Privacy and Media Intrusion - [2004] HKLRC 2 (December 2004)

10.1 Apart from the suggestion that the Personal Data (Privacy) Ordinance should be strictly enforced and/or amended to give better protection to victims of press intrusion, the following options have been put forward as an alternative to regulation by a statutory independent press council for the protection of privacy:

More effective self-regulation by newspaper industry and journalistic profession

(j) extend legal aid to media organisations sued for publishing the findings and decisions of the HKPC;

(k) protect reports of the findings and decisions of the HKPC by statutory qualified privilege;

(n) attach qualified privilege to media reports of statements made by journalists' associations on media ethics;

Actions in the public domain

Rely solely on market forces

10.2 Based on previous experience in Hong Kong, it is unlikely that market forces alone can rectify the situation. Firstly, both intrusive news-gathering activities and unwanted publicity have negative consequences on third parties who are not involved in the production or consumption of newspapers. These external or social costs are neither reflected in the price of a newspaper, nor compensated for by the newspaper.

10.3 Secondly, the newspaper market does not normally provide readers with information about the fairness of the means used by journalists to cover news; nor are readers provided with information about the negative consequences that unfair means of collection or an intrusive story or picture can have on the individuals concerned. Such knowledge cannot be gained by glancing through the newspapers because it is not in the interests of a newspaper to provide such information. Although the findings of the HK Press Council are now disclosed on its website, the public cannot get a full picture of the ethical standards of magazines and newspapers in relation to privacy because the privacy-invasive conduct of magazines and non-member newspapers is not subject to the scrutiny of the Council. It is difficult for the public to judge the standards of these publications if their victims are not provided with an avenue to voice their grievances in public. Unless there is an effective complaints and monitoring mechanism and the public is made aware of its findings, readers are unable to make an informed decision as to which newspaper they should subscribe.

10.4 Given that competition in the press industry is intense and the gap between the private and public interest is large, the failure of the market in providing adequate information and internalising the social costs of producing newspapers cannot be corrected by the market itself. It is also impractical to rely upon an individual newspaper taking steps voluntarily to remedy the situation, particularly when there is an absence of effective external pressure to do so.[267] There have been instances of a newspaper or magazine publishing an apology for overstepping the mark, but public apologies are rare and are published only in extreme cases after there has been a public outcry.

Promote education on media literacy

10.5 Many respondents supported the promotion of media literacy education. They argued that an increase in media literacy could help the public to evaluate the standards of the media. The public could then use their purchasing power to boycott newspapers that were frequent intruders of privacy, and support quality newspapers instead. Some respondents also suggested that the Government should provide subsidies to schools and grassroots organisations to promote media literacy education.

10.6 Dr Kwan Kai-man was in favour of the promotion of media education but considered that this would be unable to solve the problem entirely.[268] He said victims of media intrusion would still be unable to obtain compensation or fair treatment. The effects of education would take a long time to realise. Dr Kwan further noted that many commentators who were against the statutory press council proposal had previously argued that, to be effective against discrimination, education had to be complemented by anti-discrimination legislation. He commented that the same logic should also be applied in tackling the problem of media intrusion.

10.7 We have no objection to the Government encouraging the elaboration and development of media literacy programmes for children and adults.[269] All citizens should understand the role of the press in society as well as the rights and responsibilities of the press in a democracy. Media literacy programmes can also improve market functioning by allowing people to make better-informed decisions. However, education and persuasion in themselves are insufficient. Media education focuses on consumers and is no substitute for providing relief to victims of media intrusion. There is also a need to deter intrusive behaviour by imposing sanctions (be it publicity or otherwise) on those who fall below the standards.

Boycott newspapers that fall below ethical standards

10.8 Some respondents have suggested that those who are dissatisfied with a newspaper should cease patronising it. They argue that the problem of media intrusion will disappear as readers grow tired of ethical breaches, or when fewer readers subscribe to the more intrusive newspapers. Newspapers that the public accept and support will survive, while newspapers that the public dislike or reject will suffer.

10.9 Dr Kwan Kai-man pointed out in his submission that there were problems with this approach. He suggested that a newspaper with questionable ethics must have some merits or appeal, and the public's disapproval of its conduct may not fully offset these attractions. An individual citizen has little influence compared with the media organisations and the all-pervasive media culture. The effect of a boycott would therefore be limited and could not last long.

10.10 We note that public opinion and advertisers could exert an influence on the behaviour of magazines or newspapers in the short run in extreme cases. For example, the public outcry over the coverage of the bizarre behaviour of a widower at Tin Ping Estate resulted in Apple Daily publishing an apology, and the same newspaper published another apology after it had named the wrong person as the solicitor who had been suspected of absconding with clients' money. The publication on the front cover of Eastweek magazine of a picture of a semi-nude actress in distress resulted in that magazine offering an apology in November 2002.

10.11 However, cases of a media organisation offering a public apology are rare and sometimes made only after the victim has threatened to take legal action against it. Moreover, the apologies may be half-hearted, qualified or do not come with a full explanation. For example, in the widower's case above, the paper admitted that it had "indirectly paid" $5,000 to the widower and others, but maintained that it had not used money for the purpose of fabricating news.[270] Eastweek also apologised in respect of the semi-nude picture of an actress only when it was clear that the public did not accept the magazine's argument that publication could be justified on the basis of the public's right to know, the media's obligation to report the truth, and the media's monitoring function. As regards the apology made in relation to the report about an absconding solicitor, the newspaper explained that the error was due to "a moment's negligence" without further explaining why the victim had been wrongly named in the report, causing the victim "continued distress". The victim likened the apology to "having had her hands chopped off, followed by the assailant saying sorry".[271] It appears that few of the cases in Annex 2 led to public condemnation, and even fewer resulted in a public apology from the newspaper or magazine concerned.

