Hong Kong Law Reform Commission

Chapter 3 - Press freedom and freedom from media intrusion

• Freedom of the press
• International Covenant on Civil and Political Rights
• American Convention on Human Rights
• European Convention on Human Rights
• Council of Europe

3.1 Any proposal to protect individuals from media intrusion must not create undue restrictions on press freedom. The public interest is best served by an ample flow of information to the public concerning matters of public interest to the community. The press play an essential role in imparting matters of public interest to the community. It is important that their ability to do so is not stifled. Our object is therefore to protect the private lives of citizens from media intrusion without undermining press freedom.

3.2 We examine in this chapter the functions of the right to freedom of expression and how that right interacts with the right to privacy.[22] It will be seen that while the protection of privacy may impinge on freedom of expression, the exercise or abuse of freedom of expression may infringe the right to privacy. The International Covenant on Civil and Political Rights recognises this conflict. It protects privacy only from "arbitrary or unlawful" interference, while the exercise of the right to freedom of expression carries with it "special duties and responsibilities" and may be subject to legal restrictions permissible under the Covenant.

Freedom of the press

3.3 Article 27 of the Basic Law protects freedom of the press in addition to freedom of speech and of publication. A study into the background to the drafting of Article 27 reveals that there were conflicting views within the Consultative Committee as to whether all aspects of press freedom are covered by "freedom of speech and of publication". The local press therefore felt that freedom of the press should be expressly stipulated in the Basic Law so that press freedom could be guaranteed.[23]

3.4 Press freedom is important because the press is a medium for publishing information and ideas, and journalism is the primary and principal manifestation of freedom of expression. The HK Court of Final Appeal has this to say about freedom of expression:

"Freedom of expression is a fundamental freedom in a democratic society. It lies at the heart of civil society and of Hong Kong's system and way of life. The courts must give a generous interpretation to its constitutional guarantee. This freedom includes the freedom to express ideas which the majority may find disagreeable or offensive and the freedom to criticise governmental institutions and the conduct of public officials."[24]

3.5 The House of Lords in the UK recognised that freedom of expression serves a number of objectives:

"First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Mr Justice Holmes (echoing John Stuart Mill), ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market.' Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country."[25]

3.6 English common law is inapplicable to questions concerning freedom of the press in the US. The First Amendment to the US Constitution contains express prohibitions against the enactment of laws which would abridge freedom of speech or of the press. Any government action that chills constitutionally protected speech contravenes the First Amendment. Thus, although there is authority that a statute may constitutionally prohibit the publication of the name or identity of the victim of a sexual crime, a state may not impose sanctions on the accurate publication of the name of a rape victim obtained from public records.[26] Statutes violating the First Amendment include those which make it a crime for a newspaper to publish, without the written approval of a juvenile court, lawfully obtained, truthful information identifying by name a youth charged as a juvenile offender; or prohibit the publication in a newspaper of the name or picture of any child under the jurisdiction of the family court, except as authorised by the court.[27] The First Amendment also provides some protection for news agencies' efforts to gather news and protects their right to receive protected speech. However, the First Amendment right to gather news does not guarantee to the press a constitutional right of special access to information or places not available to the general public.[28] Newspapers in the US are not immune from the application of general laws. A newspaper publisher has no special privilege to invade the rights and freedoms of others.

3.7 The press is singled out for protection in many constitutions because it is particularly vulnerable to Government control. Unless checked by the constitution, the Government can impose restrictions on the press directly or indirectly, such as through the imposition of heavy taxation on publishing companies, requirements for large bonds to start a newspaper, and injunctions against future issues.[29]

3.8 The press can play the role of professional critics by acquiring enough information to pass judgment on the actions of the Government, and disseminating such information and judgments to the general public.[30] As observed by the European Court of Human Rights:

"Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society."[31]

3.9 By and large, the local press has been free to play the role of professional critic. Over the years, local newspapers have been used as a medium to criticise the Qing dynasty, warlords, the Chiang administration, Japanese militarism, colonialism and Communism. Since the Government decided to introduce democracy in the late 1980s, many councillors, political groups and columnists have also criticised the Government through the press.[32] Indeed, a recent study found that 58% of local journalists consider that the most important function of newspapers is to monitor the Government.[33]

