The Law Reform Commission was established by the Executive Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Secretary for Justice or the Chief Justice.

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

The Law Reform Commission

of Hong Kong

Report

Privacy and Media Intrusion

1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of “privacy”.^¹ The Commission appointed a sub-committee to examine the current state of the law and to make recommendations. The members of the sub-committee are as follows:

(Former Assistant General Manager & Head of Strategic Implementation Asia Pacific, HSBC)

Emeritus Professor of Law and Legal Theory, The University of Hong Kong (Chairman of sub-committee from August 1999 to December 2001)

2. The secretary of the Sub-committee is Mr Godfrey K F Kan, Senior Government Counsel.

3. The first task of the Privacy Sub-committee was to study the collection, recording, storage and disclosure of personal data. This resulted in the Commission report on Reform of the Law Relating to the Protection of Personal Data published in August 1994. Thereafter, the Sub-committee issued a consultation paper on the regulation of surveillance and the interception of communications. This was followed by the Commission report on Privacy: Regulating the Interception of Communications published in December 1996. In relation to the regulation of surveillance, the Sub-committee decided that the civil aspects of invasion of privacy should be looked into first before it finalises its recommendations on surveillance. The Sub-committee therefore published a consultation paper on Civil Liability for Invasion of Privacy in August 1999. That consultation paper covered the civil aspects of surveillance as well as other forms of invasion of privacy, and was published together with the consultation paper on Media Intrusion. The Sub-committee reviewed its preliminary recommendations in the Civil Liability Paper and Media Intrusion Paper after the LRC Stalking Report was published in October 2000. The final reports on Civil Liability and Media Intrusion are being published at the same time so that the public can fully appreciate the implications of the recommendations in these two reports. The Sub-committee held 15 meetings to finalise its consultation paper on media intrusion and 20 meetings to complete its report to the Commission. The Commission considered the Sub-committee report in mid-2003 and concluded their deliberations in the autumn of 2003. We record our appreciation to the Sub-committee for the immense amount of hard work they have undertaken on the media intrusion project.

Outline of the report

4. Chapter 1 gives an overview of the public responses to the Sub-committee’s Consultation Paper on Media Intrusion. The results of various opinion polls conducted after the publication of the Consultation Paper are summarised in Chapter 2. Since press freedom and the right to privacy are implicated in the regulation of unwarranted media intrusion, Chapter 3 explains how press freedom can be reconciled with the right to privacy under the Basic Law, the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

5. Chapter 4 studies the nature and incidence of media intrusion in Hong Kong. In order to enable the public to understand how serious media intrusion can be, the impact of media intrusion on the victims is explained in Chapter 5. These two chapters provide support for the view that there is a pressing social need to protect individuals from unwarranted media intrusion in Hong Kong. Since the broadcasting industry is regulated under the Broadcasting Authority Ordinance, we deal with intrusion by broadcasters first in Chapter 6.

6. As regards intrusion by the print media, the effectiveness of the self-regulatory measures adopted by the professional bodies will first be examined in Chapter 7. Then follows a review of the attempts made by the HK Press Council at industry self-regulation in Chapter 8. The proposal of the HK Press Council to transform itself into a statutory body enjoying qualified privilege under libel law is also discussed in that chapter. Since the self-regulatory measures adopted by the journalistic profession and the press industry have not been effective, we examine in Chapter 9 whether the problem can be resolved by issuing a code of practice under the Personal Data (Privacy) Ordinance or by amending the Ordinance.

7. Given that the Personal Data (Privacy) Ordinance has limitations and we do not consider it desirable to amend it to provide for a comprehensive system of privacy protection with respect to media intrusion, we examine in Chapter 10 whether other options suggested by the respondents and commentators can resolve the problem. Since the option of self-regulation by a voluntary press council or a non-governmental statutory press council has been put forward as an alternative to the Sub-committee’s proposal, we study the experience of the press councils and similar bodies in other jurisdictions in Chapter 11. The experience of the UK Press Complaints Commission is singled out in Chapter 12 because some sections of the local press have referred to that commission as a model for Hong Kong to follow.

8. Since there is a trend in Europe complementing media self-regulation with co-regulation, we introduce in Chapter 13 the concept of co-regulation and explain its relationship with self-regulation in the media context. We then discuss in Chapter 14 the desirability of creating a statutory but self-regulating press complaints body to achieve effective self-regulation. We conclude that such a body would not pose a threat to press freedom if there are sufficient safeguards against abuse and outside interference. The details of the proposed self-regulating body are set out in Chapter 15. The subject of anonymity for juveniles concerned in criminal proceedings is addressed in Chapter 16.

9. The Law Reform Commission is unanimous in making the conclusions and recommendations in this report.

Chapter 1 Public responses to the Consultation Paper

________________________________________________________

1.1 The Privacy Sub-committee concluded in the Consultation Paper on Media Intrusion that there was a pressing social need to protect members of the public from unwarranted invasion of privacy by the print media. Since they considered that voluntary self-regulation was unlikely to succeed in the near future, the Sub-committee provisionally recommended that an independent Press Council for the Protection of Privacy (“PCPP”) be created by law to deal with complaints from members of the public about breaches of a press code on privacy-related matters. The Sub-committee recommended that the members of that Council be appointed by an independent Appointments Commission, the members of which (including the chairman) should be appointed by an independent person, who should be chosen by the Chief Executive in consultation with the press industry.

