Hong Kong Law Reform Commission

Chapter 5 - Impact of media intrusion on victims

5.1 The interests protected by the right to privacy are intangible even though the effects of an infringement may be significant. To take the definition of privacy adopted by the Australian Law Reform Commission as an example, there are at least four categories of privacy interests requiring legal protection, namely: (a) the interest in controlling entry to the "personal place" ("territorial privacy"); (b) the interest in freedom from interference with one's person and "personal space" ("privacy of the person"); (c) the interest of a person in controlling the information held by others about him ("information privacy"); and (d) the interest in freedom from surveillance and from interception of one's communications ("communications and surveillance privacy").[130] An infringement violating one of these interests does not normally have any immediate tangible effect on the body and property of the victim, but its secondary effects on the victim's health and property can be significant and measurable in practice.

5.2 Although media intrusion affects ordinary citizens and public figures alike, our primary concern has been with ordinary citizens who usually have not sought publicity but suddenly become of interest to the media. These people are often thrust into the limelight solely because of the crimes committed against them or their involvement in accidents beyond their control. Media coverage that is insensitive, voyeuristic and uncaring can compound their emotional and psychological suffering. It can cause them additional distress or psychological injury at what is already a time of trauma and shock. Their studies, businesses, careers, family relationships, or physical or mental health can be damaged as a result. It is only fair that they should be protected from such "secondary victimisation".

5.3 A number of respondents expressed concern over the adverse impact that media intrusion could have on victims. The HK Psychological Society advised that its members had come across clients (ie people receiving psychological services) who had suffered significant distress caused by the mass media's intrusion into their private lives. Their distress could appear as symptoms such as disturbed sleep, anxiety, lowered self-esteem, loss of confidence, diminution of trust, and breakdown of social relationships. The impact could be long lasting. In other cases, their clients had been through some critical incidents which attracted media attention and which in turn exacerbated symptoms of stress. Some clients had also complained of media organisations using unethical means to gather information, making judgements before facts were known, and being intrusive while they were in grief. Members of the Society also expressed concern over the publication of gruesome photographs (eg of violent deaths) and detailed descriptions of methods of suicide. The Society stated that this might have a profound psychological impact on the audience.[131]

5.4 Ms Mary M W Lee, a professional psychologist, also advised that a number of clients, employees and members of the public had complained to her of media intrusion on their privacy, often at times when they were suffering from grief and distress, thereby exacerbating their trauma. Her clients had complained that the media had used unethical means to gather information about them, pre-judged events, or distorted the truth.[132] She further noted that there were instances where journalists had taken photographs when the victims were emotionally fragile, helpless and grief-stricken. Ms Lee said these photographs depicted the victims' emotional response to the trauma and aggravated their psychological injury "as if a knife was stabbed into a wound which was still bleeding". In some instances, the photographs showed signs of the victim's helpless and painful struggle against the intrusive media, triggered off by the intrusion itself. Ms Lee explained that the publication of these images might leave a permanent mark in the victims' memories. What lay behind the images of a victim was a complex and painful experience. By purchasing a newspaper containing such coverage, the purchasers became parties to the process by which the victims' psychological trauma was aggravated.

5.5 Ms Lee advised that what traumatised victims needed most was a peaceful and supportive environment so that they could come to terms with what had happened. However, in practice, victims were instead likely to be subjected to media harassment which was often offensive and insulting. That harassment might instil a feeling of helplessness in victims at a time when they were already experiencing an abrupt change in their lives. The stress which media harassment caused to victims might therefore be greater than that caused by the original trauma. Ms Lee noted that as a result of this harassment and coverage, some victims suffered symptoms of critical incident stress such as disturbed sleep, nightmares, anxiety, depression, lowered self-esteem, loss of confidence, diminution of trust, breakdown of relationships, and social withdrawal. The impact of such stress could be detrimental and long-lasting.

5.6 In the case of public figures and their family members, the following declaration by the HK Performing Artistes Guild is consistent with the comments made by the HK Psychological Society and Ms Lee:

"Recently, some newspapers and weeklies surreptitiously photographed and followed artistes and their family members and exposed their private lives. They exaggerated when giving an account of a story; distorted the facts; highlighted incidents out of context; misled the public; and even attempted to force their way into private premises in order to take photographs inside, and interfered with the private lives of artistes and their family members. … As a result, the artistes were constantly on edge, feeling helpless and were in great distress. [Such activities] became a nuisance to their friends and relatives, who were also in fear and under immense psychological pressure."[133]

5.7 With respect to fabrications and misstatements of facts in the press, their impact can be illustrated by the case of a pregnant solicitor who suffered psychiatric and physical illness, in addition to loss of profits, after she had been wrongly named in a newspaper article as the solicitor suspected of absconding with clients' money.[134] The solicitor suffered such severe emotional distress that her daughter had to be sent away to be cared for by others, and the solicitor was recommended for psychiatric treatment. The resulting depression, anxiety and stress materially contributed to the premature birth of her child, which had to be kept in intensive care after she was discharged from hospital.[135]