3.10 Some may therefore argue that Article 27 of the Basic Law should be construed as creating a fourth institution outside the Government as an additional check on the executive, legislature and judiciary. Under the Basic Law, the Government is accountable to the legislature, and all legislators will ultimately be elected by universal suffrage. In an age of transparency and accountability, the public's right to know extends to matters concerning the workings of the Government and what is being done in their name by their representatives in the legislature. If democracy is to function effectively, it is essential that the public is adequately informed as to the actions of Government officials and members of the legislature.[34]

3.11 Apart from the important role played by the press in scrutinising the activities of the Government, press freedom also serves to protect the public from the improper or wrongful conduct of private individuals who are involved in public affairs, particularly those who are powerful and influential in society. Matters relating to the public life of the community and those who take part in it are plainly matters of public interest. The expression "public life" includes not only activities such as the conduct of Government and political life, elections and public administration, but also matters such as the governance of public bodies, institutions and companies which give rise to a public interest in disclosure.[35] Those who engage in public life must expect that their public conduct will be the subject of scrutiny and criticism. The freedom of the press in exposing unlawful or improper conduct should not be undermined.

3.12 However, the constitutional right of free speech in Article 27 is not absolute.[36] Although freedom of the press is important for democracy and the public, it does not give a special right to media organisations to unjustifiably exploit other people's private lives for commercial gain. It is essential to distinguish between the public's interest in information and the interest of a democratic system in having a free press on the one hand, and the commercial interests of media organisations on the other. When weighing the commercial interests of media organisations against the interest of an individual to enjoy a protected private life, one has to look at what is being put onto the scales of press freedom: forced commercialisation of others or important information for the public.[37]

3.13 We must, however, stress that any interference with the press has to be justified. Such interference inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it must be justified.[38] Lord Nicholls said:

"To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration and the means employed must be proportionate to the end sought to be achieved. ... It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment."[39]

3.14 The need to justify any interference with press freedom has also been stressed by the Supreme Court of South Africa:

"The press played a critical role in the free exchange of ideas, an essential part of freedom of speech. It was the role of the press to ferret out and expose corruption and maladministration, to contribute to the exchange of ideas and to act as watchdog of the governed. … In order for a law to qualify as a reasonable and justifiable limit on a right or freedom it had to be shown that the law pursued a sufficiently important objective, was rationally connected to that objective, impaired the right no more than was necessary to accomplish such objective and did not have a disproportionately severe effect on the person to whom it applied."[40]

3.15 Our Report on Reform of the Law Relating to the Protection of Personal Data published in 1994 approached the relationship between personal data protection and media freedom "starting from a position that free speech is pre-eminent, but that certain exceptions protecting the individual may prove to be necessary."[41] In its submission, the HK section of JUSTICE queried whether the proposals in the Consultation Paper had deviated from this stance. We maintain the view that the correct starting position is that free speech is pre-eminent, particularly when freedom of speech and of the press is now guaranteed by the Basic Law of the HKSAR. Nonetheless, certain privacy interests are also protected by the Basic Law, including privacy of the person (Article 28), territorial privacy (Article 29) and communications privacy (Article 30). There are no provisions in the Basic Law suggesting that the rights and freedoms in Articles 27, 28, 29 and 30 are in any hierarchical order.

3.16 In addition to the protection of press freedom under Article 27 and the protection of privacy under Articles 28 to 30, the Basic Law also affords protection to these two human rights through Article 19 (freedom of expression) and Article 17 (privacy) of the International Covenant on Civil and Political Rights ("ICCPR"). Article 39 of the Basic Law provides that the provisions of the ICCPR shall be implemented through the laws of Hong Kong, and any restrictions on the rights and freedoms enjoyed by Hong Kong residents must not contravene these provisions. Hence, although restrictions may be imposed on the right to privacy or the right to free speech, they must be provided by law and be compatible with the ICCPR.[42] We examine below how free speech and privacy are reconciled under the Covenant.

International Covenant on Civil and Political Rights

3.17 In addition to the Basic Law, freedom of speech and of the press is protected under the HK Bill of Rights Ordinance (Cap 383) and the ICCPR.[43] Article 19 of the ICCPR provides, inter alia:

"2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals."

