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Hong Kong Law Reform Commission

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THE LAW REFORM COMMISSION OF HONG KONG

REPORT

PRIVACY AND MEDIA INTRUSION

This report can be found on the Internet at: http://www.hkreform.gov.hk/


December 2004

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 members of the Commission at present are:

The Hon Ms Elsie Leung Oi Sie, GBM, JP,
Secretary for Justice (Chairman)

The Hon Mr Justice Andrew Li, Chief Justice
Mr Tony Yen, SBS, JP, Law Draftsman

Dr John Bacon-Shone
The Hon Mr Justice Bokhary, PJ
Professor Albert Chen, JP
Mr Anthony Chow, SBS, JP
Professor Y K Fan, JP
Mr Alan Hoo, SBS, SC, JP
The Hon Mrs Sophie Leung, SBS, JP
Professor Mike McConville
Mr Benjamin Yu, SC

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

20/F Harcourt House
39 Gloucester Road
Wanchai
Hong Kong

Telephone: 2528 0472
Fax: 2865 2902
E-mail: hklrc@hkreform.gov.hk
Website: http://www.hkreform.gov.hk/


THE LAW REFORM COMMISSION OF HONG KONG

REPORT


CONTENTS

Chapter

Page



Preface

1


1. Public responses to the Consultation Paper
5


2. Findings of opinion polls
24


3. Press freedom and freedom from media intrusion
33


Freedom of the press
33
International Covenant on Civil and Political Rights
38
American Convention on Human Rights
41
European Convention on Human Rights
42
Council of Europe
47


4. Media intrusion in Hong Kong
51


Public opinion polls
51
The case of HKSAR vs Lau Kong-kwun
52
The case of HKSAR vs Wong Chung Ki
53
Extent of the problem
54
Intrusion upon solitude or seclusion versus unwanted publicity
58
Plaintiffs suing for sexual harassment
59
Plaintiffs in personal injury actions
60
Privacy interests of individuals in certain public places
60
Pictures showing the body or image of a deceased person
62
Victims of crime
64
Patients in hospitals
66


5. Impact of media intrusion on victims
70


6. Regulating intrusion by the broadcast media
78


7. Press self-regulation in Hong Kong
83


Environment in which the media operates
83
Advantages and disadvantages of self-regulation
85
Codes of ethics adopted by journalists' associations
88
The Journalists' Code of Professional Ethics
90
Initiatives of the Newspaper Society
91


8. The Hong Kong Press Council
93


Objects and composition
93
Complaints procedure
95
Operation
96
Strengths and weaknesses
97
Lack of remedies for intrusion by non-member newspapers
104
The Hong Kong Press Council Bill
105


9. Personal Data (Privacy) Ordinance
110


Application of the PD(P)O to the media
110
Codes of practice under the PD(P)O
117
Limitations of the PD(P)O
119
Alternative of amending the PD(P)O
124


10. Other suggested options
126


Actions in the public domain
127
Rely solely on market forces
127
Promote education on media literacy
128
Boycott newspapers that fall below ethical standards
129
Encourage more public complaints
131
Encourage the establishment of independent media monitors
132
More effective self-regulation by newspaper industry and journalistic profession
132
Exhort individual newspapers to adopt their own codes of ethics
132
Exhort individual newspapers to appoint news ombudsmen
132
Legislate for compulsory licensing of journalists
133
More effective self-regulation by the HK Press Council
135
Urge publications to accept the jurisdiction of the HKPC
135
Extend legal aid to media organisations sued for publishing the findings and decisions of the HKPC
135
Protect reports of the findings and decisions of the HKPC by statutory qualified privilege
135
Require all newspapers to be members of the HKPC
136
Better protection of media critics
137
Make legal aid available for defamation proceedings
137
Attach qualified privilege to media reports of statements made by journalists' associations on media ethics
139
Introduce a new defence to defamation actions
140
More effective remedies for victims of press intrusion
141
Reform the law of libel
141
Seek civil remedies under the proposed privacy torts
141
Set up a legal fund to help victims of press intrusion
144
Establish a statutory commission without sanctions against media intrusion
145
Appoint a statutory Press Ombudsman
145
Government regulation by setting up a Press Authority
146
Regulation by a Press Privacy Complaints Tribunal
146
Prescribe a mandatory press privacy code without creating a statutory body
148
Provide legislative backing to a voluntary press privacy code
149


