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Published online by Cambridge University Press: 29 May 2015
Privacy is an important value which is internationally recognised as worthy of protection. However, it has been under constant challenge for a number of reasons including changes in technology which facilitate informational and other forms of surveillance and privacy-invasive media practices. Because of its multi-faceted nature, privacy is typically regulated by a variety of different means. Data protection laws seek to ensure the fair handling of personal information. Criminal sanctions are used to outlaw more serious invasions of privacy, including certain breaches of communications privacy and uses of surveillance devices. Assorted civil actions are relied on to protect broader interests in privacy. However, the piecemeal nature of privacy protection is often found to be inadequate and victims frequently lack appropriate remedies. Therefore, many common law countries either provide for or are actively considering the introduction of civil remedies to specifically address general privacy issues. There has also been active consideration of measures to regulate media organisations, especially in the light of the Murdoch scandal in the United Kingdom. The inadequacies in the law have prompted calls for law reform in Hong Kong, and recommendations have been made in the report on Civil Liability for Invasion of Privacy (2004). It examined the need of individuals to be able to seek civil remedies for unwarranted invasion of privacy. In it the Law Reform Commission of Hong Kong (HKLRC) proposed the introduction of specific statutory torts of privacy to cover acts and conduct frustrating the reasonable expectation of an individual’s privacy. It proposed that a person, who invaded another’s privacy by intruding upon their solitude or seclusion, or by intruding into their private affairs or concerns, should be liable in tort. It also recommended another tort for invasion of privacy arising out of public disclosure of private facts. This article focuses on the issue of civil liability and analyses the inadequacies of existing laws and regulatory regimes and attempts to come up with a model that is most suitable for Hong Kong. It takes the HKLRC’s recommendations as its starting point but refines and modifies them, drawing on the insights that have since become available from the work of other law reform bodies and further developments in overseas case law.
1 For example, Pirate bay co-founder Gottfrid Svartholm has been sentenced to jail for two years for hacking into a bank’s computers and resulted in personal data of about thousands of Swedes being stolen subsequently published online. See online, <http://www.bbc.co.uk/news/technology-23000071> (last accessed 20 February 2014). A local example which generated heated debate about the ethical standards of the press and led to a massive protest in Hong Kong related to the publication of some photographs of a rising pop singer while she was changing backstage during a concert. The Hong Kong Television and Entertainment Licensing Authority received more than 2,000 complaints and the matter was subsequently referred to the Obscene Articles Tribunal for further action. See German Press Agency, “Hong Kong Magazine to be Prosecuted in Pop Star Pictures Row” The Raw Story (2 November 2006).
2 Cap. 486.
3 Eastweek Publisher Ltd. and Another v. Privacy Commissioner for Personal Data [2000] 2 HKLRD 83; [2000] 1 HKC 692.
4 The incident concerned a well-known artist Edison Chen’s private photographs which depicted sexual acts of several well-known female actresses. See further Damon Pang, Bonnie Chen, and Diana Lee, “Eight Now Held in Internet Sex Probe” The Standard (4 February 2008).
5 Cap. 383.
6 Hong Kong Bill of Rights Ordinance (Cap. 383) s. 7.
7 The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004) 93 at para. 5.7.
8 See Committee on Privacy, Great Britain, Report of the Committee on Privacy (1972) (The Younger Report). It should be noted that the Younger Committee was restricted by its terms of reference to consider privacy issues in the private sector only.
9 Kate Foord, “Defining Privacy” (Victorian Law Reform Commission, Occasional Paper, 2002) 4-23.
10 Parent, William A., “Privacy, Morality and the Law” (1983) 12(4) Philosophy and Public Affairs 269 Google Scholar, 269.
11 Fried, Charles, An Anatomy of Values: Problems of Personal and Social Choice (Harvard University Press, 1970) at 140.CrossRefGoogle Scholar
12 Westin, Alan, Privacy and Freedom (New York: Atheneum, 1967) at 7.Google Scholar
13 Warren, Samuel and Brandeis, Louis D., “The Right to Privacy” (1890) 5 Harvard Law Review 193 CrossRefGoogle Scholar, 205.