10.12 We are not aware of any evidence that public opinion or a call for boycott could have a lasting or long term impact in Hong Kong. In the case involving the widower above, the Society for Truth and Light urged the public to boycott Apple Daily but that call had no apparent impact on the sales of the newspaper. As for the Eastweek case, copies of the magazine were sold out on the day of issue and have since become a collector's item. It is true that Eastweek closed down after that incident but it is unclear whether the closure reflected the public outrage or the fact that the magazine had been losing money in recent years. Just as the public was criticising Eastweek for publishing the picture, Three Weekly published the same picture three days later in covering the Eastweek case; this time with the actress' breasts concealed but not her eyes. Although the practice of Three Weekly was roundly condemned by the public, the magazine was sold out quickly and a second edition was published to satisfy unmet demand. Also significant is the fact that Three Weekly did not close down as a result of the public uproar. This provides an example of public opinion failing to stop a media organisation publishing details of a victim's private life. Shortly after the closure of Eastweek, another magazine, Express Weekly, hired former Eastweek staff and its covers, paper and design have evolved to be almost indistinguishable from Eastweek.[272]

10.13 As pointed out by Thomas Gibbons, the effect of a boycott on a newspaper is bound to be marginal because newspapers are complex packages of which only a portion might offend the readers.[273] John Merrill elaborates:

"Market accountability … implies that audience groups will want or demand more responsible communication and will insist that the media be more ethical in their practices. In reality, we know that, by and large, audiences know little or nothing about moral quandaries of the media and care little about them. The media are ‘mixed bags' anyway, with some ‘irresponsible' segments mixed with ‘responsible' segments. The public in our society has learned to accept the good with the bad and … to take on faith the mass of information that lies in the large neutral area between responsible and irresponsible journalism.

It is very difficult for a mass audience to respond adequately to perceived irresponsibility in a communication medium. The mass audience is too heterogeneous, scattered, and anonymous to provide a potent (at least, short-term) force of accountability. Some members of the audience may cancel their subscriptions to a newspaper because of perceived media weaknesses or irresponsibilities. But other members will either condone such media activities or, at least, be unconcerned about them."[274]

10.14 Even if a boycott is successful and the resultant drop in patronage has an impact on the advertising revenue of the newspaper, it provides no meaningful redress to the individuals whose privacy has been invaded. Our primary focus has been to protect individuals from press intrusion and to provide an effective remedy for the victims. A possible reduction in the market share of an offending newspaper is of no concern to the victim and is no substitute for adequate remedies for him. Further, complaints of press intrusion are disputes between a newspaper and persons caught in the news. Newspaper readers are third parties to these disputes. In any event, a press intrusion is no less an intrusion because it is committed by a newspaper with a low circulation. The readership of the newspaper at fault only goes to the seriousness of the intrusion.

10.15 More importantly, press intrusion is an area where the readers' desire to be informed may conflict with the interest of those whose privacy has been unjustifiably invaded. The average reader is more likely to subscribe to an intrusive newspaper that provides detailed private information about those in the news than one that fully respects their privacy. The use of intrusive news-gathering methods and the publication of private facts are factors that contribute to the commercial success of a newspaper. A newspaper that respects privacy is at a competitive disadvantage in comparison to those that unjustifiably exploit the private lives of individuals. It is therefore impractical to rely solely on the free market to solve the problem.

10.16 In conclusion, our major concern is the plight of victims of press intrusion, not the profits and turnover of a newspaper company. A drop in the readership of a newspaper that has abused press freedom to the detriment of personal privacy will not alleviate the pain, suffering, embarrassment and inconvenience of the victims. Members of the public should be protected from unwarranted intrusion by newspapers irrespective of the profitability and circulation of the newspaper concerned.

Encourage more public complaints

10.17 Complaining to the media organisations is much less effective than complaining to an independent and impartial adjudicating body whose decisions are binding on its members. In the absence of such an adjudicating body, members of the public may complain to a quality newspaper about the conduct of other newspapers. However, newspapers are usually reluctant to criticise their peers.[275] The survey commissioned by the HKPC in 2002 revealed that those who believed that complaining to the offending newspapers or other media organisations had a large effect amounted to only 7% and 19% respectively, while 85% considered that Hong Kong needed an independent press complaints body.

Encourage the establishment of independent media monitors

10.18 Few would object to the establishment of more media monitors by the NGOs. However, a media monitor which does not have the support of media proprietors, editors and journalists cannot command the respect and confidence of the press, and hence, cannot be effective in curbing media excesses. This suggestion is also asking too much of NGOs that do not have the time, money and expertise to monitor the media. It is therefore not surprising that the efforts made by the HKJA to set up a Media Ethics Forum to maintain professional standards and handle public complaints have not been successful.[276]

More effective self-regulation by newspaper industry and journalistic profession

Exhort individual newspapers to adopt their own codes of ethics

10.19 The implementation of unilateral codes by individual newspapers is one of the purest forms of self-regulation. The need to adopt a unilateral code is particularly pressing for newspapers that do not have their own codes and have not adopted the Journalists' Code of Professional Ethics. Although unilateral codes amount to some form of self-restraint on the conduct of journalists towards the general public, it is a private initiative and is purely an internal matter. We are not aware of any newspaper codes promoted to the readers. In any event, an internal code is not binding on the newspaper concerned. It is not enforceable against the newspapers by the readers, a fortiori, the victims of media intrusion who have no contractual relationship with the newspapers. What each newspaper does is a matter for its own judgement without any outside oversight.

Exhort individual newspapers to appoint news ombudsmen

10.20 A newspaper may appoint a distinguished and independent ombudsman to accept and investigate complaints from the public.[277] In the UK, some newspapers retain an internal ombudsman but they all rely upon the Press Complaints Commission to manage complaints. According to our understanding, the first news ombudsman in Hong Kong was appointed by Next Magazine in 1997. The ombudsman's comments were published on the magazine's website after he had asked the journalists concerned to respond. That scheme was discontinued in September 1998 on the ground that the magazine "had less than 10 complaints in over a year".[278]

10.21 We agree that an independent news ombudsman, whose investigations the newspaper has bound itself to assist and whose adjudications it undertakes to publish,could be a useful medium in holding a newspaper accountable. However, news ombudsmen are not the public's representatives. Not all of them can become neutral mediators between the newspapers and their readers. Some may end up being the complaints officers or public relations officers of the newspapers, while others may find themselves serving two masters or owing their loyalty to the newspapers appointing them. The fact that news ombudsmen are appointed and paid by a particular newspaper renders them not independent in the eyes of the public. Many readers therefore see news ombudsmen as advocates of newspapers rather than their representatives. Even if a newspaper gives its ombudsman a free hand to represent the interest of the readers, he can only advise or exhort: the final say about what should be published rests with the editor – unless the newspaper has undertaken to publish his adjudications in full. Moreover, it is not clear whose interests a news ombudsman should represent. The problem is particularly acute when the interests of the newspaper and its readers conflict with those of innocent third parties who are caught in the news.

