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

4.1 The Sub-committee concluded in the Consultation Paper that unwarranted media intrusion represented a serious problem in Hong Kong. Since only a pressing social need would justify a curtailment of press freedom, we consider here whether the problem we identified in the Consultation Paper remains as serious.[99] We also examine in this chapter the privacy interests of plaintiffs complaining of sexual harassment, plaintiffs in personal injury actions, individuals in public places, relatives of deceased persons, victims of crime, and patients in hospitals. Whether accuracy of personal information is a privacy concern is discussed in Chapter 15.

Public opinion polls

4.2 A number of opinion polls have been conducted on this issue since the publication of the Consultation Paper.[100] Most of them appear to conclude that media intrusion is serious in Hong Kong:

(a) Sixty per cent of respondents in a survey commissioned by Apple Daily and conducted by the HK Institute of Asia-Pacific Studies in August 1999 said that abuse of press freedom and infringement of privacy were serious. Only 14% replied that they were not.

(b) Eighty five per cent of respondents in a survey conducted by The Society for Truth and Light in October 1999 considered that privacy intrusion by newspapers was serious.

(c) Almost 60% of respondents in a survey conducted by the Democratic Party in October 1999 said that the extent of privacy intrusion by newspapers had reached a serious level.

(d) The findings of surveys conducted by the HK Policy Research Institute in September, October and November 1999 show respectively that 42%, 49% and 52% of respondents agreed that media intrusion was serious. Those who disagreed in these three surveys amounted to less than 10%.

(e) The survey conducted by the Cooperation Scheme of School and Social Work in November 1999 found that 19% of respondents were unhappy about media intrusion on privacy.

(f) The latest survey was that commissioned by the HK Press Council and conducted by the Institute of Asia-Pacific Studies in January 2002. It found that 58% of the respondents considered that privacy intrusion by newspapers was serious. Only 11% replied that it was not.

4.3 We may add that 44% of the respondents in a survey targeted at media professionals and commissioned by the four journalists' associations in October 1999 agreed that "not paying enough respect to individual privacy" was one of the problems of the industry.

The case of HKSAR v Lau Kong-kwun

4.4 In HKSAR v Lau Kong-kwun,[101] the first defendant (D1) was a city crime reporter of Apple Daily. He pleaded guilty to two charges of conspiracy to offer an advantage to a public servant. The first charge related to bribes of $4,000 per month paid between mid-1997 and November 1999 to the third defendant (D3), who was a Police Communications Officer. The second charge related to bribes of between $6,000 and $8,000 a month made between December 1997 and November 1999 to the second defendant (D2), who was a Senior Police Communications Officer. D1 admitted that he had asked for crime information and particulars of informants or victims of crimes. D2 admitted that he had provided reports and other information, while D3 admitted that he had provided details of police cases, the date, time and location of crimes, and background information on the victims, arrested persons and wanted persons, including their personal particulars, phone numbers, addresses and occupations. H H Judge Day said:

"Victims are entitled to privacy, and should have their complaints treated privately, and on occasions sympathetically. Clearly, not all the information sold by the 2nd and 3rd defendant to the 1st would have resulted in an invasion of privacy or embarrassment to witnesses and victims, but the potential is obvious, and indeed the 2nd defendant admits [that] in November 1999, he gave to the 1st defendant information which enabled him to photograph a rape victim. … Here, we have a lady who has already suffered the trauma and indignity of being raped now being confronted by a press photographer. What would she think, I wonder, if she realised that a member of the police force had caused her photograph to be published in the Apple Daily? What of the family of the child who has been assaulted or who has gone missing? Such crimes need understanding and careful investigation, not necessarily publicity. …

Counsel for the 1st defendant has been able to show me 12 newspaper articles from three newspapers, the Apple Daily, the Oriental Daily News and The Sun, all of which apparently are highlighted by the ICAC in the depositions, and cover 12 examples of how the Apple Daily supposedly stole a march on their competitors by these offences. It appears that the two competitor newspapers ran the same sort of stories at the same time with broadly similar information in them. … There is no allegation that any police investigation has been in fact compromised by the activities of these three defendants. That is fortunate, but are we to expect the Apple Daily to behave responsibly in future in the fiercely competitive business of newspaper selling? The standards achieved by these newspapers is abundantly clear from the examples I have been shown. Will editors who publish photographs of dead babies shirk from printing the address of a suspect when it suits them? When I look at the articles from these newspapers, the phrase ‘responsible journalism' is not one that springs to mind. …

I have no way of knowing the extent to which the Apple Daily Newspaper was involved in these crimes. The 2nd defendant has said that he was told by D1 that his chief editor knew that the paper was paying for confidential information. The 1st defendant tells the court that he claimed the money he paid to the 2nd and the 3rd from his immediate superior, an editor of the city crime unit, as entertainment expenses. Whether this is the same editor or not, I do not know, and in any event, these people are not here to answer these allegations. The 1st defendant has corrupted the 2nd and 3rd defendants. One would hope that no responsible newspaper would be a part of such scandalous behaviour."

