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 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.
Common Law
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 case, 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 case, Li Yau-wai v. Genesis Films, Douglas v. Hello! and the Campbell Engineering 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.
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.
(1943 words)
MingPao Article “Privacy and the obligation to keep secrets” (2005-06-15)
The Dean of the Faculty of Law of HKU
BL/A27: “Hong Kong residents shall have freedom of speech, of the press and of publication…. ; BORO/A16: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through other media of his choice; BORO/A16 (3) The exercise of the rights provided for in paragraph 2…carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall be only such as are provided by law and are necessary; a) for respect of the rights or reputations of others…
It forbids arbitrary or unlawful interference with a person’s privacy against government only.
Although Article 39 of BL has given effect to the ICCPR, stipulating Article 14 of the BORO to protect our privacy, such Article binds only the government, thus it doesn’t apply to journalists.
Articles 28: The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited…
Articles 29: The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.
Articles 30: The freedom and privacy of communications of Hong Kong residents shall be protected by law…
Personal data is broadly defined and includes all retrievable information, in any (permanent) medium, that could identify an (living ) individual.
Six DPPs: DPP1 – Lawful purpose and manner, personal data; relevant to the data user’s activities; DPP2 – All practical steps to ensure Accuracy, and not keep the data longer than necessary; DPP3 – Not to use the purposes other than the original purposes; DPP4 – All practical steps to protect data; DPP5 – All practical steps to ensure a person can ascertain a data user’s policies, wt data and purposes; DPP6 –data subject has the right of access personal information and right to correct
Eastweek case: The Court of Appeal held (a) that personal data might be collected by means of a photograph; (b) that journalists can legally take photographs of unidentified persons in public area to illustrate news articles; and (c) that personal data collection means the compilation of information about an identified person by data user.
Undercover agent case: Case No.: ar0102-4 of the Office of the Privacy Commissioner for Personal Data (PCO): In an article, a copy of a police undercover agent’s witness statement in which his Hong Kong Identity Card Number, Police UI Number and full Chinese Name was disclosed without consent. Since the display of those particulars didn’t serve any public interest, the newspaper was later found to be in breach of DDP3.
"News activity" means any journalistic activity and includes- the gathering of news; preparation or compiling of articles or programmes concerning news; or observations on news or current affairs, for the purpose of dissemination to the public; or the dissemination to the public of any article or programme of or concerning news; or observations on news or current affairs.
Gigi Leung Case: the black sheep of journalists who ransacked singer Gigi Leung's hotel room could definitely be sued for trespass if such news is proved to be true.
Diana, Princess of Wales sought to bring a breach of confidence action against the Sunday Mirror after it published photographs of her exercising in a gym.
Saltman Engineering Co Ltd v. Campbell Engineering Ltd, (1948) 65 P.R.C. 203
Church of Scientology v. Gerald Armstrong (1984)