10.22 We may mention in passing that Apple Daily advised the Sub-committee in November 1999 that the management of the newspaper agreed with the recommendation of their three-member steering group that an internal ombudsman be appointed within the newspaper to respond directly to complaints by members of the public. They further stated that the paper would explore what concrete steps should be taken to set up such a mechanism, and review the mechanism from time to time after it has been put in place.[279] The Sub-committee wrote to Apple Daily in May 2002 enquiring about progress but the paper failed to give any response.

Legislate for compulsory licensing of journalists

10.23 One option would be to make compulsory membership in a professional association a prerequisite to the practice of journalism. The law could require that the association maintain a register of journalists so that a journalist could be suspended or struck off if found by a disciplinary body to have engaged in unprofessional conduct, including unwarranted invasion of privacy. To improve the professional standards of journalists, the law could further require that only persons who had complied with the requirements prescribed by the professional association with respect to training and education could become members of the association. Examples of practitioners subjected to a licensing or registration regime include solicitors, architects, doctors, midwives, social workers, lift engineers, fire service installation contractors and estate agents.

10.24 Although there are jurisdictions requiring journalists to be accredited, Article 19(2) of the ICCPR, which provides that everyone has the right to freedom of expression through any media of his choice, effectively makes it impossible to introduce a licensing regime for journalism. The Inter-American Court of Human Rights has also held that a law licensing journalists, which does not allow those who are not members of a professional association to practice journalism and limits access to the professional association to university graduates who have specialised in certain fields, is not compatible with the American Convention on Human Rights. In the opinion of the Court, such a law contains restrictions to freedom of expression that are not authorised by the Convention and would consequently be in violation not only of the right of each individual to seek and impart information through any means of his choice, but also of the right of the public at large to receive information without any interference.[280]

10.25 The Inter-American Court pointed out that the argument that a law on the compulsory licensing of journalists does not differ from similar legislation applicable to other professions does not take into account the basic problem that is presented with respect to the compatibility between such a law and the American Convention on Human Rights. The profession of journalism involves the seeking, receiving and imparting of information, and the practice of journalism requires a person to engage in activities that define or embrace the freedom of expression which the Convention guarantees. Unlike journalism, the practice of law and medicine is not an activity specifically guaranteed by the Convention. It is true that the imposition of certain restrictions on the practice of law or medicine would be incompatible with the enjoyment of various rights that the Convention guarantees. But no one right guaranteed in the Convention exhaustively defines or embraces the practice of law or medicine, as does the article guaranteeing the right to freedom of expression, which encompasses the activity of journalism.[281]

10.26 It is now generally understood that the right to freedom of expression implies free access to the journalistic profession and voluntary membership of journalists in professional associations without any requirement of an official admission by state organs. These principles are reflected in the Declaration of Chapultepec,[282] the Declaration of Santiago,[283] and a resolution adopted by the 4^th European Ministerial Conference on Mass Media Policy.[284] Bearing in mind the opinion of the Inter-American Court of Human Rights and the principles laid down in these declarations, we do not believe that a licensing regime for journalists is compatible with the ICCPR.

More effective self-regulation by the HK Press Council

Urge publications to accept the jurisdiction of the HKPC

10.27 By joining the HK Press Council, all the newspaper members have undertaken to comply with its Articles of Association, Bye-laws and code of conduct. However, membership of the HKPC is unnecessary if a newspaper is willing to submit to its jurisdiction and rulings by contract. Hence, one option would be to urge magazines and all newspapers that are not yet members of the HKPC to enter into contracts with the Council, agreeing to accept its jurisdiction and publish its adjudications with due prominence. This option would be particularly attractive to publications with a low circulation, which support the self-regulatory scheme but do not want to share its costs and become involved in the management of the Council. However, it would not have a significant effect if the mass circulation newspapers that are not yet members of the HKPC are unwilling to be bound by the Council. In the light of the past attitude displayed by these newspapers toward the HKPC, it is unlikely that they will either become members of the Council or submit to its jurisdiction by contract. There are also no signs that the major news magazines are willing to accept the Council's jurisdiction either. One may safely conclude that there is no prospect of universal consent being forthcoming from the major newspapers and magazines for the HKPC to be enabled to perform its self-regulating function effectively.

Extend legal aid to media organisations sued for publishing the findings and decisions of the HKPC

10.28 It has been suggested that the Government should extend legal aid to media organisations sued for publishing the findings and decisions of the HKPC and other media monitors. At present, only individuals are entitled to apply for legal aid. Allowing legal persons to apply for legal aid involves a major change in policy which would open the floodgates and add to the burden of the Government. There are other more effective ways to afford better protection to the media in such circumstances. Of particular relevance is the proposal to treat a fair and accurate report of any matter issued for the information of the public by the HKPC as privileged under the Defamation Ordinance (Cap 21). We examine the desirability of this option below.

Protect reports of the findings and decisions of the HKPC by statutory qualified privilege

10.29 The purpose of this suggestion is to treat a fair and accurate report of any matter issued for the information of the public by the HKPC as privileged, subject to the plaintiff's right of reply in the defendant's newspaper. Without the benefit of a comprehensive review of the law of defamation similar to that conducted by the Faulks Committee and the Neill Committee in the UK,[285] we are not in a position to judge whether or not the law should accord qualified privilege to reports of statements made by the HKPC, which is a private company free to change its objects and powers at any time without any constraints. Yet even if this measure is desirable and practicable, it cannot give adequate redress to the victims of media intrusion, who deserve to have their grievances vindicated with due prominence in the offending newspapers, nor would it act as a sufficient deterrent to offenders that ignore the Council's adjudications persistently. The adjudications and comments made by the Council should be brought to the attention of the readers of the offending newspapers so that they can decide for themselves whether to continue to patronise those newspapers or not.

Require all newspapers to be members of the HKPC

10.30 Since a major problem with the HKPC is its low coverage of local newspaper readership, one option would be to pass legislation making membership of the HKPC compulsory for anyone wishing to register under the Registration of Local Newspapers Ordinance. An example of such an approach can be found in the complaints mechanism offered by the voluntary Travel Industry Council of HK ("the TIC"). The TIC has a Consumer Relations Committee, which deals with disputes between travel agents and their customers that cannot be settled by mediation. The Committee has six trade members and six non-trade members in addition to the convenor who is a TIC Board director. The rulings of the Committee are binding on the member agents, who could lodge an appeal to the Board of Directors if they are not satisfied with the rulings. The decision of the Board is final but an aggrieved complainant may pursue a legal remedy if he wishes.[286] The TIC has real power over all member agents because all licences granted under the Travel Agents Ordinance (Cap 218) are subject to the condition that the agent is and remains a member of the TIC.[287] An agent cannot carry on its business if its membership is terminated by the Council. The law also requires a travel agent to pay a levy to the TIC and contribute to the Travel Industry Compensation Fund. The Travel Industry Compensation Fund Management Board may impose a financial penalty on any agent that fails to pay such levies.[288] An agent that defaults in payment is also liable to have its licence suspended or revoked.[289]

10.31 The advantage of this option is that the HKPC could cover all newspapers without making the Council a statutory body, thus avoiding any arguments as to whether the establishment of a statutory press complaints body is compatible with the ICCPR. Once a newspaper becomes a member of the HKPC and bound by its Articles of Association, the Council may enforce its adjudication by contract against the newspaper for any breach of its journalistic code.

