee seemed to have lost contact with the fundamental importance of freedom of expression in a free society. The comments made by The Society of Publishers in Asia were directed at the proposals made by the Sub-committee in the Consultation Paper on Media Intrusion.

11. Paula Scully and Andrew Bruce SC agreed that the identities of victims of crime should be protected by giving the Court a power to issue an anonymity order. Darryl Saw SC commented that the role of law enforcement agencies to investigate both actual and prospective offences could not be inhibited. John Walden submitted that the proposals did not provide either deterrence or redress against the mounting of “unlawful defamatory operations” by the Government against its critics.

Structure of the report

12. We shall explain in Chapter 1 the elements and functions of privacy. The jurisprudence on what the right of privacy comprises will also be introduced. Chapter 2 then examines the extent to which privacy is protected at common law and under the Personal Data (Privacy) Ordinance. It will be seen that the protection of privacy under existing laws is patchy and inadequate. Since affording protection to the right of privacy by creating a tort of unwarranted publicity concerning an individual’s private life may conflict with the exercise of the right to freedom of expression, we shall examine in Chapter 3 the relationship between these two rights; in particular, whether or not the protection of privacy is inconsistent with the values of free speech. The proper approach to balancing the two rights under the International Covenant on Civil and Political Rights and the European Convention on Human Rights will also be discussed.

13. After we have introduced the law of privacy in other jurisdictions in Chapter 4, we discuss in Chapter 5 whether there is a need to introduce a tort of invasion of privacy in Hong Kong. The discussion includes a debate as to whether such a tort should be created by the judiciary or by statute. After satisfying ourselves that there is a need to create one or more specific torts of invasion of privacy by statute, we recommend in Chapters 6 and 7 that two new torts be created to protect individuals from unreasonable invasion of privacy, namely, unwarranted intrusion upon the solitude or seclusion of another, and unwarranted publicity concerning an individual’s private life.

14. The recommendations affecting the privacy of ex-offenders and victims of crime are made in Chapters 8 and 9 respectively. Whether appropriation of a person’s name or likeness should be actionable as a privacy tort or a distinct tort is discussed in Chapter 10. Since some jurisdictions treat publicity placing someone in a false light as a privacy tort, we examine in Chapter 11 whether there are compelling arguments for treating such publicity as an invasion of privacy. The need to create a right to correct factual errors reported in the press is also examined in that chapter. The remedies for the two torts proposed in Chapters 6 and 7 are discussed in Chapter 12. We believe that our proposals could provide a civil remedy for “arbitrary or unlawful” interference with an individual’s privacy without unduly infringing other legitimate rights and freedoms, in particular, the freedom of speech and of the press.

Chapter 1

The right of privacy

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The notion of “privacy”

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

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

1.3 An affront to human dignity – In the view of Edward Bloustein, invasion of privacy constitutes an affront to human dignity. He believes that an intrusion on an individual’s private life “would destroy individual dignity and integrity and emasculate individual freedom and independence”.^⁷ He says:

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

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

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

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

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

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

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

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

CONTENTS



Chapter	Page

Preface	1

1. The right of privacy	6

The notion of “privacy”	6
Psychological aspects of privacy	14
Functions of privacy	16

2. Protection of privacy under existing laws	19

Basic Law of the Hong Kong SAR	19
Common law	19
Trespass to land	20
Nuisance	21
Breach of confidence	23
Infringement of copyright	27
Breach of contract	27
Intentional infliction of emotional distress causing physical harm	27
Trespass to the person	28
Defamation	29
Malicious falsehood	29
Kaye v Robertson	30
Hong Kong Bill of Rights Ordinance	30
Personal Data (Privacy) Ordinance	31
The Data Protection Principles	31
Rights of redress	35
Protection of freedom of the press	36
Limitations of the PD(P)O	37
Concluding remarks	43


3. Freedom of expression and the right to privacy	46

Right of privacy and free speech values	46
Freedom of the press	49
International Covenant on Civil and Political Rights	52
American Convention on Human Rights	55
European Convention on Human Rights	56


4. The law of privacy in other jurisdictions	61

Australia	61
Austria	63
Brazil	64
Canada	64
Mainland China	68
Denmark	69
England and Wales	69
Estonia	73
France	73
Germany	75
Hungary	77
India	77
Ireland	78
Italy	79
Lithuania	80
Macao, China	80
The Netherlands	81
New Zealand	81
Norway	84
The Philippines	84
Russia	84
South Africa	85
South Korea	86
Spain	86
Taiwan, China	86
United States	87
Other jurisdictions	89
Conclusion	90


Providing civil remedies to victims of unwarranted invasion of privacy	91

Need for civil protection against invasion of privacy	91
Judicial development or legislation?	97
Legislative approach to the creation of a tort of invasion of privacy	105


6. Intrusion upon the solitude or seclusion of another	108

Need for protection from intrusion upon privacy	108
Reasonable expectation of privacy	117
Intrusion upon the “solitude” or “seclusion” of another	119
Physical intrusion	124
Non-physical intrusion	125
Aural surveillance	126
Visual surveillance	128
Intrusion into the private affairs or concerns of another	129
Unauthorised filming by a lawful visitor	131
Standard of liability	134
Offensiveness of an intrusion	134
Conclusion	136
Comments made by respondents	137
Privacy in the workplace	140
Defences to an action for intrusion	141
Consent	141
One-party consent	142
Lawful authority	148
Legitimate interests justifying an intrusion	149


7. Unwarranted publicity given to an individual’s private life	152

The need to provide a civil remedy for unwarranted publicity	152
Matters concerning an individual’s private life	156
Publicity vs disclosure to a selected few	161
Offensiveness of the publicity	163
Defences to an action for unwarranted publicity	166
Consent	166
Lawful authority	167
Privileged disclosure	167
Publicity in the public interest	168
Principle of proportionality	178
Legitimate aims of giving publicity to an individual’s private life	180
Facts concerning an individual’s private life that are available in the public domain	183
Facts available in public records	184
Facts concerning an individual’s private life in public places	190
Facts which have previously been disclosed to others	196
Concluding remarks	200
Relationship between intrusion and unwarranted publicity	202


8. Privacy of ex-offenders	205


9. Anonymity of victims of crime	216

Anonymity of victims of sexual offences	216
Anonymity of victims of non-sexual crime	219
Judicial Proceedings (Regulation of Reports) Ordinance	228


10. Appropriation of a person’s name or likeness	230

Is appropriation of a person’s identity a privacy concern?	230
Use of personal data in advertisements	243


11. Publicity placing someone in a false light and factual inaccuracies reported in the press	247

Existing protection	247
Overseas jurisprudence	251
Conclusion	264


12. Enforcing the right to privacy	266

Proof of damage	266
Damages	267
Injunction	267
Apology	268
Account of profits	269
Delivery up	269
Form of trial	271
Limitation period	274
Parties to a privacy action	275


13. Summary of recommendations	277


Annex

List of those who responded to the Privacy Sub-committee’s Consultation Paper on Civil Liability for Invasion of Privacy	282

The Law Reform Commission of Hong Kong

Report

Civil Liability for Invasion of Privacy

of Hong Kong

Report

Civil Liability for Invasion of Privacy

Consent

Preface

Structure of the report