The case of HKSAR v Wong Chung Ki

4.5 In HKSAR v Wong Chung Ki,[102] an editor and a photographer of Eastweek magazine gained entry into the flat of a Madam Ng, an assistant to a district councillor, by falsely pretending to be officers of the Housing Department. Two days later, Eastweek carried a story concerning Madam Ng's relationship with the district councillor, accompanied by a photograph of Madam Ng's flat. Both the editor and photographer were later convicted of falsely pretending to be a public officer. At the trial, the editor admitted that there was no truth in the story. In sentencing the editor, the magistrate said that he had "intruded into the home of another person without authority and by impersonating a public officer in pursuit of a speculative, lurid and, in the end, false story." Judge Toh also pointed out on appeal that the editor had abused his position as a member of the press. She said:

"Members of the press hold an important position in a free society because they are the guardians of truth and, like the Hippocratic oath for doctors, journalists hold to the belief that the truth must be known. It is this unwavering pursuit of the truth that had over the years caused members of the public to develop a deep respect and trust in the words that appeared in our newspapers and magazines. Therefore it is a serious matter when a member of the press in pursuit of a false story, gains entry, under false pretence, into the home of his victim." [103]

Extent of the problem

4.6 In order to illustrate the scope and magnitude of the problem, the Consultation Paper cited a number of cases taken at random from the best-selling Chinese-language newspapers. There were, however, submissions arguing that the problem was not serious enough to warrant the establishment of a statutory body to regulate press intrusion. The HKJA, for example, argued that the Sub-committee had failed to demonstrate that the situation was so serious as to merit immediate legislation.

4.7 We are not aware of any studies carried out on the prevalence of media intrusion in Hong Kong. In order to determine whether unwarranted media intrusion is still a problem that calls for immediate attention, we have studied on a random basis the three best-selling newspapers in Hong Kong, namely, Oriental Daily News, Apple Daily and The Sun, during 2000 and 2001. Cases that are found to have privacy implications are collected in Annex 2. The number of readers per day of each of these three newspapers from July 2000 to June 2001 is estimated to be 2,096,000, 1,521,000 and 614,000 respectively, accounting for over 70% of the total readership in 2000/2001.[104] The limited resources available at hand do not allow us to study all newspapers in Hong Kong. We selected these three newspapers for study because their circulation was the highest of all local newspapers and they have refused to participate in the self-regulatory scheme run by the HK Press Council.[105] Nonetheless, we have included at the end of the annex a number of cases from other newspapers to provide a more complete picture. A number of prominent cases in 2002 have also been included to illustrate that media intrusion is still a prevailing public concern.

4.8 About 300 cases are collected in Annex 2. Almost all of them were taken from newspapers published after the consultation period was over. Given that the Consultation Paper was published in August 1999 and that considerable public dissatisfaction at the performance of the press was expressed during the consultation period, the newspaper industry has had sufficient time to reflect on their practices and exercise self-restraint. It will be seen that most of the individuals whose privacy was invaded were not public figures prior to the events leading to the coverage. Many of them were vulnerable persons who were not in a position to protect their legitimate interests vis-à-vis the media.

4.9 The collected cases serve as the best evidence available to us, second only to the first-hand experience of the individuals involved. However, we do not have sufficient information to enable us to determine that each and every case constitutes an invasion of privacy that was unwarranted in the circumstances. Nonetheless, on the face of the published articles, we are satisfied that all the cases disclose at least a prima facie ground of complaint which would have justified an investigation had a press complaints body already been put in place. The cases are therefore presented as prima facie examples of unwarranted media intrusion included for the purpose of giving some indication as to the magnitude and seriousness of the problem in Hong Kong.

4.10 The cases and materials in Annex 2 are classified into the following categories:

(F) surviving relatives and pictures showing the body or image of a deceased person (F1 – F15);

This classification is for convenience only. The cases may be objectionable on more than one privacy ground.

4.11 It is worth keeping the following points in mind when assessing the prevalence of unwarranted media intrusion in Hong Kong:

(a) The cases in Annex 2 represent only a portion of the cases raising privacy concerns in the three best-selling newspapers during the survey period.

(b) Newspapers other than the three best-selling newspapers were not the main focus of our survey.

(d) Intrusive materials (whether in the form of images or words) may be republished by the same newspaper on more than one occasion.

(e) Intrusive materials may also be published in the online version of the newspaper and archived in its website as a permanent record.

(f) The same intrusive materials may appear in more than one newspaper on the day of publication, or it may be repeated later in other publications.

(g) Privacy intrusion is not unwarranted if the newspaper has obtained the consent of the individual concerned. Hence, Annex 2 does not include cases in which the report led us to believe that the individual appeared to have no objection to the disclosure of private facts. That belief may, however, be wrong, as the individual may not have been fit to give consent; or the consent was not wide enough to cover the disclosure in question; or it was obtained by misrepresentation or fraud; or it was given subject to a duty of confidence.