10.32 However, not all newspapers are willing and able to finance the Council by paying a levy. Besides, the idea of de-registering a newspaper on the ground that it has been expelled by the HKPC for failing to pay a levy or to comply with its adjudication on one or more occasions does not sit comfortably with "freedom of speech, of the press and of publication" under the Basic Law. The powers of the HKPC would be excessive if failure to comply with its adjudication would result in the offending newspaper being deprived of its right to freedom of expression. It is, of course, possible not to give the Council a power to expel a newspaper for flagrant or persistent violation of its code of conduct. The law may provide that all newspapers could retain their membership as long as they pay the prescribed levy. However, having regard to the decision of the Inter-American Court of Human Rights on compulsory membership in a journalists' association and the Declaration of Chapultepec which states that "the membership of journalists in guilds, their affiliation to professional and trade associations … must be strictly voluntary",[290] it is open to an unwilling newspaper to challenge the lawfulness of the requirement on the basis that making the exercise of freedom of expression conditional on membership in the HKPC is contrary to Article 19 of the ICCPR and unconstitutional under Article 27 of the Basic Law. Due to these difficulties, we have decided not to pursue this option further.

>Better protection of media critics

Make legal aid available for defamation proceedings

10.33 Legal aid is not available for defamation proceedings other than the defence of a counterclaim alleging defamation. This means not only that the wealthy could enjoy privileged access to court, but also that a resourceful media organisation may tarnish the reputation of the less well-off or publish a deliberate lie about them, knowing that they can never afford to pay the vast legal fees of a defamation action. Making legal aid available for defamation proceedings has the advantage of protecting the public's freedom to criticise abusive media practices without the fear of having to face expensive litigation on their own.

10.34 The HKJA and the HKPPA supported extending legal aid to defamation proceedings. The HKJA pointed out that defamation proceedings, particularly those involving the media, are lengthy and involve highly experienced counsel. Journalists are therefore wary when covering large companies and tycoons. On the other hand, ordinary citizens have little recourse when an inaccurate news report seriously injures their reputation, or even their livelihood. This is particularly so when some publishers may take less care reporting events about ordinary citizens than those about the rich and powerful.[291] The Association believed that this proposal would obviate the need to provide the HK Press Council with immunity from libel actions and the need to protect the Council's statements by qualified privilege.

10.35 However, the HKPC had reservations with the proposal to extend legal aid to cover all defamation proceedings. They pointed out that it would encourage some members of the public to sue media organisations for personal gain, and would result in a proliferation of libel suits filed against the press, thereby increasing the drain on public funds and bringing a negative impact on press freedom.[292]

10.36 The Law Society of HK was of the view that extending legal aid to defamation proceedings would not be a wise use of funds for the following reasons:

(b) defamation proceedings are instituted to enforce rights that are not essential to a person's well-being;

(c) the Legal Aid Department would be flooded with applications from persons who claimed that they have been defamed in a domestic dispute or otherwise; and

10.37 In 1983, Geoffrey Robertson, QC, expressed the opinion that extending legal aid for libel was not a satisfactory solution to the problem of securing redress for factual misstatements. Libel law could not "provide a remedy for all, or even most, factual mis-statements" since it could only be invoked when the false statement had damaged the individual's reputation. Extending legal aid to libel actions would result in "more ‘gagging' writs, more gold-digging actions, more public-interest stories put on the spike because of the impossibility of proving them by admissible evidence, and more dilution of free speech".[294]

10.38 The Administration considered that defamation proceedings should be excluded from the legal aid scheme for the following reasons:[295]

(a) It is difficult to predict the outcome and assess the merits of a case alleging defamation in determining whether to grant legal aid to the parties involved.

(b) Making legal aid available to the parties in defamation actions may lead to a proliferation of disputes and frivolous litigation.

(c) Defamation actions are not covered by legal aid in many jurisdictions, such as Australia, Denmark, Ireland, Ontario, Singapore, Sweden and the UK.

(d) Excluding legal aid for defamation proceedings does not deprive a person of his right of access to court, nor does it interfere with a person's right to freedom of expression.[296]

10.39 Although extending legal aid to defamation proceedings would enable media critics to defend defamation proceedings with legal assistance, the fact that the Administration, the HKPC and the Law Society were all against the proposal renders it unlikely that the proposal would be implemented in the near future.

Attach qualified privilege to media reports of statements made by journalists' associations on media ethics

10.40 The four major journalists' associations proposed to accord qualified privilege to statements issued by the professional journalists' associations on the ethical standards of individual news organisations.[297] This proposal aims at protecting the journalists' associations instead of affording a remedy for the victims. It would not provide sufficient relief to the victims because it is highly unlikely that the newspaper concerned would publish critical statements issued by the associations. Besides, the journalists' associations usually speak out against unethical practice in extreme cases only. Even if an association has issued a critical statement, it provides no relief if it is not widely reported in the press. There are also a number of difficulties with the proposal. For example, what kind of journalists' associations should be included?[298] What type of statements should be privileged? Are there any policy objections to according privilege to statements issued by a private association with low membership that may criticise the conduct of a non-member? Should the law give preferential treatment to comments on media ethics as opposed to ethical issues of other professions? Should the law distinguish between discussion of media ethics and discussion of other matters of serious public concern?[299] We therefore doubt if this option is viable.

Introduce a new defence to defamation actions

10.41 It has been proposed that the law of defamation be developed or reformed so that the US Supreme Court decision in New York Times v Sullivan[300] could be followed in Hong Kong.[301] The Court in Sullivan held that a "public figure" (a concept that may be expanded to include the media) has to show that the statement published by the defendant was not only defamatory but also actuated by malice, that is, the statement was made with knowledge of its falsity or was made with reckless disregard of whether it was true or not.

