There is a trend to recognize privacy as a human right that should be protected by law, yet, we can find no general right to privacy existing in Hong Kong nowadays. "The concept of privacy doesn't exist in both Hong Kong and UK common law systems, but it doesn't mean that common law doesn't protect people's privacy. Privacy protection is being provided indirectly"1 Prof. Johannes Chan2. However, such indirect protection is still far from being comprehensive.
Whereas the right of freedom of speech and press enjoys clear legal protection3, only fragmented and narrow legal provisions can be spotted in separate branches of law, with their focus on an individual's interest in his person or property.
Under the current law, our privacy rights are enforceable mainly against the government and corporations, like the the Bill of Rights Ordinance ("BORO") Article 144. Yet, such privacy rights are neither absolute nor all-embracing. The Telecommunications Ordinance and the Post Office Ordinance give government and its law enforcement agencies wide powers to intercept personal communications.
As for the media, while there are legal provisions which would apply to journalists as set out in the next section, Hong Kong still counts quite a lot on the self-discipline of the media, in order to save from a possible detriment of freedom of speech by strict legal instrument. As privacy interests are wider in scope than the interests, the existing law cannot effectively guard certain aspects of our privacy right against individuals or corporations. It's noteworthy that no legal assistance is available to persons seeking compensation under section 66 of the PD(P)O or defamation action. Many tragedy victims or families in grief, who have their privacy infringed, are deterred to seek remedies based on the tort law by the high legal cost proceedings, because the
Legal restrictions applied to journalists
Notwithstanding there is not legal protection as a whole against privacy infringement in Hong Kong, journalists are restricted in certain aspects by the BL, the statutes and the common law.
Articles 28, 29 and 30 in the BL5 address individual privacy. Art 286 protect personal privacy. Journalists will be prosecuted if they collect information by means of unlawful bodily search, arrest, detention or imprisonment. Unlawful search of one's home is also not allowed under the Art 297. Art 308 outlaws any interference with the privacy of people's communications such as mail and telephone calls.
Journalists' jobs have a lot to do with newsgathering and publishing information, these activities are bound by the Personal Data (Privacy) Ordinance (PD(P)O). The PD(P)O protects a person's personal data9 subjected to six Data Protection Principles (DPPs)10, which state the requirements on the collection, accuracy, use, disclosure and security of personal data against interference with private, family home life and physical freedom, disclosure of embarrassing private facts like name and identity and interference or misuse of correspondence and private communications. A journalist will face criminal charge(s) if s/he improbably collects or uses one's personal data. The cases Eastweek v. Privacy Commissioner11 and undercover agent case12 has shed some light on the use of DDP: allowing journalists to take photographs of unidentified people, and disallowing them to publish details of undercover agent.
Exemptions under DPO
By the virtue of s.61 of the DPO, journalists are also empowered to discover the truth and probably inform the public as they are allowed to be exempted from certain provisions of the DPO for collecting and using data which is involved in "news activity"13, given that such data is used "solely for the purpose of that activity (or any directly related activity)"
For instance, journalists can deny access data from the data subject before and after publication. They can also use data for non-original purpose, and be exempted from the inspection and investigation of the Privacy Commissioner until after the data is published.
The JOO, CPO and MO
Court proceeding is one of the most frequently-covered areas in the news reports and other media channels. As justice should be readily accessible and seen to be done, media coverage is usually allowed unless privacy of certain parties in respective cases require protection.
The Juvenile Offenders Ordinance (JOO) limits the journalists' activities by prohibiting journalists from revealing the name, address or school or publishing the photo of any juvenile offender. Pursuant to the Criminal Procedure Ordinance (CPO), the addresses of the suites are kept confidential to protect children from any intrusion by the media or the offender, and that any media coverage that may lead to the identification of the victim in sexual abuse cases is also prohibited. Likewise, the Magistrates Ordinance (MO) protects people involved in committal proceedings from media coverage.
Some aspects of privacy are provided by the common law branches namely trespass to land, nuisance, breach of contract, breach of confidence, defamation and conversion.
Journalists will be deemed to be trespassers, like the one in the Gigi Leung case14, if they enter one's property or install camera or microphone on one's premise without permission or under false pretenses.
A claimant can establish a cause of action for nuisance against a journalist who disturbs the free use of his/her property. Examples are the act of harassing telephone calls or prolonged encampment outside a private residence.
Breach of contract is another branch of common law enforceable against a journalist who discloses information against his/her contractual agreement with another party.
Breach of confidence will be the cause of action when the media is sued for disclosure of information given or received in confidence. The media can also be sued, as a third party, for further publication of confidential information if it should have known that such information was confidential. Famous cases are the Princess Diana gym case15, Li Yau-wai v. Genesis Films16, Douglas v. Hello!17 and the Campbell Engineering18 trade secrets case.