(h) The use of intrusive means to gather personal information is often conducted behind the scenes and would not come to light unless a newspaper discloses the means by which a story was covered.[106] Examples of the use of intrusive means to gather news are therefore under-represented in the Annex.[107]

(i) Cases involving fabrications or misstatements of facts about an individual which have privacy implications are not included in the Annex.[108] These cases come to light only if the individual concerned challenges the veracity of the published information and his complaint is made public in the press. It is also difficult to identify a prima facie case in the absence of a thorough investigation.

(j) A case may involve more than one privacy concern. For example, the coverage may have involved following, intrusion into private property, unauthorised taking of photographs, disclosure of personal particulars, disclosure of family background, and publication of photographs taken without consent.

(k) A case may involve more than one individual. For example, the report may disclose, without consent, images or private facts about a mentally ill patient and his family members.

4.12 We consider that there is a pressing social need to protect the public from unwarranted media intrusion for the following reasons:

(a) Article 17 of the ICCPR expressly provides that everyone has the right to the protection of the law against arbitrary or unlawful interference with his privacy, family, home or correspondence. Article 19 of the Covenant also imposes an obligation on the media to be accurate and truthful in its coverage.

(b) The majority of respondents in most of the public opinion polls conducted after the publication of the Consultation Paper agreed that media or press intrusion (which covers inaccuracy in reporting) was serious in Hong Kong.

(c) A significant percentage of the media professionals who responded to the survey commissioned by the four major journalists' associations considered that "untrue or exaggerated reports" (59%), "not paying enough respect to individual privacy" (44%), and "using unfair means to obtain news materials or photographs" (30%) are major problems.

(d) The examples in Annex 2 suggest that press intrusion is common in Hong Kong. The severity of the problem should not be measured purely by the number of cases, however: even if the number of cases were markedly reduced, each invasion of privacy has the potential to cause significant distress to the victim concerned. Each victim is entitled to an effective remedy, whether or not unwarranted media intrusion is prevalent in Hong Kong

(e) All members of the Newspaper Society and the majority of the respondents to the Consultation Paper perceived a need to establish an independent non-governmental press council to deal with complaints from the public.

4.13 The Sub-committee discussed some of the privacy concerns of the victims of media intrusion in Chapter 2 of the Consultation Paper. We supplement that discussion by focusing on the following issues in the remaining part of this chapter:

Intrusion upon solitude or seclusion versus unwanted publicity

4.14 Complaints about the media infringing an individual's right to privacy fall mainly into two categories: (a) the use of intrusive means (eg trespass, surreptitious recording, interception of private communications, constant monitoring and misrepresentation) to obtain personal information for publication or broadcasting; and (b) unwanted publicity, however obtained, concerning private information relating to an individual, whether the publicised information is accurate or not. Where a particular case involves the publication of a picture in a newspaper, the objection might relate to the taking or obtaining of the picture by a journalist, or the publication of the picture in the newspaper, or both. In some cases, it is the taking of a picture that is objectionable; in others, it is the publication in the press. The taking of a picture itself may be intrusive even though the individual concerned is not identifiable in the picture eventually published in the newspaper. Obvious examples are the unauthorised taking of pictures inside a hospital ward or mourning hall, or when the court has already made an order prohibiting the media from disclosing the identity of a witness in a criminal trial. It should be noted that unwarranted publicity given to private life may, in exceptional circumstances, constitute a violation of the private life of the person to whom the facts relate, even though the identity of that person is not ascertainable from the report. For example, the publication of a picture showing a paedophile engaging in unlawful sexual conduct with a minor inside a hotel room may infringe the minor's privacy even though the face of the minor is concealed in the picture and his identity is not ascertainable from the report.[109]

4.15 Each case should be considered as a whole. The taking of a photograph of someone walking in a public place is innocuous in itself. However, the privacy of that individual is at stake if the photograph is used to identify or connect him to a news story in which details of his private life are disclosed. This is the case even though his name is not revealed in the story. The mere fact that a story is of public concern does not necessarily entitle a newspaper to identify the individual concerned. Whether a story is of public concern and whether an individual's identity should be disclosed are separate issues that should not be conflated.

4.16 Consent of individuals concerned – The fact that an individual is willing to be interviewed by a journalist does not necessarily mean that the individual has also consented to the journalist taking pictures of his likeness or property (eg private photographs put up on the walls or documents laid on the table), nor does it necessarily mean that the individual has consented to the newspaper publishing the individual's personal particulars (including his name, age and address) and the pictures taken by the journalist without the individual's consent. There are also cases where the consent of the individual concerned is not real or sufficient, as would be the case when the journalist does not disclose his real identity, or the individual is a minor, or is mentally handicapped, suffering from dementia, or affected by drugs. Any consent given by a minor or mentally retarded person to an interview, photo-taking or publication would not suffice if the consent of his guardian is lacking. The consent given by an individual may also be for a limited purpose. Thus, consent for a press photographer to take pictures of the injuries suffered by an individual does not normally entitle the photographer to include the individual's likeness in the picture. Consent on one occasion for one purpose does not extend to subsequent occasions or for other purposes.