10.42 Various law reform bodies in Australia have studied the desirability of introducing the public figure test but all rejected its adoption in Australia.[302] Both the Faulks Committee and the Neill Committee were also against its adoption in the UK.[303] The Neill Report stated:

"Standards of care and accuracy in the press are, in our view, not such as to give any confidence that a ‘Sullivan' defence would be treated responsibly. It would mean, in effect, that newspapers could publish more or less what they liked, provided they were honest, if their subject happened to be within the definition of ‘public figure'. We think this would lead to great injustice. Furthermore, it would be quite contrary to the tradition of our common law that citizens are not divided into different classes. What matters is the subject-matter of the publication and how it is treated, rather than who happens to be the subject of the allegations."[304]

10.43 We agree that the test is simple and easily understood, and accords more weight to freedom of expression on matters of public interest. However, we do not believe that it should be adopted in Hong Kong. Firstly, the constitutional privilege accorded in Sullivan is essentially founded on the First and Fourteenth Amendments to the US Constitution, which are not relevant in the Hong Kong context.[305] Secondly, the trade-off for a wider defence and the plaintiff having the burden of proof is the requirement of full disclosure by way of pre-trial discovery. Unless the rule against disclosure of journalistic sources is also reformed so that a plaintiff is entitled to a pre-trial enquiry into the sources of the story and editorial decision-making, it is unacceptably difficult for the plaintiff to prove reckless disregard of the truth.[306]

More effective remedies for victims of press intrusion

Reform the law of libel

(a) Libel law is irrelevant if what a newspaper disclosed about an individual's private life or behaviour is true.

(b) Not all inaccurate or misleading statements can be rectified by libel law. Libel law provides a remedy only if a false statement has a tendency to injure a person's reputation. Most false or inaccurate statements published in the newspapers about an individual do not bear a defamatory meaning. A statement is not defamatory simply because it is false.

(g) Libel law discourages the making of statements about matters of public interest because a newspaper has the burden of proving that the statements published by it are true. It will be difficult for a newspaper to discharge this burden according to the strict rules of evidence if the informant has died, is out of the jurisdiction, supplied the information in confidence, or refuses to give evidence.

Seek civil remedies under the proposed privacy torts

10.45 We have recommended in our report on Civil Liability for Invasion of Privacy that the following acts or conduct should be civil wrongs if they are committed without justification:

(a) intrusion upon the solitude or seclusion of another or into his private affairs or concerns in circumstances where he has a reasonable expectation of privacy, provided that the intrusion is seriously offensive or objectionable to a reasonable person;

(b) giving publicity to a matter concerning the private life of another, provided that the publicity is of a kind that would be seriously offensive or objectionable to a reasonable person.

10.46 If those recommendations were implemented, they would go some way towards resolving the problem. Under the proposals, victims of media intrusion would be able to seek redress by bringing a civil action if the conduct of a journalist or media organisation constitutes one of the two torts of invasion of privacy. If journalists and media organisations may be held responsible for their actions and required to pay damages, there would be incentives for them to take appropriate level of care. The victims would also be able to take private action to enforce their rights rather than relying on Government action to do so.

10.47 As far as intrusion upon solitude or seclusion is concerned, it may be difficult for the victim to find out the name of the journalist concerned if the intrusion is effected with the assistance of a hidden device or without the notice of the victim, as when he is asleep, unconscious or bedridden at the material time. Where details of the victim's private life are published in a newspaper but his name is not disclosed in full or his facial features are obscured in the picture, the victim may have difficulties showing that the impugned publication constitutes an unwarranted "publicity" concerning his private life.

10.48 Furthermore, the majority of victims of media intrusion are not persons of means. The civil remedies would not benefit them to the same extent as the rich unless they are entitled to legal aid and are willing to take the time and trouble to bring a civil action. A victim who cares to sue a newspaper has to pay court fees; bear his own costs, such as taking a day off to attend trial; pay the costs of his lawyer; pay the costs of any expert testimony or witnesses; and run the risk of losing the case and having to pay the other party's legal costs. Where the complaint is of minor financial importance, the injury is intangible and difficult to prove, or the victim suffers no injury to feelings because he is unconscious or have mental problems, the risks do not warrant instituting legal proceedings because the court is likely to award only nominal damages. Going to court is time-consuming and stressful not only because the victim has to follow the legal procedures, but also because the newspaper may appeal against a ruling in the victim's favour, thus adding to his legal costs.

10.49 Another drawback is that civil procedure is formal and adversarial in nature. It is not geared to mediation or conciliation. A victim of unwarranted publicity may also want to avoid the risk of the press pursuing him or his family members after filing the writ, and giving further publicity to the very information which the victim once sought to keep private. There is also a risk of a newspaper giving publicity to other private information about the victim or a family member that is irrelevant to the original complaint. Those who are bereaved or have attempted to take their own lives or are victims of crime, accidents or tragedies are particularly vulnerable. They are unlikely to seek redress by commencing legal action in open court against the journalists or publishers concerned.

10.50 Furthermore, some cases may or may not be covered by our civil liability proposals. Examples are:

(a) journalists takingpictures of a victim of an alleged rape or other offence at the scene of the crime or when she is attending trial without her consent;

(b) newspapers taking or publishing pictures that would intrude into the grief or shock of persons who have lost their loved ones;

(ii) a person whose genitals or breasts have been injured as a result of a crime or accident;

(iii) a mentally ill person who is, or has been, acting strangely in a public place;

(iv) a person whose private parts or underwear are exposed in public as a result of a crime or accident if the private parts or the facial features are obscured in the pictures;

(d) newspapers revealing the full names and/or residential addresses of the parties concerned when covering the events leading to the suicide, crime, accident or tragedy;

(e) newspapers publishing the details of the private life of a victim or a witness which have been disclosed in open court. These facts may relate to the victim's intelligence, occupation, financial position, sexual orientation, sex life, ability to conceive a child, medical history, family background, or relationship with an intimate partner;

(f) newspapers publishing the private or family photographs of an individual in which the individual or his friends or family members are included; and

(g) newspapers reporting that a named person is "suspected of" having a mistress on the mainland, or "suspected of" having cancer or AIDS.

10.51 Victims of media intrusion want their complaints looked into by an independent, impartial and competent body, but they also want a quick, simple, informal and fair procedure that is free of charge to deal with their complaints without the assistance of a lawyer. Besides, not all victims are interested in seeking monetary compensation or injunctive relief; they may well be satisfied with a declaration in their favour plus a public apology from the media organisation concerned. It is necessary to establish an effective alternative forum for the resolution of disputes – a forum which can provide a quicker and cheaper remedy than that provided by a court of law.