1.2 The Sub-committee further recommended that the Council should consist of not less than 12 nor more than 20 members. Half of them (excluding the Chairman) should be drawn from members of the public and the other half from members of the press. Any person, whether or not they are related to the press, should be entitled to make nominations for press membership in the Council. Further, a retired judge or a senior lawyer should be appointed to be the Chairman, and the Privacy Commissioner should be designated as an ex officio member of the Council.

1.3 As regards the powers and functions of the Council, the Sub-committee recommended that it should have the power to receive complaints (including third party complaints) of alleged breaches of a Privacy Code drawn up by the Council; to initiate its own investigations; to attempt conciliation before a complaint is investigated; and to rule on alleged breaches of the Code. The Council should be under an obligation to ensure that the complaints procedure is fair to the parties. Where the Council has decided on a complaint, it may declare that the newspaper has acted in breach of the Code; reprimand the newspaper; require it to publish an apology, correction or the findings of the Council; or impose a fine on a newspaper which is found to be in serious breach of the Code. The maximum fine should be $500,000 for a first offence and $1,000,000 for a second or subsequent offence. A newspaper which failed to publish an apology, correction or other matters required by the Council should also be liable to a fine. A person aggrieved by any decision of the Council or anything contained in the Code should have a right of appeal to the Court of Appeal.

1.4 During and after consultation, some commentators suggested that the Sub-committee’s proposals in their Consultation Paper were made at the behest of the Chief Executive and the Administration, or that the latter had influenced the deliberations of the Sub-committee in order to achieve the object of controlling the media. These allegations call into question the integrity and independence of those who have given their service to the Sub-committee voluntarily for over 12 years. The Sub-committee firmly denies these allegations. The Sub-committee’s work on media intrusion began in mid-1997, and the need to examine this aspect of privacy was recognised as early as 1994 when the Commission published its Report on Reform of the Law Relating to the Protection of Personal Data.^¹ The Sub-committee’s proposals were the product of full and frank discussion of the issues involved. Neither the Government nor any interest group dictated to the Sub-committee any aspects of its recommendations.

1.5 The Sub-committee received about 80 written submissions. The list of respondents is at Annex 1. Comments made by private individuals and NGOs have also been taken into account in reaching our conclusions. In reviewing the preliminary proposals in the Consultation Paper, we have taken careful note of the degree of public support or censure accorded to each proposal. We are grateful to all those who have contributed to the debate, particularly those who have taken the time and trouble to send in a written submission. Broadly speaking, the respondents can be divided into eight categories:

respondents who agreed in principle with the Consultation Paper’s proposal to establish an independent Press Council for the Protection of Privacy by law;

The Law Reform Commission of Hong Kong

Report

Privacy and Media Intrusion

The Law Reform Commission

of Hong Kong

Report

Privacy and Media Intrusion

CONTENTS

Page

Outline of the report

Chapter 1

Public responses to the Consultation Paper

Chapter	Page

Preface	1

1. Public responses to the Consultation Paper	5

2. Findings of opinion polls	24

3. Press freedom and freedom from media intrusion	33

Freedom of the press	33
International Covenant on Civil and Political Rights	38
American Convention on Human Rights	41
European Convention on Human Rights	42
Council of Europe	47

4. Media intrusion in Hong Kong	51

Public opinion polls	51
The case of HKSAR vs Lau Kong-kwun	52
The case of HKSAR vs Wong Chung Ki	53
Extent of the problem	54
Intrusion upon solitude or seclusion versus unwanted publicity	58
Plaintiffs suing for sexual harassment	59
Plaintiffs in personal injury actions	60
Privacy interests of individuals in certain public places	60
Pictures showing the body or image of a deceased person	62
Victims of crime	64
Patients in hospitals	66

5. Impact of media intrusion on victims	70

6. Regulating intrusion by the broadcast media	78

7. Press self-regulation in Hong Kong	83

Environment in which the media operates	83
Advantages and disadvantages of self-regulation	85
Codes of ethics adopted by journalists’ associations	88
The Journalists’ Code of Professional Ethics	90
Initiatives of the Newspaper Society	91

8. The Hong Kong Press Council	93

Objects and composition	93
Complaints procedure	95
Operation	96
Strengths and weaknesses	97
Lack of remedies for intrusion by non-member newspapers	104
The Hong Kong Press Council Bill	105

9. Personal Data (Privacy) Ordinance	110

Application of the PD(P)O to the media	110
Codes of practice under the PD(P)O	117
Limitations of the PD(P)O	119
Alternative of amending the PD(P)O	124

10. Other suggested options	126

Actions in the public domain	127
Rely solely on market forces	127
Promote education on media literacy	128
Boycott newspapers that fall below ethical standards	129
Encourage more public complaints	131
Encourage the establishment of independent media monitors	132