Plaintiffs suing for sexual harassment

4.17 We have included in Annex 2 a number of cases in which the identities of the plaintiffs in actions for sexual harassment were disclosed in the news reports.[110] Although there is no law prohibiting the media from publicising the identities of victims of sexual harassment, victims of sexual harassment who are in a similar position to victims of sexual assault should not be subjected to a "second victimisation" by the media publicising their names with or without a picture taken against their will.[111] Publicising the identities of these plaintiffs would discourage victims in similar circumstances from seeking redress in civil courts, thus defeating the purposes of the Sex Discrimination Ordinance.[112]

Plaintiffs in personal injury actions

4.18 As regards plaintiffs in personal injury actions, they have no choice but to reveal the effect of the injuries on them at the trial. These facts might relate to the plaintiff's sex life, physical condition, mental health, financial position, and relationship with his or her intimate partner. Sensitive data might be revealed as a result, such as the fact that the plaintiff has to undergo an operation on an intimate part of his or her body, is incontinent, cannot have sex, is impotent, infertile, mentally retarded, mentally incapacitated, or is having psychiatric problems in consequent of the defendant's wrongful act. The plaintiffs in personal injury actions are drawn into a public forum against their will. They bring a legal action only to attempt to obtain the only redress made available to them by the law. Whilst the physical and mental condition of the plaintiff is relevant to the amount of damages awarded by the court, disclosing his identity in the press does not advance the public's interest in understanding and supervising the conduct of judicial proceedings or public affairs in general, but would cause injury to the feelings of the already unfortunate plaintiff.

Privacy interests of individuals in certain public places [113]

4.19 The HK Journalists Association referred to a few cases cited in the Consultation Paper and suggested that information in the public domain and pictures taken in public places should not be suppressed on grounds of privacy. The Association further suggested that the conduct of journalists at funerals was not a privacy-related matter.[114]

4.20 The issues as to whether there can be an invasion of privacy in a place accessible or visible to the public, and whether there can be an invasion of privacy by publishing information in the public domain, are discussed in Chapter 7 of our report on Civil Liability for Invasion of Privacy. Suffice it to say that the aphorism that "what is public is not private and what is private is not public" is an oversimplification of the issues. "Public" and "private" are not mutually exclusive all-or-nothing categories but are matters of degree, existing on a continuum.[115] The following observations made by the European Court of Human Rights are also pertinent:

"[Article 8 of the European Convention on Human Rights] also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life'."[116]

"A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (eg a security guard viewing through close circuit television) is of a similar character. Private life considerations may arise however once any systematic or permanent record comes into existence of such material from the public domain. … In the case of photographs, the Commission previously had regard, for the purpose of delimiting the scope of protection afforded by Article 8 against arbitrary interference by public authorities, to whether the taking of the photographs amounted to an intrusion into the individual's privacy, whether the photographs related to private matters or public incidents and whether the material obtained was envisaged for a limited use or was likely to be made available to the general public".[117]

4.21 In order to illustrate that privacy protection may extend to certain public places, we set out below some categories of persons who may reasonably expect that their privacy will be respected even though they appear in a place accessible or visible to members of the public:

(a) cases where a picture showing the presence of an individual at a particular location in a public place would reveal a private fact about him or her because of the proximity of that location to the premises of an institution – examples are:

(vi) persons reading the recruitment notices put up on the windows of a job centre facing the street;

(b) cases where an individual is in a place accessible or visible to the public but nevertheless has a reasonable expectation of privacy because of the functions of the place in question – examples are:

(viii) persons reading the recruitment notices put up inside a Labour Department job centre;

(c) cases where an individual is in a public place but has a reasonable expectation of privacy because he or she is then in a state where intimate facts about him or her are exposed as a result of an event outside his or her control – examples are individuals whose private parts or undergarments are exposed in public in consequence of a traffic accident, fire or suicide attempt, or while receiving first aid in a public place.

4.22 As regards the suggestion that details of an individual's private life should not be protected once disclosed in the public domain, we would like to point out that if we follow this logic to the extreme, then a nude photograph or intimate facts (such as the fact that a named person is mentally ill or has cancer) which have been wrongfully disclosed in the public domain could be further publicised even though this would cause significant harm to the individual concerned. This proposition is, in our view, untenable. In contrast to confidential information, details of an individual's private life do not in general lose their private character and, hence, should not be deprived of protection merely because they have been disclosed in the public domain.