Set up a legal fund to help victims of press intrusion

10.52 If the privacy torts proposed in our Civil Liability Report were created, then plaintiffs who are willing to bring civil proceedings for invasion of privacy would be entitled to apply for legal aid. However, not all aggrieved individuals can satisfy the means test. In this connection, we note that Professor Leonard Chu has suggested that a fund be set up to help victims seeking legal redress.[308] The purpose of the fund would be to make access to court less financially prohibitive to ordinary citizens.

10.53 However, the legal costs involved may be very high and a major newspaper may appeal against an adverse ruling all the way up to the Court of Final Appeal. Given the current economic climate, it is doubtful whether the Government or any private bodies would provide the necessary funds for the establishment and maintenance of such a fund.

10.54 Furthermore, the actions for invasion of privacy and defamation could not fully address the concerns of victims of media intrusion. The suggestion overlooks the fact that the ability to pay legal costs is not the victims' only consideration. The fund would not save victims from the time and trouble of bringing a lawsuit even though a legal remedy is available and victims do not have to bear the legal costs. Many victims of media intrusion are unwilling to become involved in litigation, particularly when they have already experienced a trauma by reason of a crime, accident or tragedy. Nor is monetary compensation their primary concern. Any compensation awarded by the court is unlikely to be significant unless the victim has suffered psychiatric injury or his career or business interests have been ruined as a result. Many victims also prefer to pursue their remedies away from the glare of publicity, which is difficult to achieve if they bring legal proceedings. Their primary purpose is usually to vindicate their claim by asking the newspaper concerned to publish an apology or correction. Creating a litigation fund is of no practical assistance to these victims.

Establish a statutory commission without sanctions against media intrusion

10.55 This option is modelled on the existing Consumer Council created by the Consumer Council Ordinance (Cap 216).[309] The functions of the commission could be confined to the protection of individuals from unwarranted media intrusion by:

(e) assisting victims to obtain redress through court actions if a remedy is available at law;

(g) promoting public awareness of their right against media intrusion under Article 17 of the ICCPR through education and publicity;

(h) prescribing a voluntary code with detailed guidelines for the media to follow; and

(i) publishing its findings and general information about media intrusion for the information of the industry and the public.

10.56 The emphasis of the commission would be on education, publicity, mediation, research and standards setting. It would seek to induce changes in the behaviour of journalists by bringing public pressure to bear. However, the commission would have no sanctions at its disposal, nor would its findings and recommendations be binding on the media organisations. In our view, victims of media intrusion should be entitled to have their grievances vindicated by the offending organisations publishing the findings of an adjudicating body with due prominence. Bearing in mind the experience of the HK Press Council and the attitude of the public and certain newspapers towards the Council, we do not believe that a commission without sanctions would have a deterrent effect and succeed in achieving its objects.

Appoint a statutory Press Ombudsman

10.57 This option is modelled on that recommended by the National Heritage Committee of the House of Commons in the UK.[310] Under this option, anyone dissatisfied with the outcome of an investigation by the HK Press Council could have recourse to a statutory Press Ombudsman with an independence and authority equivalent to that of a High Court Judge. The Ombudsman would be obliged to:

(a) investigate complaints submitted to the HKPC whose outcome is not satisfactory to one of the parties involved;

(d) impose a financial penalty on newspapers responsible for flagrant or persistent breaches of the code.

10.59 Where a newspaper refuses to pay a fine or compensation, the Ombudsman would be able to seek an order from the Court requiring the newspaper to pay. Any newspaper which dissents from the Ombudsman's decision would be entitled to ask the Court to discharge the order.

10.60 We are not aware of any jurisdiction having a statutory press ombudsman to adjudicate on public complaints about the press. Sweden has a press ombudsman but his rulings may be reviewed by the Swedish Press Council, not the other way round. It is unusual to have the collective decisions of a press council reviewed by a press ombudsman who is not acting in a judicial capacity.

Government regulation by setting up a Press Authority

10.61 Explicit Government regulation attempts to change the conduct of a business by detailing how members of an industry should act. It generally relies on Government inspectors and/or monitoring to detect non-compliance and imposes punitive sanctions (such as fines) if the regulations are not complied with. This option entails the establishment of a Press Authority with the backing of a Government department, using the Broadcasting Authority and its executive arm, the Television and Entertainment Licensing Authority, as a model. Although there is a pressing social need to protect individuals from unwarranted press intrusion, we do not consider that it warrants the intervention of the Government to the same extent as that called for by the broadcasting industry.

Regulation by a Press Privacy Complaints Tribunal

10.62 The option of setting up a Press Privacy Complaints Tribunal draws on the experience of the Obscene Articles Tribunals, the Small Claims Tribunal and the Labour Tribunal.[311] The proposed Tribunal would be a judicial body with jurisdiction to deal with complaints about unwarranted press intrusion. Its Chairman would be a magistrate appointed by the Registrar of the High Court. For hearings, the Chairman could sit with four adjudicators selected from a panel appointed by the Chief Justice, with half of the adjudicators at each hearing representing the press and the other half representing members of the public.

10.63 The pool of adjudicators representing the press could include the chief and deputy editors of all the mainstream newspapers and magazines, journalists and editors recommended by the journalists' and publishers' associations, and all the academics at the journalism institutes. As for adjudicators representing members of the public, they could be drawn from applications submitted by members of the public as well as nominations made by NGOs. To ensure fairness, the adjudicators in the panel could be selected to attend hearings according to a roster.

10.64 The Press Privacy Complaints Tribunal would be able to inquire into complaints from individuals whose privacy has allegedly been unjustifiably invaded by a newspaper or magazine (including complaints about inaccuracies); to attempt conciliation; to hold hearings; to rule on complaints; to warn an offending newspaper or magazine; to require it to publish an apology, correction or decision of the Tribunal; and to award compensation up to a specified limit.

10.65 The Tribunal could be assisted by investigation officers whose duty is to inquire into the facts of the complaint and prepare a summary of facts for the Tribunal.[312] To encourage amicable settlement of complaints, an investigation officer could attempt conciliation before a hearing.[313] The hearings could be conducted in an informal manner and the parties would not be represented by lawyers except with permission. There could be a right of appeal to the Court against an adverse ruling or on any point of law. Reports of the public proceedings of the Tribunal could be protected by qualified privilege.[314]

(b) The running costs of the adjudicating body would be met from public funds and would not therefore be a burden on the industry itself.