3.18 The exercise of freedom of expression may violate the rights of others, including privacy. Contrary to the position in the US where press responsibility is not mandated by the First Amendment to its Constitution,[44] Article 19 of the ICCPR expressly requires that the exercise of the right to freedom of expression carries with it "special duties and responsibilities". The reference to "special duties and responsibilities" was adopted in order to offer States Parties an express tool to counter abuse of power by the modern mass media. States which supported these proposals were of the opinion that freedom of expression was a "dangerous instrument" as well as a precious heritage. They maintained that, in view of the powerful influence the modern media exerted upon the minds of man and upon national and international affairs, the "duties and responsibilities" in the exercise of the right to freedom of expression should be especially emphasised.[45]

3.19 The idea that the exercise of the right to freedom of expression involves "duties and responsibilities" has also been adopted in Article 10(2) of the European Convention on Human Rights. According to Françoise Tulkens, Judge at the European Court of Human Rights,

"The idea is not to establish a sort of parallelism between ‘rights' and ‘duties'. Nor is it to subordinate one concept to the other or maintain that freedom of expression ‘has to be deserved'. More subtly and fundamentally, the wording of the Convention calls on each person concerned, according to his individual or social position in the freedom of expression that is guaranteed, to think in terms both of freedom and of responsibility and to act accordingly. Whoever exercises freedom of expression also undertakes (and I use the word ‘undertake' advisedly, as it means to take upon oneself voluntarily and is quite different from ‘ascribe') the duties and responsibilities which these freedoms entail."[46]

3.20 The UN Human Rights Committee has not commented on the nature of these duties and responsibilities except that it is "the interplay between the principle of freedom of expression and such limitations and restrictions which determines the actual scope of the individual's right."[47] But the expression is generally presumed to include the duty to present information and news truthfully, accurately and impartially.[48] It has also been suggested that it obliges speakers not to abuse their power at the expense of others.[49] In determining the nature of the "duties and responsibilities", it is necessary to ascertain the status of the person in question, the content of the information expressed, and the medium chosen for such expression. It is arguable that a person who chooses to publish in a newspaper private information about children, victims of crime, or other vulnerable persons, is under a special responsibility not to harm the individual concerned.

3.21 Whereas the First Amendment to the US Constitution expressly proscribes any laws abridging freedom of speech or of the press, thereby giving pre-eminence to freedom of expression in reconciling free expression with privacy, Article 19(3) of the ICCPR expressly provides that the exercise of freedom of expression may legitimately be restricted by lawful measures that are "necessary for respect of the rights or reputations of others", including the right to privacy under Article 17, which provides:

"1. No one shall be subjected to arbitrary or unlawful interference with the privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks."

As regards the protection of "public morals" under Article 19(3), it may imply safeguarding the moral ethos or moral standards of a society as a whole, but may also cover protection of the moral interests and welfare of certain individuals or classes of individuals who are in need of special protection because of lack of maturity, mental disability or state of dependence.[50] As far as the protection of individuals is concerned, the expression protects the psychological as well as the physical well-being of individuals.[51]

3.22 Having regard to the fundamental role of journalistic freedom of expression, we consider that any interference with the practice of journalism must: (a) be foreseen in the complete and exhaustive list of restrictions set out in Article 19(3) of the ICCPR; (b) be necessary in a democratic society and respond to a pressing social need;[52] (c) be laid down by law and formulated in clear and precise terms; (d) be narrowly interpreted; and (e) be proportional to the aim pursued.[53]

3.23 We acknowledge that the purpose of protecting the right to privacy is not, of itself, a sufficient reason to restrict expression. Any restriction on freedom of expression imposed by any privacy legislation must be necessary to protect the right to privacy. Since the requirement of necessity implies an element of proportionality, the scope of the restriction must be proportional to the value which the restriction serves to protect. It must not exceed that needed to protect that value.[54]

3.24 Also relevant is Article 5(1) of the ICCPR, which aims at preventing the abuse of any one of the rights and freedoms declared in the Covenant for the purpose of prejudicing one or more of the others. The rights capable of being abused include the freedom of expression. For present purposes, there are two aspects to Article 5(1). First, any limitation on exercise of the right to free expression or the right to privacy must not be greater than is provided for in the Covenant. Secondly, the exercise of the right to free expression cannot aim at the destruction of the right of privacy under Article 17. Conversely, the protection of the right to privacy cannot aim at the destruction of the right to free expression under Article 19.

3.25 Article 19 of the ICCPR provides that freedom of expression includes "freedom to seek, receive and impart information and ideas of all kinds". A motion to replace the word "seek" with "gather", thus excluding the right of active inquiry, was defeated in the UN General Assembly. The States voting against the motion stated that active steps to procure and study information should be protected and that any abuse on the part of journalists could be sufficiently prevented under the limitations clause in paragraph 3.[55]

3.26 The right of the press to acquire information is justified on the grounds that it is desirable to have an informed public which is able to assess the wisdom of governmental decisions.[56] No citizen can obtain for himself all the information needed for the intelligent discharge of his political and social responsibilities. Much of the fact-finding has to be conducted vicariously by the press. The dissemination of information by the press is often the means by which the public first discovers that an issue is a matter of public importance.