Pictures showing the body or image of a deceased person

4.23 A few newspapers do not refrain from publishing pictures of the body or image of a deceased person taken at the mortuary or at the death site. There was a public outcry when Next Magazine published a picture of the corpse of a former starlet on its front cover, but there are many other instances in which pictures of the remains of ordinary citizens killed in a suicide or car crash have been published in newspapers.[118] In a poll conducted by Caritas, 89% of those interviewed considered that it was improper for newspapers to publish a picture of the uncovered body of a deceased person. Ninety-two per cent also thought that it was improper to publish an enlarged picture of a deceased person whose underwear was exposed.[119] The publication of these pictures was considered disrespectful to the deceased and an affront to the deceased's dignity. However, the HK Journalists Association considers that the pictures involve issues of culture and custom that are outside our privacy reference. We have therefore examined the jurisprudence of mainland China, Canada, France and the US on the privacy interests of deceased persons and surviving relatives. Annex 3 summarises the findings of that survey.

4.24 Most people contend that when a person dies, any valid privacy interests he has disappear. This seems to be the position in those jurisdictions which recognise a common law right of privacy. The courts held that the right of privacy is personal and can only be asserted by the individual whose privacy has been invaded. The right is limited to the living and may not be asserted by others after the deceased's death. The relatives of the deceased who are disturbed or outraged by reports about his death cannot assert the right unless their own privacy has been invaded.

4.25 However, some consider that the privacy interests of a deceased person survive his death but diminish over time. According to this view, the deceased's privacy should be protected for a limited period of time, such as one, five, ten or twenty years. The freedom of information and protection of privacy legislation in Canada adopts such a view and provides that personal information should not be released by an archival body unless the person concerned has passed away for more than twenty years.

4.26 Nonetheless, there is general agreement that gruesome pictures of a deceased person have privacy implications at least for his immediate relatives. Many of the court cases summarised in Annex 3 held that personal privacy extends to the memory of the deceased held by those tied closely to the deceased by blood or love. Pictures of a body which, if disclosed, would disgrace or injure the memory of the deceased should be withheld unless there are countervailing interests justifying their disclosure.

4.27 Inevitably, most families suffer profound grief when a loved-one dies. Deaths considered newsworthy by the press are usually tragic and sudden and the publication of graphic and explicit pictures of the deceased is likely to magnify the surviving relatives' grief and suffering. Such pictures, when published in mass circulation newspapers, are likely to have a significant impact, particularly on the deceased's children.

4.28 Bereavement, the process through which a person comes to terms with the loss of his relative or friend, is something that can be intruded upon. Having regard to the jurisprudence summarised in Annex 3, we consider that surviving relatives have at least a privacy interest in ensuring that pictures of a deceased person's body or image are not published, even though it is open to debate whether that interest falls within the ambit of the right to privacy under Article 17 of the ICCPR. Pictures of the deceased's body may degrade the memory of the deceased and affect the privacy of persons who are related to the deceased by blood or love. It is difficult to justify the publication of these pictures unless a vital public interest is at stake.

Victims of crime

4.29 Victims of crime and tragedy are particularly vulnerable to media intrusion.[120] The Handbook on Justice for Victims,[121] which is prepared by experts from more than 40 countries and developed in cooperation with the Centre for International Crime Prevention of the UN Office for Drug Control and Crime Prevention, states that the dignity and healing of victims depends on the respect and assistance extended to them by professionals and others who come into contact with them, including the media. As far as media professionals are concerned, they should be encouraged to adopt a code of ethics specific to their coverage of crime and victimisation. The Handbook further states that when victim advocates consider proposing a code of ethics to media professionals, the following issues should be "seriously considered":[122]

· Present details about a crime in a fair, objective and balanced manner, avoiding over-dramatized news;

· Recognize the importance of publishing or broadcasting information that can contribute to public safety while, at the same time, balancing this need against the victim's need for privacy;

· Respect the privacy of individuals who choose to refrain from dealing with the media or who choose to address the media through a spokesperson of their choice;

· Provide a balanced perspective regarding a criminal act that reflects the concerns of the victim and the offender;

· Never report rumours or innuendoes about the victim, the offender or the crime unless such information has been verified by reliable sources;

· In crimes other than homicide, identify the victim by age and area where the crime occurred, omitting names, street addresses and block numbers;

· Refrain from using information gained from private conversations with victims or their relatives who are in shock or distress; …

· Never publish the identity of a sexual assault victim without his or her prior consent, regardless of whether the case is in the criminal or civil courts;

· Never identify alleged or convicted incest offenders when such actions could lead to the identification of the victim;

· In cases of kidnapping where it is determined that the victim has been sexually assaulted, stop identifying the victim by name once a sexual assault has been alleged;

· Never, without the victim's prior consent, identify the victim of fraud or other crime that tends to humiliate or degrade the victim;

· Refrain from photographing or broadcasting images that portray personal grief or shock resulting from a criminal act;

· Never publish photographs or broadcast images that could place the subject in danger;

· Refrain from showing photographs or broadcasting images of deceased victims, body bags or seriously wounded victims;

· Never publish photographs or broadcast images of funerals without the prior consent of the surviving family members; …

· Approach the coverage of all stories related to crime and victimization in a manner that is not lurid, sensational or intrusive to the victim or his or her family."