(c) Having a magistrate as the Chairman would ensure public confidence in the fairness and impartiality of the proceedings.

(d) Since the Tribunal would be free to develop principles on a case-by-case basis, many of the problems arising from the drafting and enforcement of a code of ethics or practice could be avoided.

(e) Since the Tribunal would have jurisdiction over all local newspapers and magazines, the problem of the HKPC not covering the whole industry would disappear.

10.67 However, these advantages are outweighed by the following significant disadvantages:

(a) The Tribunal would not be a self-regulatory body. The role played by the press in the development of standards would be minimal. The press would not have any sense of ownership over the proceedings.

(b) The appointment of adjudicators representing press or public interests would be in the hands of the Judiciary, not the industry or the profession, or the community at large.

(c) It would be undesirable to draw the Judiciary into an area of likely controversy by making the Chief Justice responsible for appointing members to the panel of adjudicators.

(d) Since different adjudicators would hear different cases without the assistance of a code, the standards applied by the Tribunal would differ from case to case. The Tribunal may therefore produce findings that are inconsistent and cause confusion to the industry.

(e) The concept of unwarranted press intrusion is vague. In the absence of a code of practice, the Tribunal would have difficulty forming a view as to whether an intrusion is warranted or not. The development of the principles underlying the concept of unwarranted press intrusion would be slow and there would be a period of uncertainty at least during the initial stage. Although the Tribunal may be empowered to have regard to such jurisprudence or codes as it considers relevant in adjudicating a complaint,[315] there is no consensus as to which codes or precedents it should follow. Different tribunals may consult different codes and precedents in different jurisdictions, resulting in even more uncertainty.

(f) If the Tribunal were to have the power to award compensation, there would in effect be a new tort created, overlapping with those recommended in our Report on Civil Liability for Invasion of Privacy.

(g) Vesting a tribunal with the power to provide judicial remedies would defeat the purpose of finding an alternative means of dispute resolution for victims of press intrusion.

Prescribe a mandatory press privacy code without creating a statutory body

10.68 This option involves legislation prescribing a privacy code for the press, enforceable by private legal action against all publications. A statutory code is desirable where the standards prescribed in a voluntary code cannot meet public expectations or the voluntary code fails to achieve compliance by all major players. Any risk of undue influence from the Government could be minimised by the creation of an independent code committee with the members nominated by the press, with or without the participation of NGOs. To make the code effective, the law could provide that any individual aggrieved by a breach of the code has a right of action against the newspaper concerned in a court of law.

10.69 The advantage of this option is that the statutory code can be enforced by private action by the aggrieved individuals, and not by public action by a statutory authority. It therefore does not require the involvement of a statutory body such as the Privacy Commissioner or a Press Authority to enforce the code. However, the enforcement of a privacy code for the press by private action overlaps with the civil remedies proposed in our Civil Liability Report. It suffers from the same weaknesses as civil remedies[316] and cannot help victims who prefer extra-judicial remedies.

Provide legislative backing to a voluntary press privacy code

10.70 The HK Press Council already applies the Journalists' Code of Professional Ethics but few, if any, mainstream newspapers have incorporated the Code into their journalists' employment contracts. The Government may therefore choose to enforce the Code by giving it legislative backing in one way or another. Underpinning a code is justified where self-regulation has failed through inadequate compliance and coverage. Legislative measures are not objectionable if they merely provide the means for the industry to achieve effective self-regulation on the basis of a voluntary code.

10.71 One way to implement this option would be to provide that any alleged victim of press intrusion may bring legal proceedings against a newspaper or journalist for breach of the Journalists' Code of Professional Ethics. Making the Journalists' Code enforceable by private action would have the effect of making a breach of the voluntary code into a statutory tort. However, this option is not preferred because: (a) the remedy would overlap with the privacy torts proposed in our Civil Liability Report; (b) the press is likely to object to the introduction of legislation attaching legal consequences to breaches of a voluntary code; and (c) many victims prefer an alternative remedy which is speedier and more accessible than seeking redress in a court of law.

10.72 Another way to underpin a voluntary code would be to create an independent press complaints body which has power to grant extra-judicial remedies for breaches of a voluntary code adopted by the complaints body. Since this option requires the creation of a statutory body, the press might be concerned that it would lead to Government interference with press freedom. In order to enable us to have an informed discussion as to the best way forward, we withhold discussion of this option until we have examined in the next chapter the experience of press councils and similar bodies in other jurisdictions.

[266] See R Wacks, "Privacy and the Press", The Correspondent, Oct-Nov 1999, pp 6-9.

[267] Such pressure might come from the market, pressure groups, political parties, the legislature, or the threat of government intervention. The success of self-regulation varies with the strength of these pressures. N Gunningham & J Rees, "Industry Self-Regulation: An Institutional Perspective", Law and Policy, Oct 1997, vol 19, no 4, 363 at 390-391.

[268] Submission from Dr Kwan Kai Man entitled "Which is More Important: Press Freedom or Media-Monitoring? – Comments on the Press Council Debate" (1999).

[269] See Parliamentary Assembly of Council of Europe, Recommendation 1466 (2000) on Media Education, at <http://stars.coe.fr/ta/ta00/EREC1466.HTM>. The Secretary for Home Affairs reported at the LegCo meeting on 17.11.99 that: (a) the curricula of primary and secondary schools contained messages on media education; (b) the tertiary institutions and the Education Department offer media education courses for teachers; and (c) the Quality Education Fund had approved a sum of $5.8 million for youth organisations and four schools to organise activities on media education: Legislative Council – 17 November 1999, p 1432. Project No 2000/2296 of the Quality Education Fund has also allotted $415,600 to the Society for Truth and Light for the purpose of organising media education workshops in 40 secondary schools in 01/02 and 02/03.

[270] Apple Daily, 9.11.98, A 1.

[271] Apple Daily, 8.10.98; Chu v Apple Daily [2001] HKCU 1, paras 66 and 96.

[272] The sales of all "scandal magazines" were said to have gone up six weeks after Eastweek's closure: "Scandal mags mutate and thrive", South China Morning Post, 16.12.02.

[273] T Gibbons, Regulating the Media (London: Sweet & Maxwell, 1998), pp 46-48.

[274] J C Merrill, "The Marketplace: A Court of First Resort", in E Dennis, D M Gillmor & T L Glasser (ed), Media Freedom and Accountability (Greenwood Press, 1989), ch 2, p 16.

[275] 戴胡子, "明報不是冤情大使", 23.11.98, D6.

[276] HKJA press release, 22.11.98.