14 See Allen, Anita L., Uneasy Access: Privacy for Women in a Free Society (Totowa, NJ: Rowman & Littlefield, 1988) at 7.Google Scholar
15 See Parker, Richard B., “A Definition of Privacy” (1974) 27(2) Rutgers Law Review 269 Google Scholar, 288. The author gave an example of loss of privacy when someone is forced to bear an unwanted child. She did not really lose any information in this case.
16 Committee on Privacy, Great Britain, Report of the Committee on Privacy (1972) (The Younger Report) 273-274.
17 See Wacks, Raymond, Personal Information (Oxford University Press, 1989) at 19–20.Google Scholar
18 See ibid. at 21.
19 Rossler, Beate, The Value of Privacy (Polity Press, 2005) at 113 Google Scholar, 129.
20 New Zealand Law Commission, A Conceptual Approach to Privacy, Miscellaneous Paper No 19 (2008) at 43.
21 Rossler, Beate, The Value of Privacy (Polity Press, 2005) at 145.Google Scholar
22 Bloustein, Edward, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39 New York University Law Review 962 Google Scholar, 1002-3.
23 [2004] 2 AC 457.
24 Ibid. at para. 51.
25 [2005] 1 NZLR 1.
26 Ibid. at [239].
27 Solove, Daniel, “A Taxonomy of Privacy” (2006) 154 U. Pa. L. Rev. 477 CrossRefGoogle Scholar, 488-9.
28 A recent example relates to the complaint made to the Hong Kong Privacy Commissioner about the clandestine shooting of intimate pictures of some local television celebrities at their own homes. Although the complaint was made in relation to the data protection, it is not difficult to see that the thrust of the complaint lies in a combination of intrusion and public disclosure. The intrusiveness of how the pictures were taken as well as the subsequent publication had a humiliating effect on those complainants. See Office of the Privacy Commissioner for Personal Data, Hong Kong, Unfair Collection of Two Artistes’ Personal Data by FACE Magazine Limited, Report No R12-9164 (2012), online: <http://www.pcpd.org.hk/english/publications/files/R12_9164_e.pdf> (last accessed 20 February 2014).
29 See S652A.
30 New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper No 1 (2007) at para. 6.18-6.21.
31 Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 489; Virgil v. Time, Inc. (9th Cir.1975) 527 F.2d 1122, 1127; Forsher v. Bugliosi (1980) 26 Cal.3d at 809; Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d at 534; Kapellas v. Kofman 1 Cal.3d at 35-36.
32 Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 491-493.
33 Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 278-9; Kapellas v. Kofman (1969) 1 Cal.3d 20, 36; Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d, 541.
34 Virgil v. Time, Inc. (9th Cir.1975) 527 F.2d 1122, 1129.
35 208 CLR 199.
36 Ibid. at 328.
37 [2004] NZCA 34; [2003] 3 NZLR 385.
38 [2012] 3 NZLR 672.
39 For example in Sim Kon Fah v. JBPB & Co [2011] 4 HKLRD 45, the court considered privacy protection through an action of breach of confidence rather than a completely new action.
40 See Sir Frederick Goodwin v. MGN Ltd [2011] EWHC 1437 (QB).
41 See e.g. McKennitt v. Ash [2008] QB 73 at 82 and Associated Newspapers v. HRH Prince of Wales [2008] Ch 57 at 116-7.
42 See e.g. Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. (1948) 65 R.P.C. 203 and Coco v. Clark [1968] FSR 415.
43 For example in Attorney General v. Guardian Newspapers Ltd. (No.2) [1990] AC 109 and Campbell v. Mirror Group Newspapers [2004] 2 AC 457.
44 Tilbury, Michael, “Privacy and private law: developing the common law of Australia” in Bunt, Elise and Harding, Matthew, eds., Exploring Private Law (Cambridge University Press, 2010) at 86 CrossRefGoogle Scholar and 96.
45 [1992] 2 HKLR 314.
46 [2011] 4 HKLRD 45.
47 [1994] 1 HKLR 329 at 348.
48 The issue of privacy has generated increased judicial attention in recent years in the United Kingdom because of the UK’s obligation to give effect to the European Convention of Human Rights which contains a right to privacy in article 8 similar to that in article 17 of the ICCPR whereas Hong Kong does not have such an obligation.