3.27 However, the argument that it is a function of the press to keep the public informed on social issues can only justify a right to impart or receive information without undue interference. It does not give the press a privilege to compel others to disclose information which they are unwilling to impart, nor does it entitle the press to use intrusive means to acquire personal information which others wish to keep private. The freedom to seek and receive information under Article 19 does not provide a person with a right to extract information from an unwilling speaker.[57]

American Convention on Human Rights

3.28 The American Convention on Human Rights is open for ratification by the member States of the Organisation of American States. About 25 States are parties to the Convention. Canada and the US are members of the Organisation but neither have ratified the Convention. The right to privacy in Article 11 of the ACHR is similar to that in Article 17 of the ICCPR, but the right to freedom of expression in Article 13 of the Convention is more elaborate than that in Article 19 of the Covenant.

3.29 After declaring that the exercise of the right to freedom of expression is not subject to prior censorship but is subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure respect for the rights or reputations of others, or the protection of national security, public order, or public health or morals, Article 13(3) of the Convention provides that:

"the right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions."

3.30 In contrast to the ICCPR, the right of reply is expressly guaranteed by the American Convention:

"1. Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or make a correction using the same communications outlet, under such conditions as the law may establish. 2. The correction or reply shall not in any case remit other legal liabilities that may have been incurred. …"

3.31 The Inter-American Court of Human Rights hears cases submitted to it by the State Parties or the Inter-American Commission on Human Rights after the latter has examined the matter and expressed its opinion. At the request of a member State of the OAS, the Court may also provide a State with opinions regarding the compatibility of any of its domestic laws with the ACHR. In the Licensing of Journalism case,[58] the Court expressed the opinion that compulsory licensing of journalists is incompatible with Article 13 of the Convention if it denies any person access to the full use of the news media as a means of expressing opinions or imparting information. In the Right of Reply case,[59] the Court advised that Article 14(1) of the Convention recognises an internationally enforceable right to reply or to make a correction, and that when the right is not enforceable under domestic law, the State concerned has the obligation to adopt legislative or other measures to give effect to this right.

European Convention on Human Rights

3.32 Freedom of expression in Europe is also protected by Article 10 of the European Convention on Human Rights. The European Court of Human Rights has expressed the view that freedom of expression constitutes "one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment".[60] Subject to such restrictions as are permissible under Article 10(2), it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the community.[61]

3.33 In enunciating the principles underlining the freedom of expression, the Strasbourg authorities have put a high value on informed discussion of matters of public concern. The European Court of Human Rights has therefore ascribed a hierarchy of value, first to political expression, then to artistic expression and finally to commercial expression.[62] The Court is mindful of the fact that journalistic freedom also covers "possible recourse to a degree of exaggeration, or even provocation".[63] Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless "to impart - in a way consistent with its duties and responsibilities - information and ideas on all matters of public interest."[64] Not only does the press have the task of imparting information and ideas on matters of public interest; the public also has a right to receive them. The role of the press has therefore been described as "purveyor of information and public watchdog".

3.34 Under the European Convention, the exercise of freedom of expression may be subject to such restrictions as are "necessary" in a democratic society for the protection of the reputation or rights of others, or for preventing the disclosure of information received in confidence. The adjective "necessary" has been construed by the European Court as implying the existence of a "pressing social need". In addition, the interference must be "proportionate to the legitimate aim pursued" and the reasons given to justify it must be "relevant and sufficient".[65] The proportionality test implies that the pursuit of the countervailing interests mentioned in Article 10 of the Convention has to be weighed against the value of open discussion of topics of public concern. When striking a fair balance between the countervailing interests and the right to freedom of expression, the court should ensure that members of the public would not be discouraged from voicing their opinions on issues of public concern for fear of criminal or other sanctions.[66]