[277] For an overview of the institution of "news ombudsman", visit the Organisation of News Ombudsmen at <www.infi.net/ono/what.htm>.

[278] F Ching, "Learning Self-Control – Hong Kong's media are torn between ethics and profits", Far Eastern Economic Review, 17.12.98, p 25, quoting Yeung Wai-hong.

[279] Apple Daily's submission was published in their newspaper on 1.12.99.

[280] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am Ct HR (Series A) No 5 (1985), para 81. Article 13(1) & (2) of the American Convention is similar to Article 19 of the ICCPR.

[281] Above, paras 70-73.

[282] Adopted by the Hemisphere Conference on Free Speech held in Mexico City on 11.3.94, Principle 8, which provides: "The membership of journalists in guilds, their affiliation to professional and trade associations and the affiliation of the media with business groups must be strictly voluntary."

[283] Declarations on Promoting Independent and Pluralistic Media, 6.5.94, agreed by the participants in the UN/UNESCO/UNDP "Seminar on Media Development and Democracy in Latin America and the Caribbean" held in Santiago from 2-6 May 94, para 8 (declaring that "In accordance with the fundamental rights of expression and association as stated in the Universal Declaration of Human Rights, the access to and the practice of journalism must be free, and not limited by any means").

[284] Resolution No 2 on Journalistic Freedoms and Human Rights by the 4^th European Ministerial Conference on Mass Media Policy (Prague, 7-8 Dec 1994), Principle 3(a), declaring that "unrestricted access to the journalistic profession" enables journalism to contribute to the maintenance and development of genuine democracy.

[285] The Faulks Committee made recommendations on the practice and procedure relating to actions for defamation, while the Neill Committee proposed changes to reduce the complexity of the procedure without having an adverse effect on the interests of justice.

[286] J Tung, "Redress Mechanisms – Trade and Professional Related Complaints Resolution Mechanisms"; paper delivered at the Consumer Council Conference on Consumer Redress Mechanism on 26.4.00.

[287] Section 11.

[288] Travel Industry Compensation Fund (Amount of Ex gratia Payments and Financial Penalty) Rules (Cap 218), r 6.

[289] Cap 218, s 19(1)(d).

[290] Principle 8. See also Declarations on Promoting Independent and Pluralistic Media, above.

[291] Submission to the LegCo Panel on Administration of Justice and Legal Services from the HKJA on the provision of legal aid services, LC Paper No CB(2)1692/01-02(07) (25 April 2002); HKJA, "HKJA Position Paper on Defamation Legal Aid" at <www.freeway.org.hk/hkja/press_free/statement/Legal%20Aid.htm> (26.6.02).

[292] Submission from the HKPC to the LegCo Panel on Administration of Justice and Legal Services, LC Paper No CB(2)1692/01-02(03) (25.4.02), para 3.

[293] Submission from the Law Society to the LegCo Panel on Administration of Justice and Legal Services, LC Paper No CB(2)1692/01-02(06) (25.4.02), para 4.

[294] G Robertson, People against the Press: An Enquiry into the Press Council (London: Quartet Books, 1983), p 136.

[295] Information Paper on "Legal Aid for Proceedings in respect of Defamation" from the Chief Secretary for Administration's Office to the LegCo Panel on Administration of Justice and Legal Services, Nov 2000.

[296] Steel and Morris v UK, Application No 21325/93 (European Commission of Human Rights).

[297] Statement issued by the HKNEA, HKJA, HKFJ and HKPPA on 19.9.99, para 5.

[298] There are other journalists' associations in existence apart from the HKNEA, HKJA, HKFJ and HKPPA.

[299] Cf Reynolds v Times Newspapers Ltd [1999] 4 All ER 609.

[300] (1964) 376 US 254.

[301] 李少南, "報業評議會矯枉過正", Apple Daily, 16.9.99.

[302] J Tobin, "The US public figure test: Should it be introduced into Australia?" (1994) 17 UNSWLJ 383; New South Wales Law Reform Commission, Defamation (Report 75, Sept 1995), ch 5 (noting that the public figure test appears to contribute to the problems of lengthy and costly proceedings).

[303] Report of the Committee on Defamation (London: HMSO, Cmnd 5909, 1975) (Chairman: The Hon Mr Justice Faulks), para 617. ("We oppose it most strongly because we believe that here it would in many cases deny a just remedy to defamed persons.")

[304] Supreme Court Procedure Committee, Working Group Report on Practice and Procedure in Defamation (Chairman: Lord Justice Neill), July 1991, section XIX 3.

[305] Faulks Report, above, para 610 & 617; Reynolds v Times [1998] 3 WLR 862, 908-909 (CA).

[306] Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 (HL). "[A] plaintiff's ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification." Per Lord Nicholls.

[307] See G Robertson, People Against the Press: An Enquiry into the Press Council (London: Quartet Books, 1983), pp 135-139.

[308] He proposes that a fund be set up to pay for the legal costs incurred by citizens involved in litigation. The fund would have the right to decide whether to proceed with a lawsuit or not, and any damages awarded by the court would be paid into the fund. He hopes that wealthy people and other members of the public could contribute to the fund. Comments made by Prof Chu at the RTHK television programme Media Watch on 27.11.99.

[309] Reports of statements issued for the information of the public by the Consumer Council are protected by statutory qualified privilege.

[310] Privacy and Media Intrusion, Fourth Report, (London: HMSO, 294-I, 1993) Volume I - Report & Minutes of Proceedings, pp xxi – xxiii.

[311] Control of Obscene and Indecent Articles Ordinance (Cap 390), Part II; Small Claims Tribunal Ordinance (Cap 338); and Labour Tribunal Ordinance (Cap 25). Note that this option is not modelled on the press complaints tribunal recommended by David Calcutt QC in his Review of Press Self-Regulation (1993). Cf the Press Arbitration Commission in South Korea introduced in Chapter 11.

[312] Cf Labour Tribunal Ordinance (Cap 25), s 14.

[313] Cf Labour Tribunal Ordinance (Cap 25), s 15.

[314] Defamation Ordinance (Cap 21), section 14 and para 10 of the Schedule.

[315] Cf Control of Obscene and Indecent Articles Ordinance (Cap 390), ss 2(2), 2(3) & 10; Human Rights Act 1998 (UK), s 12 (referring to "any relevant privacy code").

[316] See section on "Seek civil remedies under the proposed privacy torts" in Chapter 10 above.

Hong Kong Law Reform Commission

Chapter 10 - Other suggested options