49 In fact such an “expanding” effect of the traditional action of breach of confidence is at its sharpest in the Campbell case. Lord Nicholls seemed to suggest that there is no longer a need for the information, at least in relation to the extended form of breach of confidence, to have the necessary quality of confidence in it. But it is also worth noting that Lord Nicholls (minority) also recognised the awkwardness in synonymising confidential and private information and held the view that an action of misuse of private information is a better venue to deal with privacy cases.
50 New South Wales Law Reform Commission, Invasion of Privacy, Report No 120 (2009) at para. 7.1.
51 Tilbury, Michael, “Reviewing Privacy Law in New South Wales” (2008) 26 Communications Bulletin 1 Google Scholar at 2.
52 [2010] EWCA Civ 1276.
53 Cap. 532. The Ordinance is enacted to regulate the conduct of interception of communications and the use of surveillance devices by or on behalf of public officers.
54 See online, <http://www.hkreform.gov.hk/en/publications/subject.htm#privacy> (last accessed 20 February 2014).
55 The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004), 93 at para. 5.7.
56 Ibid. at 265 and 242.
57 See The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004), 139 recommendation 2 and 165 recommendation 7.
58 See e.g. Douglas v. Hello! [2001] 2 WLR 992, McKennitt v. Ash [2008] QB 73, Theakston v. MGN Ltd [2002] EWHC 137.
59 See supra note 28.
60 Australian Law Reform Commission, Review of Australian Privacy Law, Discussion Paper No 72 (2007) vol 1, 26, Proposal 5-1. See also Greenleaf, Graham and Nigel Waters, In support of a statutory privacy action in Australian law, Submission to the Australian Law Reform Commission on the Review of Australian Privacy Law Discussion Paper 72 and to the New South Wales Law Reform Commission on Consultation Paper 1.
61 The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004) at 139 recommendation 2.
62 Ibid. at 165, recommendation 7.
63 [2005] 1 NZLR 1.
64 Ibid. at para. 164.
65 The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004) at 165 recommendation 7.
66 Campbell v. MGN [2004] 2 AC 457 at para. 22.
67 [2005] 1 NZLR 1 at 64-5.
68 [2009] 1 NZLR 220.
69 Ibid. at 466, at para. 21.
70 [2008] EWHC 1777.
71 For example, McKennitt v. Ash [2008] QB 73, 82 and Associated Newspapers v. HRH Prince of Wales [2008] Ch 57 116-7.
72 [2008] 3 WLR 1360.
73 Raymond Wacks, Privacy and Media Freedom (Sweet & Maxwell, 2013) at 245.
74 Callinan has similarly commented that whether a reasonable expectation of privacy exists is a matter of fact. See Callinan, Ian, “Privacy, Confidence, Celebrity and Spectacle” (2007) 7 Oxford University Commonwealth Law Journal 1 Google Scholar at 12.
75 Butler, Desmond, “A Tort of Invasion of Privacy in Australia?” (2005) Melbourne University Law Review 11.Google Scholar
76 [2009] EMLR 22.
77 Ibid. at 415.
78 See e.g. Cheng & Anor v. Tse Wai Chun [2000] 3 HKLRD 418 at 430 where the defendant succeeded in using the defence of fair comment in a defamation case. The court was not prepared to restrict the scope of the defence and stated that “the purpose and importance of the defence of fair comment are inconsistent with its scope being restricted to comments made for particular reasons or particular purposes, some being regarded as proper, others not. Especially in the social and political fields, those who make public comments usually have some objective of their own in mind, even if it is only to publicise and advance themselves … they may hope to achieve some result, such as promoting one cause or defeating another, elevating one person or denigrating another.”
79 [2008] 2 NZLR 277 para. 25.
80 [2005] 1 NZLR 1.
81 Ibid. at para. 256.
82 See [2009] 1 NZLR 220.
83 Moreham, N. A., “Why is Privacy Important? Privacy, Dignity and Development of the New Zealand Breach of Privacy Tort” in Finn, Jeremy and Todd, Stephen, eds., Law, Liberty, Legislation (LexisNexis, 2008) at 241-2Google Scholar.
84 The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004) at 141-9.
85 See The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004) at 150 para. 6.114.
86 [1977] 1 WLR 760.