11. Press councils and similar bodies in other jurisdictions
151


Press councils in general
151
Overview of press councils in other jurisdictions
154
Voluntary press councils and similar bodies without any state support
157
Australia
157
Austria
161
Canada
162
Cyprus
165
Estonia
166
Fiji
167
Israel
168
Japan
169
The Netherlands
169
New Zealand
171
Norway
171
Peru
172
The Philippines
173
Russia
174
South Africa
174
Sweden
176
Switzerland
178
Taiwan, China
179
Tanzania
180
Turkey
181
United Kingdom
182
United States
182
Voluntary press councils and similar bodies with some state support
184
Finland
184
Germany
185
Italy
187
Kenya
189
Quebec, Canada
189
Sri Lanka
190
Statutory press councils or similar bodies
190
Bangladesh
190
Belgium
192
Denmark
192
Egypt
195
Ghana
195
India
197
Indonesia
201
Lithuania
202
Luxembourg
203
Macao, China
204
Nepal
205
Nigeria
206
Portugal
206
South Korea
207
Sri Lanka
208
Ireland
209


12. The history of press self-regulation in the United Kingdom
211


General Council of the Press
211
The Press Council
212
The Press Complaints Commission
217
Criticisms of the PCC and suggestions for reform
221


13. Alternatives to self-regulation
226


Principle of subsidiarity
228
Co-regulation as a regulatory model
228
Complementary nature of co-regulation and self-regulation
230


14. Press self-regulation within a legislative framework to protect individuals from unwarranted press intrusion
236


Need for protection from unwarranted press intrusion
236
Tripartite relationship between the press, the Government and the public
236
Public support for legislative measures
238
Creating an independent self-regulating body by statute to achieve effective self-regulation
239
Suggested risk of the legislature extending the reach of the legislation to matters other than privacy
242
A statutory but independent and self-regulating body
245


15. A statutory but self-regulating body to protect the public from unwarranted press intrusion
247


Guiding principles
247
Scope of coverage
248
Internet newspapers
249
Membership
251
Nomination of Commission members
253
Nomination of press members
255
Nomination of newspaper members
261
Nomination of magazine members
266
Nomination of journalist members
267
Nomination of academic members
268
Nomination of public members
269
Privacy Commissioner for Personal Data
271
Disqualification from membership
272
Nominal appointment by the Chief Executive
273
Chairman
273
Summary of the proposals on Commission membership
274
Press code on privacy-related matters
275
Factual errors about an individual
278
Power to deal with complaints about alleged breaches of the Code
286
Complaints against publishers, not journalists
286
Power to initiate own investigations and accept third party complaints
288
Circumstances under which the Commission may refuse to undertake or continue an investigation
291
No requirement to waive legal rights
292
Complaints Committee
295
Duty to declare interests
296
Right to regulate its own procedure
297
No power to compel journalists to disclose sources
298
Duty to give reasons in writing
300
No power to award compensation
300
No power to impose a fine
301
Power to advise, warn, reprimand and order the publication of findings and decisions
304
No power to order an apology
307
Enforcement of adjudications
309
Right of publisher to appeal against adjudication
311
No right to legal representation except with permission
313
Duty to publish findings, decisions and annual reports
315
Anonymity for alleged victims
317
Legal immunity for Commission members and employees but not the Commission itself
317
Media reports of the Commission's findings and decisions protected by qualified privilege subject to explanation or contradiction
322
Education and research
326
Funding
327
Comparison with proposals in the Consultation Paper
332
Comparison with the HK Press Council
334


16. Anonymity for juveniles concerned in criminal proceedings
338


17. Summary of recommendations
342


Annex 1 - List of persons who have made a submission to the Privacy Sub-committee
351


Annex 2 - Prima facie examples of unwarranted media intrusion in Hong Kong
353


Annex 3 - Jurisprudence on the privacy interests of a deceased person and the surviving relatives
417


Annex 4 - Press Councils and similar bodies in other jurisdictions
426