Defamation impacts journalism in a way that they need to be very careful when making their statement which might lower one's reputation.
Journalists would be involved in conversion when, in the course of information collection, dealing with a chattel in a manner repugnant to a person's immediate right of possession.19
Media has certain defences, such as publishing the information which was in the public interest, e.g. exposes inequality, and collecting information which was already in public domain, and thus, not confidential.
LRC's 2004 proposals' impact on Hong Kong's freedom of the press
Once accepted and enforced, the 2004 proposal of the LRC would, directly and indirectly, inflict legal pressure and unnecessary restrictions on the media, and, in turn, undermine our freedom of press. Apart from the minority black-sheep that the proposal targets, the proposal will victimize all other journalists, making it much harder for them to produce good stories, inform the public and scrutinize government and business.
The two main aspects suggested in the proposal are (i) the creation of two new civil torts for media intrusion and publication of private facts and (ii) the establishment of a statutory Press Commission to handle privacy complaints involving all the print media and bound them by a newly created press privacy code.
Possible detriments on freedom of press
Two New Torts
The new torts produce detriments effect on Hong Kong's freedom of press by (i) impacting small media organizations with financial costs, including legal fee and remedies, (ii) placing unnecessary psychological and legal burden on journalists' and respective media, and (iii) substantially hindering journalists' newsgathering activities.
Once convicted, small newsrooms which cannot afford the damages will have to close down; journalists' careers will be ruined. These could happen when one or two mistakes committed, and these could arise only from their insufficient legal understanding. This concern was suggested by Article 45 Concern Group member Alan Leong: "It is hard to grasp the kind of legal restriction (in the proposal concerned) accurately, even for lawyers." To elude from the aforementioned tragedies, journalists will have to bear undue psychological burden in the course of their newsgathering activities. They might have to give up on some valuable stories of public interests in fear of being sued in tort.
Also, tort damages can be lucrative. In the proposal, publication is not necessary for the first tort intrusion to occur. Such widening of scope of tort may provoke numerous unnecessary money-seeking legal actions against big media organizations. For public interest, active journalists or news organizations may very often need to cover news in a way that infringe the much widened restriction, it would certain frustrate them if they have to go through all the tedious judicial proceedings while they are working ethically.
Under the first proposed tort law, any seriously offensive or objectionable intrusion upon the solitude or seclusion of a person who has a reasonable expectation of privacy would be open to a lawsuit. Such liability includes intrusion in public places, even though the place is accessible to others.
News always appears instantaneously in public areas, sad to say, such tightening of legislation necessitates the journalists to contemplate, or sometimes inquire, every single information subjects (e.g. all the people in a photo taken outside the high court) as to whether or not they have expectation of privacy. In many circumstances, both the number of legal factors and information subjects can be very large. Those contemplations and inquiries would be not only hard, but impractical, not to mention the application of consent for future personal defence required under the proposal.
Under the second proposed tort law, knowingly giving offensive publicity to a matter concerning an individual's private life would also attract civil penalties under the other law the commission proposed. This tort will also put in chain a lot of journalist. The defence of public interest is not easy to prove, for instance, it often requires reporters to disclose their hidden sources. Worse still, the public interest defense doesn't apply to the first tort, which is, as HKJA said, a serious impediment on investigative journalism.
Statutory Press Commission
There are three main considerations which casts doubts on the effect of the proposed statutory press commission on Hong Kong's freedom of press. Firstly, Hong Kong Government has a bad record of its decision to curtail the freedom of speech in Hong Kong: The Article 23 legislation, the ICAC's raid on newsrooms, and its snooping on a conversation between suspect and lawyers. Secondly, the privacy problem has not deteriorate to an extent which posts a pressing need of such a statutory body, and as some of the largest news organizations said, the establishment of such commission wouldn't make too much difference from the present press council. Thirdly, for the 14 jurisdictions in the proposal where statutory press councils are found, all but two of them do not enjoy high level of freedom of press. Common law countries like UK and US are not in the list.
In light of these factors, although the proposed Statutory Commission is meant for handling privacy complaints only, it is not unreasonable to doubt whether or not this is just another move by the government to jeopardize the freedom of speech in Hong Kong, which has become increasingly scarce and treasonable after the handover. As argued by the representatives of the HKJA and the Press Council in a Home Affairs Special Meeting on 14th January 2005, it would undermine the freedom of speech of Hong Kong if we allow organization of any form to restrict the media.
In conclusion, as for those in countries which enjoy high level of freedom of press, our journalists must be given enough room discipline themselves while they are holding up a mirror to society. The more constraints put on our journalists, the harder their jobs will be, the less clear the image of the mirror of society will be, and the less freedom of press will be enjoyed by the Hong Kong society as a whole.