87 Ibid. at 763-4.
88 Victorian Law Reform Commission, Surveillance in Public Places, Final Report No 18 (2010) at 156.
89 Australian Press Council, Submission to Australian Law Reform Commission PR 48, Review of Privacy, 8 August 2006.
90 [1973] 1 All ER 241.
91 Ibid. at 260.
92 Moreham, N. A., “Privacy in the Common Law: A doctrinal and Theoretical Analysis” (2005) 121 Law Q. Rev. 628 Google Scholar at 655.
93 Wacks, Raymond, Privacy and Media Freedom (Sweet & Maxwell, 2013) at 145.CrossRefGoogle Scholar
94 Ibid.
95 [2005] 1 NZLR 1.
96 Ibid. at para. 133-4.
97 Australian Law Reform Commission, For Your Information: Australian Law and Practice, Report No 108 (2008) vol 3, 2584, recommendation 74-2.
98 Aubry v. Éditions Vice-Versa [1998] 1 SCR 591.
99 Victorian Law Reform Commission, Surveillance in Public Places, Final Report No 18 (2010) at 157 para. 7.180.
100 The New South Wales Law Reform Commission, Invasion of Privacy, Report No 120 (2009) at 33.
101 Re Guardian News and Media Ltd & Anors [2010] 2 WLR 325 at para. 51.
102 Mosley v. News Group Newspapers Ltd [2008] EWHC 1777 (QB); [2008] EMLR 679 [135].
103 [2010] EMLR 16.
104 Cap. 23.
105 The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004) at 172.
106 See The New South Wales Law Reform Commission, Invasion of Privacy, Report No 120 (2009) at 89 and The Australian Law Reform Commission, supra note 62, recommendation 74-3(a).
107 Law Reform Commission of Ireland, Privacy: Surveillance and the Interception Communications Report No 57 (1998) at 142-3.
108 Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice Report No 108 (2008) vol 1, 377, recommendation 8-1.
109 See s. 4 PDPO which defines personal data to mean any data relating directly or indirectly to a living individual.
110 New South Wales Law Reform Commission, Invasion of Privacy, Report No 120 (2009) at 50.
111 The Law Reform Commission of Hong Kong, Civil Liability for Invasion of Privacy, Report (2004) at 134.
112 [2007] VCC 281.
113 (1985) 156 CLR 522.
114 Ibid. at 527.
115 For example, in the area of unauthorised disclosure of private information as seen in the Douglas v. Hello [2001] QB 967.
116 See, for example, Alcock v. Chief Constable of the South Yorkshire Police [1991] 4 All ER 907.
117 Hinz v. Berry [1970] 2 QB 40.
118 [1897] 2 QB 57.
119 Ibid. at 58.
120 (1888) 13 AC 222.
121 [2008] VSCA 236.
122 175 FCR 350.
123 Ibid. at para 26.
124 [2004] 2 AC 406.
125 Ibid. at 426 para. 47.
126 [2007] VCC 287.
127 [2003] QDC 151.
128 Ibid. at para. 475.
129 [2004] VSC 113.
130 Ibid. at para.161.
131 For example, a section like s. 66 of PDPO which gives claimants a right to recover damages for injured feelings.
132 Hong Kong Judiciary, The Interim Report on Civil Justice Reform, 21 November 2001, para. 40, online: <http://www.civiljustice.gov.hk/ir/paperHTML/Section_D1.html> (last accessed 20 February 2014).
133 The CJR aims at increasing cost-effectiveness in litigation proceedings and resulted in a number of amendments to the existing procedural laws and primarily the Rules of the High Court Cap. 4A.
134 Constitutional and Mainland Affairs Bureau, Review of the Personal Data (Privacy) Ordinance, Consultation Document (2009) 34, online: <http://www.cmab.gov.hk/doc/issues/PDPO_Consultation_Document_en.pdf> (last accessed 20 February 2014). Such proposals were given effect recently following the amendments of the PDPO See the newly added s. 66B.
135 Cap. 480.
136 Ibid. at s. 85(3).
137 The Law Reform Commission of Hong Kong, Conditional Fees, Consultation Paper (2005).
138 Art. 35.
139 The Law Reform Commission of Hong Kong, Conditional Fees, Consultation Paper (2005) at 140.