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Hong Kong Law Reform Commission |
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 the law and to make recommendations. The members of the sub-committee are as follows:
Dr John Bacon-Shone (Chairman)
Director, Social Sciences Research Centre, The University of Hong Kong
Mr Don Brech
Principal Consultant, Records Management International Limited
(Former Director, Government Records Service)
Professor Johannes M M Chan (from November 2001)
Honorary Senior Counsel,
Dean, Faculty of Law, The University of Hong Kong
Mrs Patricia Chu, BBS, JP (till April 2001)
Former Deputy Director of Social Welfare (Services), Social Welfare Department
Mr A F M Conway
Chairman, Great River Corporation Limited
Mr Edwin Lau
Chairman, Hooray Holdings Limited
(Former Assistant General Manager & Head of Strategic Implementation Asia Pacific, HSBC)
Mr Robin McLeish (from February 2000)
Barrister-at-law
(Former Deputy Privacy Commissioner for Personal Data)
Mr Barry Mortimer, GBS
Non-Permanent Judge, Court of Final Appeal
(Former Vice-President, Court of Appeal)
(Chairman of sub-committee from 1990 till August 1999)
Mr James O'Neil
Deputy Solicitor General (Constitutional), Department of Justice
Mrs Kathy NG Ma Kam-han (from April 2001 to April 2003)
Assistant Director (Elderly), Social Welfare Department
Mr Peter So Lai-yin (till November 2001)
Former General Manager, Hong Kong Note Printing Limited
Professor Raymond Wacks
Emeritus Professor of Law and Legal Theory, The University of Hong Kong (Chairman of sub-committee from August 1999 to December 2001)
Mr Wong Kwok-wah
Editor, Asia Times-On-Line (Chinese version)
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 finalises 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 Media Intrusion. The Sub-committee reviewed its preliminary recommendations in the Civil Liability Paper and Media Intrusion Paper after the LRC Stalking Report was published in October 2000. The final reports on Civil Liability and Media Intrusion are being published at the same time so that the public can fully appreciate the implications of the recommendations in these two reports. The Sub-committee held 15 meetings to finalise its consultation paper on media intrusion and 20 meetings to complete its report to the Commission. The Commission considered the Sub-committee report in mid-2003 and concluded their deliberations in the autumn of 2003. We record our appreciation to the Sub-committee for the immense amount of hard work they have undertaken on the media intrusion project.
4. Chapter 1 gives an overview of the public responses to the Sub-committee's Consultation Paper on Media Intrusion. The results of various opinion polls conducted after the publication of the Consultation Paper are summarised in Chapter 2. Since press freedom and the right to privacy are implicated in the regulation of unwarranted media intrusion, Chapter 3 explains how press freedom can be reconciled with the right to privacy under the Basic Law, the International Covenant on Civil and Political Rights and the European Convention on Human Rights.
5. Chapter 4 studies the nature and incidence of media intrusion in Hong Kong. In order to enable the public to understand how serious media intrusion can be, the impact of media intrusion on the victims is explained in Chapter 5. These two chapters provide support for the view that there is a pressing social need to protect individuals from unwarranted media intrusion in Hong Kong. Since the broadcasting industry is regulated under the Broadcasting Authority Ordinance, we deal with intrusion by broadcasters first in Chapter 6.
6. As regards intrusion by the print media, the effectiveness of the self-regulatory measures adopted by the professional bodies will first be examined in Chapter 7. Then follows a review of the attempts made by the HK Press Council at industry self-regulation in Chapter 8. The proposal of the HK Press Council to transform itself into a statutory body enjoying qualified privilege under libel law is also discussed in that chapter. Since the self-regulatory measures adopted by the journalistic profession and the press industry have not been effective, we examine in Chapter 9 whether the problem can be resolved by issuing a code of practice under the Personal Data (Privacy) Ordinance or by amending the Ordinance.
7. Given that the Personal Data (Privacy) Ordinance has limitations and we do not consider it desirable to amend it to provide for a comprehensive system of privacy protection with respect to media intrusion, we examine in Chapter 10 whether other options suggested by the respondents and commentators can resolve the problem. Since the option of self-regulation by a voluntary press council or a non-governmental statutory press council has been put forward as an alternative to the Sub-committee's proposal, we study the experience of the press councils and similar bodies in other jurisdictions in Chapter 11. The experience of the UK Press Complaints Commission is singled out in Chapter 12 because some sections of the local press have referred to that commission as a model for Hong Kong to follow.
8. Since there is a trend in Europe complementing media self-regulation with co-regulation, we introduce in Chapter 13 the concept of co-regulation and explain its relationship with self-regulation in the media context. We then discuss in Chapter 14 the desirability of creating a statutory but self-regulating press complaints body to achieve effective self-regulation. We conclude that such a body would not pose a threat to press freedom if there are sufficient safeguards against abuse and outside interference. The details of the proposed self-regulating body are set out in Chapter 15. The subject of anonymity for juveniles concerned in criminal proceedings is addressed in Chapter 16.
9. The Law Reform Commission is unanimous in making the conclusions and recommendations in this report.
[1] The Commission's terms of reference are: "To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters: (a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations; (b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong; (c) intrusion (by electronic or other means) into private premises; and (d) the interception of communications, whether oral or recorded; but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence."