Privacy and Hong Kong

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Privacy and Hong Kong

• JMSC6002 Critical Issues
• D. Weisenhaus
• April, 2003

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Privacy

• Is there a right to privacy in Hong Kong?
• What controls privacy interests?
• Whose privacy interests are protected?
• Is there a conflict between privacy of an
  individual and a free press?

3
Privacy Sources of Law

• 1) Basic Law
• 2) Common law
• 3) Legislation
• Bill of Rights Ordinance
• Personal Data (Privacy) Ordinance
• Interception of Communications Ordinance (passed
  but not in effect)
• 4) Proposed legislation
• Anti-stalking
• Civil tort liability, media intrusion regulations

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Hong Kong Basic Law

• Article 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

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More Basic Law

• Article 29 The homes and other premises of Hong
  Kong residents shall be inviolable. Arbitrary or
  unlawful search of, or intrusion into, a
  residents home or other premises shall be
  prohibited.

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More Basic Law

• Article 30 The freedom and privacy of
  communications of Hong Kong residents shall be
  protected by law. No department or individual
  may, on any grounds, infringe upon the freedom
  and privacy of communication of residents except
  that the relevant authorities may inspect
  communication in accordance with legal
  procedures.

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Common Law

• Tort wrongful act for which one can get damages
  or injunction. CIVIL ONLY.
• Breach of confidence
• Intrusion, trespass
• Warren and Brandeis 1890 essay
• Adoption from U.K. court? Michael Douglas case

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Right to Privacy in U.S.

• 4 Torts
• Intrusion upon plaintiffs seclusion or solitude
  or into his private affairs
• Public disclosure of embarrassing private facts
• Publicity which places the plaintiff in false
  light in public eye
• Appropriation, for defendants advantage, of
  plaintiffs name or likeness

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Right to Privacy in Hong Kong?

• While accepted by U.S. Supreme Court, not so in
  Hong Kong. But the future?
• U.K. Court of Appeal recognized a celebrity
  couples right to privacy. (Douglas v. Hello!
  2001) the law recognizes and will appropriately
  protect a right of personal privacy.

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H.K. Legislation Bill of Rights

• Article 14 (1) No one shall be subjected to
  arbitrary or unlawful interference with his
  privacy, family, home or correspondence, nor to
  unlawful attacks on his honour and
  reputation.(2) Everyone has the right to the
  protection of the law against such interference
  or attacks.

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HK Interception of Communications Ordinance

• Prohibits interception of communications by post
  or telecommunications without court order unless
  person consents or allowable by law.
• Status Dec. 1996 Law Reform Commn issued
  Report on Privacy Regulating the Interception
  of Communication (Dropped surveillance). Passed
  Legco June 1997 but still not in effect.

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HK Personal Data (Privacy) Ordinance

• Enacted Aug. 1995, in effect Dec. 1996
• Personal data any representation of
  information relating to a living individual.
• Only personal data recorded in document
• Any data relating to individual (e.g., address,
  health info)
• Only individuals, not corporations

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Proposed Legislation Stalking

• "(a) a person who pursues a course of conduct
  which amounts to harassment of another, and which
  he knows or ought to know amounts to harassment
  of the other, should be guilty of a criminal
  offence
• (b) for the purposes of this offence, the
  harassment should be serious enough to cause
  alarm or distress and
• (c) a person ought to know that his course of
  conduct amounts to harassment of another if a
  reasonable person in possession of the same
  information would think that the course of
  conduct amounted to harassment of the other."
• According to the report, harassment is defined as
  two or more acts in the course of 1 year! (So, if
  two acts were one year apart, they could still
  constitute harassment.) The LRC rejected requests
  that the legislation be civil, rather than
  criminal, and that journalists be exempt in a
  "public interest defense."
• You and I discussed a myriad of concerns but they
  include the following
• 1) the proposed legislation is criminal, not
  civil
• 2) journalists face up to 2 years in prison for
  two acts over the course of a year
• 3) for the one-year criminal penalty, it's a
  negligence standard of liability
• 4) insufficient exemption or defenses for
  legitimate newsgathering activities
• 5) no existence of a First Amendment here
• 6) Hong Kong has insufficient access-to-informatio
  n laws that result in journalists being forced to
  pursue information from public officials and
  public figures by trying to contact them in
  person and thus make the journalists vulnerable
  to charges of harassment.
• 7) Because the bill has emotional appeal (protect
  helpless women who need help from stalking
  ex-husbands), there is not much public support
  for any repercussions for journalists
• Status Final report released by Law Reform
  Commission, Oct. 2000. Pending before Home
  Affairs Bureau.

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Stalking Recommended Defenses

• Recommended defenses"It is a defence for a
  defendant who is charged with the offence of
  harassment to show that (a) the conduct was
  pursued for the purpose of preventing or
  detecting crime (b) the conduct was pursued
  under lawful authority or (c) the pursuit of the
  course of conduct was reasonable in the
  particular circumstances."

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Stalking Criminal Penalties

• Criminal Penalties "(a) a person who is guilty
  of the proposed offence of pursuing a course of
  conduct which amounted to harassment of another,
  and which he knew amounted to harassment of the
  other, should be liable to a fine and to
  imprisonment for TWO years.
• (b) a person who is guilty of the proposed
  offence of pursuing a course of conduct which
  amounted to harassment of another, and which he
  ought to have known amounted to harassment of the
  other, should be liable to a fine and to
  imprisonment for 12 months."

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More Stalking.

• Harassment defined as 2 or more acts over 1 year!
  (E.g., if 2 acts were 1 year apart, they could
  still constitute harassment.)
• LRC rejected requests that the legislation be
  civil, rather than criminal, and that journalists
  be exempt in a "public interest defense."

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Stalking Summary

• Journalists face up to 2 years in prison for 2
  acts over the course of a year. For the 1-year
  criminal penalty, negligence std. of liability
• Hong Kong has insufficient access-to-information
  laws that result in journalists being forced to
  pursue information from public officials and
  public figures by trying to contact them in
  person and thus make the journalists vulnerable
  to charges of harassment.
• Status LRC report in October 2000, pending
  before Home Affairs Bureau

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Proposed Legislation Civil Liability

• Publication as a wrongful act
• Any person who gives publicity to a matter
  concerning the private life of another should be
  liable for statutory tort of invasion of privacy
  provided that the disclosure in extent and
  content is of a kind that would be seriously
  offensive and objectionable to a reasonable
  person of ordinary sensibilities. And he knows or
  ought to know that such disclosure is seriously
  offensive and objectionable to such a person.

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More Civil Liability Public Disclosure of
Private Facts

• We recommend that for the purposes of the
  statutory tort of invasion of privacy based on
  public disclosure of private facts...matters
  concerning the private life of another should
  include information about an individuals private
  communications, home life, personal or family
  relationships, private behavior, health or
  personal financial affairs.
• Irrelevant how private facts obtained. Rejects
  public-interest defense
• Status Consultation paper released by privacy
  subcommittee, Aug. 1999. Expected final report in
  2003.

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Proposed Legislation Media Intrusion

• Statutory Press Council (?)
• Now considering TORT AND CRIME OF INTRUSION To
  intrude into someones solitude or seclusion.
  Would include spying, interception and use of
  telephone calls and emails, electronic
  surveillance by video cameras, long lenses,
  bugging devices (aural and visual surveillance).
• Status Consultation paper released by privacy
  subcommittee, Aug. 1999. Expected final report in
  2003

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Future?

• Final reports on civil liability, media
  intrusion?
• Press Council development?
• Anti-stalking law introduced in Legco?
• Do HK courts look to Douglas case?
• Surprise?