3.35 Although the European Court in Sunday Times v UK held that it was "faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted",[67] jurisdictions in Europe tend to treat the rights of privacy and free expression as fundamental human rights having equal status. Both the right to freedom of expression and the right to privacy under the European Convention are subject to limitations necessary for the protection of the rights of others.[68] In a resolution on the right to privacy, the Parliamentary Assembly of the Council of Europe[69] declared that the two rights "are neither absolute nor in any hierarchical order, since they are of equal value".[70] It is therefore necessary to find a way of balancing the exercise of two fundamental rights. Where a question arises of interference with private life through publication in the mass media, the State must find a proper balance between the two Convention rights.[71] We note that neither English common law nor most constitutional bills of rights treat the right to freedom of speech as a primary right which always takes precedence over other rights or interests.[72]

3.36 The courts in the UK seem to agree with the Council of Europe that the two rights are of equal value. In Douglas v Hello! Ltd, Sedley LJ held that neither the right to publish under Article 10(1) nor any of the other rights referred to in Article 10(2) is a trump card under the UK Human Rights Act 1998. He said:

"The European Court of Human Rights has always recognised the high importance of free media of communication in a democracy, but its jurisprudence does not - and could not consistently with the Convention itself - give Article 10(1) the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States' courts. Everything will ultimately depend on the proper balance between privacy and publicity in the situation facing the court."[73]

And in Cream Holdings Ltd v Banerjee, Simon Brown LJ said:

"It is one thing to say … that the media's right to freedom of expression, particularly in the field of political discussion ‘is of a higher order' than ‘the right of an individual to his good reputation'; it is, however, another thing to rank it higher than competing basic rights."[74]

3.37 The English courts have also endorsed the approach recommended by the Council of Europe resolution on the right to privacy. In A v B plc, the English Court of Appeal considered that the resolution provided "useful guidance" on the difficult issue of finding the right balance.[75] This approach was subsequently followed by the English courts.[76] However, although the right to freedom of expression is not in every case the ace of trumps, "it is a powerful card to which the courts of this country must always pay appropriate respect."[77] Any impediment to freedom of expression must be on cogent grounds recognised by law.[78]

3.38 In the 1986 case of Winer v UK,[79] the European Commission of Human Rights declared inadmissible a complaint that English law lacked adequate remedies apart from defamation against invasion of privacy. However, the Commission in that case did not decide that there is no positive obligation on the part of a State Party to protect individuals from unwanted publicity in a case where the law of defamation cannot provide a remedy for invasion of privacy. Such a situation would arise when the published facts are true, making it impossible for the aggrieved individual to bring an action for defamation. Nor did the Commission address the situation where the invasion takes the form of an intrusion (eg by surveillance or interception of communications), in which case a restriction on freedom of expression would not be directly involved.[80]

3.39 In Markt Intern v Germany,[81] a case decided in 1987, the European Commission agreed that, in general, the restriction of true statements requires the application of a stricter test of necessity than the restriction of false or misleading allegations. However, it also recognised that the truth of information cannot be the only criterion for being allowed to publish it. True statements can interfere with legitimate interests which deserve a degree of protection equal to that given to freedom of expression. The European Court affirmed this view in this case, holding that:

"even the publication of items which are true and describe real events may under certain circumstances be prohibited: the obligation to respect the privacy of others or the duty to respect the confidentiality of certain commercial information are examples." [82]

3.40 In 1998, the European Court went so far as ruling that Article 10 of the Convention "does not … guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern".[83] It pointed out that:

"By reason of the ‘duties and responsibilities' inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism."[84]

The requirement that the exercise of freedom of expression carries with it "duties and responsibilities" also applies to the press. People exercising freedom of expression, including journalists, undertake "duties and responsibilities" the scope of which depends on their situation and the technical means they use.[85] The "duties and responsibilities" are liable to assume significance when what is at issue is an attack on the reputation of private individuals and an undermining of the "rights of others".[86]

3.41 Most recently, the applicant in Peck v UK[87]complained about the disclosure to the media of closed circuit television footage recorded in a public street, which resulted in his image being published and broadcast widely. The applicant also argued that there was no effective domestic remedy in relation to the violation of his right to privacy under Article 8. The European Court found in favour of the applicant, noting that breach of confidence did not provide him with an actionable remedy on the facts of his case. The Court did not accept as relevant the UK Government's argument that any acknowledgement of the need to have a remedy would undermine the important conflicting rights of the press guaranteed by Article 10 of the Convention.[88]

3.42 Since the provisions of the European Convention on Human Rights are similar to those of the ICCPR, we find the decisions of the European Court and Commission of Human Rights more relevant to Hong Kong than the decisions of the US courts in understanding how press freedom should be reconciled with privacy under the ICCPR and the Basic Law.[89] Bearing in mind that European Court judges are elected by the Parliamentary Assembly of the Council of Europe and the Assembly's resolutions have an impact on the development of the jurisprudence under the European Convention on Human Rights, we study the resolutions of the Parliamentary Assembly that touch on media freedom and the right to privacy in the remaining part of this chapter.