5.8 The Boys' & Girls' Clubs Association of HK advised that media intrusion affecting the privacy of children would cause unnecessary embarrassment and additional psychological stress to the children and their parents. This would not only adversely affect the children's self-image but would also jeopardise the rehabilitation process of children coming from families affected by misfortune. These children might have difficulty recovering from the trauma and returning to a normal life. Against Child Abuse also provided instances where victims of child abuse and their family members had been laughed at, frightened, disturbed or harassed because of the conduct of journalists or coverage in the press. A number of victims had even recanted or withdrawn their complaints as a result.[136]

5.9 The Association for the Advancement of Feminism has given evidence of the plight of women who wish to pursue their remedies under the Sexual Discrimination Ordinance.[137] The Association commented that publishing a photograph that identifies a victim of sexual assault would adversely affect the victim, particularly if she had started a new job or had developed a new personal relationship. The media should appreciate the harm caused to the victim and should not rub salt into the victim's wounds. Information about the victims should not be provided if it was irrelevant to the case. The Association stated that the media should also avoid publishing photographs of the plaintiffs in sexual harassment cases, or of persons unrelated to the case, unless with their consent.

5.10 In relation to the coverage of sexual offences, some frontline social workers have advised that press reports which are accompanied by pictures of the victims (even where part of their facial features are concealed), or detailed information about the offences, cause extreme anxiety to the victims and make their recovery from the original trauma even more difficult.[138]

5.11 A social worker has also referred to a sexual assault case reported on the front pages of a number of newspapers. These reports disclosed the name of the building in which the offence was committed; the name of the district in which the building was located; the background of the victim's family; the number of her family members; and the characteristics of the school she attended. Although the reports did not disclose the victim's name, her neighbours and relatives were able to identify her by reading the reports. As a result, the victim felt that everyone knew that she was the victim. At one time, she was unwilling to go to the police station to identify the offender lest she would be hounded by the press. She eventually decided to move house to escape from the adverse consequences of becoming a public figure in the eyes of her neighbours. One of her family members was also in distress because of the reports and had to be counselled by a psychologist.[139]

5.12 The social worker further commented that much personal information about the victims of sexual assault could be gathered from the newspaper reports if they were read with care. Since the reports focused on the details of the offences committed against the victims, they caused both the victims and their family members emotional distress. This increased the difficulties faced by social workers in providing counselling services and directly affected the victims' recovery. The social worker added that although not everyone read those newspapers and knew who the victims were, in the eyes of the victims, everyone was able to identify them as the victims concerned. She concluded that the publication of personal information about the victims and inaccurate reports about the events were not merely a matter of media ethics but would aggravate the victims' mental suffering.[140]

5.13 A medical practitioner advised that publishing details of the eccentric behaviour of mentally ill persons was equivalent to publishing the symptoms of patients who were organically ill. While the latter were conscious of their privacy rights and were in a position to object to journalists taking pictures or could refuse to talk about their health conditions, mentally ill patients were unable to understand and judge the significance of their actions and the publication of their private facts. A mentally ill person was not competent to consent to the taking of pictures showing his likeness and the publication of the details of his illness. As there had been an increase in the coverage of mentally ill persons, he hoped that some measures could be introduced to protect the privacy of mentally unstable persons from media intrusion.

5.14 The impact of unwanted publicity on homosexuals is illustrated by a newspaper article that covered the activities inside a private club frequented by homosexuals.[141] Several pictures surreptitiously taken inside the common room, toilet and shower room of the club were published in the newspaper. Although the individuals' eyes were concealed, a columnist wrote that those who knew them would have no difficulty in identifying them. One of the individuals was known to the columnist and was concerned as to how he could explain the matter to his parents. The columnist stated that those in the pictures might lose their jobs or break up with their families as a result of the exposure.[142]

5.15 A survey of public attitudes towards certain groups of people revealed that about 54% of the respondents considered that homosexuals, sex workers and rehabilitated mental patients were discriminated against by society, while 43% considered that new immigrants, and 27% those who received social security assistance, were discriminated against by society.[143] In another survey on out-patients of psychiatric clinics: (a) 45% responded that their job applications were turned down when employers found out that they were mentally ill; (b) 34% were sacked because they were mentally ill; (c) 37% responded that the attitude of their employers, colleagues or classmates changed for the worse when the latter found out that they were mentally ill; and (d) 36% were shunned by their family members and relatives because of their mental illness.[144]

5.16 As regards intrusion upon hospital patients by journalists gaining access to their wards and obtaining information from them by false misrepresentation, a former SCMP reporter said that she had personally witnessed an accident victim in an extreme state of distress after such an intrusion.[145]

5.17 There are few victim support groups in Hong Kong able to advise us of the negative consequences which media intrusion has on victims here. In England, the views of Victim Support UK[146] and Women Against Rape London were expressed in their submissions to the National Heritage Committee of the UK House of Commons in response to that committee's inquiry into media intrusion. Victim Support UK stated:[147]

"1. A basic principle of Victim Support is that victims of crime and their families should be able, as far as possible, to recover and put their experiences behind them. Media reporting of the crime that is inaccurate or intrusive adds to their distress. Victims have not sought publicity and do not see why it should be thrust upon them, adding to the problems caused by the crime itself. …

5. Many victims of crime simply do not wish their names [or photographs] to be published [with the details of the crime]; in one case where this was done, despite specific requests, a woman's recovery from the crime was seriously affected and the family felt compelled to move house. …

7. It can be particularly hurtful when personal details about an individual, of little or no relevance to the case are published. Even when the name is not given, because of the prohibition against identifying rape victims, victims can still be identifiable from details in the story or a photograph of their home.