More effective self-regulation by newspaper industry and
journalistic profession	132
Exhort individual newspapers to adopt their own codes of ethics	132
Exhort individual newspapers to appoint news ombudsmen	132
Legislate for compulsory licensing of journalists	133

More effective self-regulation by the HK Press Council	135
Urge publications to accept the jurisdiction of the HKPC	135
Extend legal aid to media organisations sued for publishing
the findings and decisions of the HKPC	135
Protect reports of the findings and decisions of the HKPC
by statutory qualified privilege	135
Require all newspapers to be members of the HKPC	136

Better protection of media critics	137
Make legal aid available for defamation proceedings	137
Attach qualified privilege to media reports of statements
made by journalists’ associations on media ethics	139
Introduce a new defence to defamation actions	140

More effective remedies for victims of press intrusion	141
Reform the law of libel	141
Seek civil remedies under the proposed privacy torts	141
Set up a legal fund to help victims of press intrusion	144
Establish a statutory commission without sanctions against
media intrusion	145
Appoint a statutory Press Ombudsman	145
Government regulation by setting up a Press Authority	146
Regulation by a Press Privacy Complaints Tribunal	146
Prescribe a mandatory press privacy code without creating
a statutory body	148
Provide legislative backing to a voluntary press privacy code	149

11. Press councils and similar bodies in other jurisdictions	151

Press councils in general	151
Overview of press councils in other jurisdictions	154
Voluntary press councils and similar bodies without any state support	157
Australia	157
Austria	161
Canada	162
Cyprus	165
Estonia	166
Fiji	167
Israel	168
Japan	169
The Netherlands	169
New Zealand	171
Norway	171
Peru	172
The Philippines	173
Russia	174
South Africa	174
Sweden	176
Switzerland	178
Taiwan, China	179
Tanzania	180
Turkey	181
United Kingdom	182
United States	182
Voluntary press councils and similar bodies with some state support	184
Finland	184
Germany	185
Italy	187
Kenya	189
Quebec, Canada	189
Sri Lanka	190
Statutory press councils or similar bodies	190
Bangladesh	190
Belgium	192
Denmark	192
Egypt	195
Ghana	195
India	197
Indonesia	201
Lithuania	202
Luxembourg	203
Macao, China	204
Nepal	205
Nigeria	206
Portugal	206
South Korea	207
Sri Lanka	208
Ireland	209

12. The history of press self-regulation in the United Kingdom	211

General Council of the Press	211
The Press Council	212
The Press Complaints Commission	217
Criticisms of the PCC and suggestions for reform	221

13. Alternatives to self-regulation	226

Principle of subsidiarity	228
Co-regulation as a regulatory model	228
Complementary nature of co-regulation and self-regulation	230

Press self-regulation within a legislative framework to protect individuals from unwarranted press intrusion	236

Need for protection from unwarranted press intrusion	236
Tripartite relationship between the press, the Government and
the public	236
Public support for legislative measures	238
Creating an independent self-regulating body by statute to achieve
effective self-regulation	239
Suggested risk of the legislature extending the reach of the legislation
to matters other than privacy	242
A statutory but independent and self-regulating body	245

A statutory but self-regulating body to protect the public from unwarranted press intrusion	247

Guiding principles	247
Scope of coverage	248
Internet newspapers	249
Membership	251
Nomination of Commission members	253
Nomination of press members	255
Nomination of newspaper members	261
Nomination of magazine members	266
Nomination of journalist members	267
Nomination of academic members	268
Nomination of public members	269
Privacy Commissioner for Personal Data	271
Disqualification from membership	272
Nominal appointment by the Chief Executive	273
Chairman	273
Summary of the proposals on Commission membership	274
Press code on privacy-related matters	275
Factual errors about an individual	278
Power to deal with complaints about alleged breaches of the Code	286
Complaints against publishers, not journalists	286
Power to initiate own investigations and accept third party complaints	288
Circumstances under which the Commission may refuse to
undertake or continue an investigation	291
No requirement to waive legal rights	292
Complaints Committee	295
Duty to declare interests	296
Right to regulate its own procedure	297
No power to compel journalists to disclose sources	298
Duty to give reasons in writing	300
No power to award compensation	300
No power to impose a fine	301
Power to advise, warn, reprimand and order the publication of findings and decisions	304
No power to order an apology	307
Enforcement of adjudications	309
Right of publisher to appeal against adjudication	311
No right to legal representation except with permission	313
Duty to publish findings, decisions and annual reports	315
Anonymity for alleged victims	317
Legal immunity for Commission members and employees but not the Commission itself	317
Media reports of the Commission’s findings and decisions protected by qualified privilege subject to explanation or contradiction	322
Education and research	326
Funding	327
Comparison with proposals in the Consultation Paper	332
Comparison with the HK Press Council	334

16. Anonymity for juveniles concerned in criminal proceedings	338

17. Summary of recommendations	342

Annex 1
List of persons who have made a submission to the Privacy Sub-committee	351
Annex 2
Prima facie examples of unwarranted media intrusion in Hong Kong	353
Annex 3
Jurisprudence on the privacy interests of a deceased person and the surviving relatives	417
Annex 4
Tables summarising the main features of press councils and similar bodies in other jurisdictions	426