4.30 We note that the Victims of Crime Charter promulgated by the Department of Justice contains provisions on the victim's right to privacy.[123] However, these provisions are general in nature and do not provide any guidance on the treatment of victims by the news media.

Patients in hospitals

4.31 One type of media intrusion which is clearly indefensible is the unauthorised taking of pictures of hospital patients and their publication in newspapers.[124] The publication of a picture of a patient lying in a hospital bed is objectionable not only on the ground that the newspaper has given unwanted publicity to his private life, but also on the ground that the press photographer has intruded upon the patient's solitude or seclusion in circumstances where the patient was not in a fit condition to give consent or raise objection. The taking of a picture in these circumstances is objectionable in itself whether or not the patient is identifiable in the picture published in the newspaper.

4.32 As illustrated by the cases collected in Annex 2, there are different levels of intrusion in the coverage of hospital patients. The intrusion is particularly objectionable when:

(a) the journalist gained access to the ward by misrepresentation or subterfuge;

(b) the journalist obtained an interview with the patient by falsely claiming that he was a social worker, a Government official, or a reporter from a reputable newspaper;[125]

(d) the patient is young, old, mentally unsound, unconscious or in a critical condition;

(e) the journalist obtained the information by engaging in a conversation with the patient in circumstances where the latter was not mentally or physically fit to talk (as when the patient suffered brain or neck injury or was under the influence of drugs);

(f) the journalist removed the blanket on the patient's body or limbs when he or she was unconscious so that the journalist could take pictures of the patient's injuries;

(g) the private parts of the patient were exposed when the journalist was present at the ward; or

(h) the private parts of the patient were included in the pictures, whether or not the private parts have been concealed.

4.33 Media intrusion in hospital is a serious infringement of the right to privacy because:

(a) hospital patients are vulnerable and are not in a position to protect themselves;

(b) the photography or the mere presence of the journalist in the ward is in itself an intrusion if the permission of the patient and/or the hospital is wanting;

(d) the intrusion or publication may affect the physical and mental health of the patient.

4.34 We find the conduct of the journalists and editors involved in these cases reprehensible. We are also disturbed by the fact that hospital patients on the mainland have also suffered at the hands of the local press. A number of pictures taken in mainland hospitals show that the private parts of seriously injured patients (one of them a child) were exposed when the pictures were taken.

4.35 Media intrusion in hospital can rarely be justified in the public interest, even when the patient is a public figure or suspected of committing a crime, let alone when the patient is a victim of crime or accident. We are, however, not aware of anyone (including the four journalists' associations, the public authorities and the human rights groups) condemning such practices.

4.36 Although bylaw 7(1)(f) of the Hospital Authority Bylaws makes it an offence to take a photograph, video or film of a patient in a public hospital without his consent,[126] we are not aware of any prosecution for this offence. A journalist could enter a ward by disguising himself as a friend or relative of a patient. He could also use a hidden camera to take pictures inside hospital without the staff and patient knowing it. In any event, the Hospital Authority (HA) does not have the power to arrest a press photographer suspected of committing the offence, which is non-arrestable in nature. Nor does the HA have the power to seize the press photographer's camera or compel him to produce his identity card. Furthermore, the newspaper publishing a photograph taken in contravention of that bylaw cannot be compelled to disclose the press photographer's identity. We also note that the HA does not have any internal guidelines or mechanism for dealing with these offences.

4.37 We acknowledge that the primary duty of the HA is to save lives and cure the sick. However, this does not absolve the HA from its duty to provide an environment where the privacy of its patients are protected from undue interference. Indeed, one of the objectives of the Authority stated in the HA Ordinance is to improve the environment in public hospitals to meet the needs of patients.[127] This objective encompasses the duty to protect the privacy of those who are under its care and are not in a position to look after their own interests. The HA is also equipped with the authority to prosecute a person who refused to leave a hospital when directed to do so or has wilfully obstructed, disturbed or annoyed a patient in the lawful use of a hospital or its facilities.[128]

4.38 We appreciate the difficulties faced by the HA in enforcing the Bylaws. We are also aware that the HA does take action to protect the privacy of its patients on occasions, as when the patient concerned is a public figure whose health information is much sought after by the press. However, the fact remains that the relevant Bylaws are apparently not strictly enforced and have not been effective in protecting patients from media intrusion. Understandably, the focus should be on the intruders rather than the hospitals, but the self-regulatory measures initiated by the journalists' associations do not seem to have any impact on such conduct.

4.39 What is required, at the minimum, is a change in the approach of the HA, the police and the news media. The HA should address the privacy concerns of patients and raise the awareness of the general public of their right to protection from media intrusion when being treated in public hospitals.

4.40 Education and better enforcement of the Bylaws are not sufficient in themselves. The Bylaws do not protect sick or injured persons who have not yet been registered by a public hospital as patients.[129] Nor do the Bylaws apply to patients or inmates in private hospitals, sanatoriums and convalescent homes. It is also not an offence to publish a picture taken in consequence of a violation of that bylaw. The need to introduce further measures will be reviewed after we have examined the self-regulatory initiatives and the Personal Data (Privacy) Ordinance in Chapters 7 to 9. Before that, we first explore in Chapter 5 the impact of media intrusion on its victims.

