The Development of Privacy Protections in HK

1
The Development of Privacy Protections in HK

• Dr John Bacon-Shone
• Director, Social Sciences Research Centre, HKU
• Chairman, LRC Subcommittee on Privacy

2
History (1)

• The Law Reform Commission in 1980 set up a
  sub-committee to examine existing HK laws
  affecting privacy and to report whether
  legislative or other measures are required to
  provide protection against and to provide
  remedies in respect of undue interference with
  the privacy of the individual, with particular
  reference to the following

3
History (2)

• (a) acquisition, collecting, recording and
  storage of information and opinions pertaining to
  individuals by any persons or bodies, including
  Govt. depts, public bodies, persons or
  corporations
• (b) disclosure or communication of these
  information or opinions to any person or body in
  or out of HK

4
History (3)

• (c) intrusion (by electronic or other means) into
  private premises
• (d) interception of communications, whether oral
  or recorded

5
Reports

• Law relating to the protection of personal data
  (Personal Data Protection Ordinance) (1993
  consultation, 1994 report, 1996 law)
• Regulating Surveillance and Interception of
  Communication (1996 consultation, 1996 report on
  interception)
• Stalking (1998 consultation, 2000 report)
• Civil Liability for invasion of privacy (1999
  consultation, 2004 Report)
• Media Intrusion (1999 consultation, 2004 Report)

6
Whats left?

• Release of civil liability and media intrusion
  reports (later this year)
• Public registers (unlikely)
• Surveillance report (next year?)

7
PDPO and the media

• PDPO protects personal data held in retrievable,
  identifiable form by giving rights to alive data
  subjects and setting up agency (PCO) to help.
• http//www.pco.org.hk/english/ordinance/ordglance.
  html
• PDPO report - chapter specifically about the
  media
• Key exemptions recommended to accommodate free
  speech rights
• Exempt from Use Limitation for data where
  publication is in the public interest
• PCO cannot not conduct on-site investigations
• Exempt from access and correction for unpublished
  data held solely for journalistic purposes.

8
PDPO and the Media (2)

• Collection limitation, data quality still apply
• For collection, we promised to revisit the issue
  of surreptitous collection
• For data quality, we recommended that the media
  be required to take all practicable steps to
  disseminate a correction where inaccurate data
  has been published (nothing relevant in actual
  ordinance)

9
Interception the Media

• History intervened - James Tos bill was passed
  but not put into effect, our proposals have
  stayed in limbo
• We recommended judicial warrants
• Chapter on media no restriction on publication,
  just on interception, so no problem
• Government white paper castrated our proposals by
  removing computer-mediated communications.

10
Surveillance Media

• No report yet, but we recommended 3 crimes for
  physical surveillance trespass with intent to
  observe/obtain personal info, place/use device in
  private premises for sense-enhancing, recording,
  transmitting without consent, place/use device
  outside private premises to monitor occupant or
  collect personal data held on the premises
  without consent.

11
Stalking Media

• Offence of serious harassment (cause that person
  alarm or distress)
• Defences of lawful authority, prevention and
  detection of crime, reasonable in the
  circumstances (taking into account privacy,
  freedom of expression and peaceful assembly)
• Also a civil remedy allowing damages
• Decline to give blanket media exemption
• HAB considering way forward (bureaucratic speak
  for doing nothing, despite people being killed,
  where is LegCo?)

12
Civil Liability Media

• 2 torts
• Intentional or reckless intrusion upon the
  solitude or seclusion where that person has a
  reasonable expectation of privacy, and the
  intrusion is seriously offensive or objectionable
  to a reasonable person
• Defence of lawful authority, prevention,
  preclusion or redress of unlawful or seriously
  improper conduct

13
Civil Liability Media (2)

• Give publicity to private life provided
  disclosure is seriously offensive or
  objectionable to a reasonable person and he knows
  or ought to know in all the circumstances that it
  is seriously offensive or objectionable
• Public interest defence, with partial list of
  what would suffice.

14
Media Intrusion Media

• Obvious unsolved problems almost daily privacy
  abuses by the media
• Original proposal was statutory body that could
  fine and require apologies
• Industry set up Press Council that is ineffective
  as ignored by 75 of the market
• Key criticisms of our proposals
• Fines could be government tool
• CE could manipulate membership