Right of privacy under Hong Kong's current laws

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Right of privacy under Hong Kong’s current laws

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” Prof. Johannes Chan. However, such indirect protection is still far from being comprehensive.

Whereas the right of freedom of speech and press enjoys clear legal protection, 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 14. 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 BL address individual privacy. Art 28 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 29. Art 30 outlaws any interference with the privacy of people’s communications such as mail and telephone calls.

The PD(P)O

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 data subjected to six Data Protection Principles (DPPs), 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 Commissioner and undercover agent case 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.

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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”, 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 ...

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