[99] As regards the position before 2000, see Chapter 2 of the Consultation Paper.

[100] See Chapter 2 above.

[101] DCCC 76/2000, date of judgment: 30 May 2000; unreported. See 馬松柏, 香港報壇回憶錄, (HK: Commercial Press, 2001), pp 44-46.

[102] HCMA 653/2003.

[103] Above, para 9.

[104] HK Economic Journal, 17.1.02, citing AC Nielsen RARD Report.

[105] See Chapter 8 below.

[106] This would happen when the intrusive conduct has resulted in an accident or complaint which has become a newsworthy event in itself. These complaints are uncommon. Occasionally, it is the journalist who discloses that unethical means have been used to collect personal information: see, for example, (a) the editorial in HK Daily News, 17.1.01 (stating that some press photographers had forcibly removed the umbrellas used by the news subjects to hide their faces); (b) HK Economic Journal, 20.6.98, p 17 (a former journalist reported to have revealed that some journalists had obtained access to victims of traffic accidents in hospitals by disguising themselves as their relatives); (c) Next Magazine, No 430, Book B, p 14 (reporting that an artiste who had been admitted into hospital for acute hepatitis A was forced to meet the journalists after they had kept on pushing the door of his ward vigorously for a while); (d) Ming Pao Daily News, 3.9.1997, D1 (a press photographer reported to have admitted opening a coffin and taking pictures of the body without the consent of the surviving relatives).

[107] Nevertheless, we may sometimes infer from the information revealed in a report that the information could only have been collected in breach of privacy. An obvious example is the publication of a picture of a patient lying unconscious in a hospital bed.

[108] The following examples of inaccuracies are given to illustrate the difficulties faced by the victims concerned and the types of cases involved: (A) Next Magazine published an article on 2.9.94 alleging that the lecturers at the HK Polytechnic University were of a low standard, incompetent and had falsified their qualifications. Four lecturers were named in that article. It took more than five years to settle the dispute. The magazine eventually agreed to publish an apology accepting that the allegations were "without foundation" and be responsible for the university's legal costs. Next Magazine, No 512, 6.1.00. (B) An article carried in Sudden Weekly in June 1996 fabricated that a named businessman had cancer. (C) Apple Daily wrongly reported on 7.10.98 that a named solicitor was suspected of cheating clients' money: Chu v Apple Daily [2001] 1375 HKCU 1 (fabricating the fact that the Law Society had reported the matter to the police, the police had visited the plaintiff's home, and the plaintiff's office had been left vacant). The dispute had to be resolved in court and more than three years had elapsed before the court ruled in the plaintiff's favour. (D) After having been shown a report carried in Apple Daily on 5.10.99 mislabelling a man accused of murdering a child as a paedophile, a judge said that the report was "inaccurate", "prejudicial" and "a disgrace of the first order", and that the information was based on "no evidence whatsoever". The paper submitted that the reporter "did not invent" that part of the story that was prejudicial but had used information published in other newspapers. The trial was aborted as a result. SCMP, 7.10.99; HK Standard, 7.10.99; Oriental Daily News, 7.10.99. (E) A large part of what was written about the victim in an article published in Next Magazine on 30.7.00 about friendship was alleged to be "complete fabrication". Kam Sea Hang Osmaan v Privacy Commissioner, Administrative Appeal No 29 of 2001 (holding that the victim had no relief under the PD(P)O). (F) A victim whose genitals had been injured by his mentally ill wife complained that the report by Apple Daily that the tragedy was the result of him having an extra-marital affair was entirely without basis: HKPC complaint dated 18.1.01. (G) A victim of sexual assault accused a number of newspapers of fabricating the details of the crime committed against her: 小惠, "傳媒施暴", in 燭光網絡, vol 3, no 6, Nov 2000, p 3. (H) Apple Daily published an apology one month after a senior government official had complained that a report about her husband's alleged indebtedness and their marriage was incorrect: Apple Daily, 28.7.00, A 6, referring to the report in Apple Daily on 30.6.00. (I) A murder trial was adjourned after the defence counsel had complained that a report in The Sun about the case was "sensational, adverse, prejudicial, inaccurate and misleading". The judge said, "A good deal of what appeared in the newspaper is simply untrue. It is a fiction, an extremely dangerous one." South China Morning Post, 24.3.01, referring to an article in The Sun on 22.3.01. (J) A company director complained that Apple Daily had wrongly identified him as the man who had gambled away the prize he had won in a lottery and who had asked his wife to settle his gambling debts for him: Oriental Daily News, 17.11.01, A 12, referring to the front page story in Apple Daily, 22.10.01. (K) Shum Kin-fun complained that Eastweek, No 510, had fabricated the cover story that he had had an extra-marital affair: HK Economic Times, 29.8.02; HCA 3310/2002.