8. We believe that photographs of victims should not be published without their consent, particularly those showing facial disfigurement.

9. We are concerned by the development of magazines and television series whose stock-in-trade is re-telling sensational cases. These are the cases likely to have caused the greatest pain to the families of the victims. Publishing the stories again, sometimes with fresh details of which the families were not aware, disturbs not only those who are directly affected, but also all the other bereaved families who are left wondering when they will be subjected to the same treatment. …"

5.18 Victim Support UK added the following points in another policy paper:[148]

(a) Victims of crime are of intrinsic interest to the media, and often at a time when they are least able to cope with it. When people are suffering from shock or trauma or grief, either soon after the incident or at a significant event such as the trial, they are often unable to think clearly and may act uncharacteristically. They say and do things which they sometimes later regret. They can find it extremely difficult to cope with assertive and persistent journalists.

(b) To publish the name and address of a victim may be to put them at risk of further victimisation. In several cases drawn to the attention of Victim Support, victims have been subject to intimidation from the friends of the offender following newspaper reports which have printed their names and addresses.

(c) In some cases newspapers print details which are not relevant to the crime, but which make a good story. It is particularly true when the victim is dead, and cannot defend himself.

(d) Filming at funerals and memorial services is often distressing to families of murder and disaster victims, who view it as intrusion into their personal grief.

(e) Victim Support has received accounts from victims of journalists repeatedly shouting through the letter box, climbing into the back garden or refusing to leave the pavement outside of the house. Neighbours, friends and colleagues are also besieged.

(f) Occasionally victims choose to respond to this pressure by agreeing to accept money for an exclusive interview with one paper in the hope that the others will then leave them alone. These deals might be a direct result of media pressure.

(g) During Crown Court trials victims, witnesses and bereaved relatives are sometimes harassed by the media while travelling to and from court and within the court building.

(h) There is a particular problem in relation to pleas in mitigation made in court by or on behalf of defendants after conviction. The victim has no opportunity to challenge these statements and they are repeated as fact in the media.

(i) There is a lot of pressure on the media to produce strong and dramatic words and pictures, and often this is at the expense of accuracy or the privacy of the victim.

(j) For some relatives bereaved by violent crime, a programme which retells the death of their loved one may be an invasion of privacy, whenever it is produced and broadcast.

5.19 The Memorandum submitted by Women Against Rape London to the National Heritage Committee stated:[149]

"Few [victims of rape] would want to see their personal distress exposed to the curiosity of millions or face being pointed at by strangers on the street. But what is most likely to concern a rape survivor is being identified to people who know her, people she is close to or people she must deal with in her everyday life – a prospective employer, her classmates, the man in the corner shop, the plumber … .

This affects not only the woman herself, who may fear being discussed, pitied, blamed, mentally undressed, or engaged in the most intimate conversation by anyone she happens to meet. It also affects her family and friends. A woman must have the right to inform her parents, grandparents, partner, children and others she is close to, if and when she feels is best for her, for them, and for their relationship. Only she can judge whether they will be able to give her moral support, or whether they will condemn her, desert her, or be so distressed that she has to look after them.

It doesn't take a name and address or a photo to identify a woman to people in her own community. It is standard practice for the media to give enough personal details about where she lives or works, her family circumstances, and her occupation to leave little or no question of her identity to those who know her even slightly.

Another danger which came to public attention … was described by the Press Council as jigsaw puzzle identification. Especially where the media decides that a particular rape is a potential best-seller, and all the newspapers are competing for information, the piecing together of different reports can disclose the woman's identity."

5.20 Those who are unable to protect themselves because of their physical or mental conditions (such as children, patients in hospitals, persons who have mental problems, and those who have attempted suicide) are particularly vulnerable to the damaging effect of media intrusion. The more serious cases may result in the development of Post-Traumatic Stress Disorder in the victims, and may even lead to the victim taking his own life in an attempt to escape from the unwanted publicity to which he has been subjected.[150] Given their background and the circumstances in which they are thrust into the spotlight, these vulnerable victims need special protection from the intrusion of the media.

5.21 Media intrusion may be effected by the print media, the broadcast media, or other electronic media such as the Internet. Since the broadcasting industry is regulated by the Broadcasting Authority Ordinance, we deal with the regulation of privacy intrusion by the broadcast media first in the next chapter.