Council of Europe

3.43 The Parliamentary Assembly of the Council of Europe stresses that the media are vital for the creation and the development of a democratic culture in any country. The media provide people with information which influences the process of shaping opinions and of making political choices. The media must therefore be free, pluralistic and independent, and at the same time socially accountable. These are also the conditions for establishing widespread credibility. On the other hand, the Assembly notes that the media can be used as an instrument for settling scores, both political and personal. The increasing commercialisation and competition in the media pushes even serious media towards "standardisation" and sensationalism, preference for "infotainment" and an excessive emphasis on crime and violence.[90] The Assembly expresses the view that the journalist's profession comprises rights and obligations, freedoms and responsibilities. News organisations must treat information not as a commodity but as a fundamental right of the citizen. To that end, the media should exploit neither the quality nor the substance of the news or opinions for purposes of boosting readership or audience figures in order to increase advertising revenue.[91]

3.44 Noting that the exercise of the right to freedom of expression may conflict with the right to privacy, the Parliamentary Assembly has resolved that the exercise of the former right must not be allowed to destroy the existence of the latter.[92] The following are some of the principles laid down in the resolution on the Right to Privacy passed by the Assembly in 1998,[93] which have been endorsed by the English Court of Appeal in a judgment delivered by Lord Woolf CJ in March 2002,[94] and subsequently followed by the English High Court in at least two cases:[95]

"6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people's private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy. …

8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people's privacy, claiming that their readers are entitled to know everything about public figures.

9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one's private life and the right to freedom of expression.

11. The Assembly reaffirms the importance of every person's right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.

12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media."

3.45 In relation to personal information published in any medium, the Committee of Ministers of the Council of Europe has resolved that the individual concerned should have an effective possibility for the correction of incorrect facts relating to him which he has a justified interest in having corrected, such corrections being given, as far as possible, the same prominence as the original publication. Besides, the individual concerned should have an effective remedy against the publication of facts and opinions which constitute an interference with his privacy, except where this is justified by an overriding legitimate public interest, where the individual has expressly or implicitly consented to publication or where publication is in the circumstances a generally accepted practice and not inconsistent with law.[96]

3.46 In the resolution on the Right to Privacy, the Parliamentary Assembly calls upon the Governments of the member States to pass legislation guaranteeing the right to privacy. The following are some of the guidelines laid down by the Assembly for this purpose:[97]

"i. the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;

ii. editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;

iii. when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned;

iv. economic penalties should be envisaged for publishing groups which systematically invade people's privacy;

v. following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited;

vi. a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used 'visual or auditory enhancement devices' to capture recordings that they otherwise could not have captured without trespassing; …

viii. the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. …"

3.47 The Parliamentary Assembly has also laid down the ethical principles for journalism which, it believes, should be applied by the profession throughout Europe.[98] The following are those that are related to privacy:

"23. The right of individuals to privacy must be respected. Persons holding office in public life are entitled to protection for their privacy except in those cases where their private life may have an effect on their public life. The fact that a person holds a public post does not deprive him of the right to respect for his privacy. …

25. In the journalist's profession the end does not justify the means; therefore information must be obtained by legal and ethical means.

26. At the request of the persons concerned, the news media must correct, automatically and speedily, and with all relevant information provided, any news item or opinion conveyed by them which is false or erroneous. National legislation should provide for appropriate sanctions and, where applicable, compensation. …

37. In order to supervise the implementation of these principles, self-regulatory bodies or mechanisms must be set up comprising publishers, journalists, media users' associations, experts from the academic world and judges; they will be responsible for issuing resolutions on respect for ethical precepts in journalism, with prior commitment on the part of the media to publish the relevant resolutions. This will help the citizen, who has the right to information, to pass either positive or negative judgment on the journalist's work and credibility."

3.48 The Council of Europe resolutions have influenced the development of the jurisprudence under Articles 8 and 10 of the European Convention. Irrespective of whether press freedom and privacy are of equal status under the Basic Law, the views of the Council of Europe serve as useful guidance when the two rights are balanced against each other. We examine in the next chapter whether media intrusion is a serious public concern in Hong Kong before we consider whether any measures should be introduced to protect individuals from unwarranted media intrusion.