[109] There was a public outcry when Apple Daily published on its front page, three pictures showing a man engaging in sexual conduct with a girl inside a room. Apple Daily, 9.1.03, A 1. One of the three pictures was also published in Next Magazine, No 671, p 30.

[110] Note in particular that the court in Case H2 and H4 refused to make an anonymity order. Cf L v Equal Opportunities Commission [2002] 3 HKLRD 178 in which the Court of Appeal held that the administration of justice in disability discrimination cases is best served by making an anonymity order.

[111] It is an offence to publicise the identity of an alleged victim of sexual assault under ss 156 and 157 of the Crimes Ordinance (Cap 200).

[112] We have recommended in our Civil Liability Report that the District Court in proceedings under s 76 of the Sex Discrimination Ordinance should have the power to make an anonymity order.

[113] See also the paragraphs in Chapter 7 of our Civil Liability for Invasion of Privacy Report (2004) under the heading of "Facts concerning an individual's private life that are available in the public domain".

[114] Some codes of journalistic ethics acknowledge that an individual may have a privacy interest in certain publicly available facts or information. Eg, Guidelines for Good Journalistic Practice adopted by the Union of Journalists in Finland, para 29; Privacy Principles developed by the New Zealand Broadcasting Standards Authority, principle (ii); and Code of Practice ratified by the UK Press Complaints Commission, para 3.

[115] E Paton-Simpson, "Private Circles and Public Squares: Invasion of Privacy by the Publication of ‘Private Facts'" (1998) 61 MLR 318 at 324.

[116] Peck v UK, Application No 44647/98 (date of judgment: 28.1.03), para 57; applied by the UK House of Lords in Campbell v MGN Ltd [2004] UKHL 22, paras 122-123. The European Court held that disclosure by a public authority to the media of the footage recorded by a CCTV camera installed in a high street showing the images of a man who had attempted suicide was a serious interference with his right to respect for his private life.

[117] PG and JH v UK, Application No 44787/98 (date of judgment: 25.9.01), paras 57-58; applied by the UK House of Lords in Campbell v MGN Ltd [2004] UKHL 22, paras 122-123.

[118] See Annex 2, section F.

[119] Caritas Community Centre – Kowloon, 家長對中文報章新聞圖片處理手法意見調查報告 (June 1999), para 7(2).

[120] See also the section on "Facts concerning an individual's private life that are available in the public domain" in Chapter 7 of our Report on Civil Liability for Invasion of Privacy (2004).

[121] Handbook on Justice for Victims – On the Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (New York: UN Centre for International Crime Prevention, UN Office for Drug Control and Crime Prevention, 1999), at <www.uncjin.org/Standards/9857854.pdf>, ch III G. The General Assembly of the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985: General Assembly resolution 40/34, annex. In 1996, the UN Commission on Crime Prevention and Criminal Justice adopted a resolution to develop a manual on the use and application of the Declaration. The Handbook was developed in response to that resolution. See also M E I Brienen & E H Hoegen, Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85)11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure (dissertation advisor: Professor Marc Groenhuijsen, University of Tilburg) (Nijmegen, The Netherlands: Wolf Legal Productions, 2000), chs 1 & 27, at <www.victimology.nl/>.

[122] Above, ch III, section 2.

[123] Paras 2 & 9 of the Charter, at <www.info.gov.hk/justice/new/depart/public15.htm>. ("Members of the law enforcement agencies, prosecutors, court staff, counsel, and other persons dealing with victims of crime shall at all times treat them with courtesy, compassion, sensitivity and respect for their personal dignity and privacy. … All those involved in the criminal justice system, from police officer to judiciary staff, shall respect the victim's right to privacy and confidentiality.")

[124] See Kaye v Robertson [1991] FSR 62 in which the English Court of Appeal held that there was no right of action for breach of a person's privacy at common law.

[125] Depending on the circumstances of the case, a journalist who falsely claims that he is an officer of the Social Welfare Department may be charged with an offence under s 22 of the Summary Offences Ordinance (Cap 228) (falsely pretending to be a public officer); s 73 of the Crimes Ordinance (Cap 200) (using a false instrument with intent); s 75(1) of the Crimes Ordinance, (possessing a false instrument with intent); s 75(2) of the Crimes Ordinance (knowingly possessing a false instrument); or s 35(h) of the Social Workers Registration Ordinance (Cap 505).

[126] Hospital Authority Bylaws (Cap 113), bylaw 7(1)(f). Any person who contravenes this bylaw is liable to a fine of $2,000 and to imprisonment for three months.

[127] Hospital Authority Ordinance (Cap 113), s 4(c)(iii).

[128] Hospital Authority Bylaws (Cap 113), bylaws 8(2) and 9.

[129] See definition of "patient" in bylaw 2.

Hong Kong Law Reform Commission

Chapter 4 - Media intrusion in Hong Kong