Civil Liability For Invasion Of Privacy

THE LAW REFORM COMMISSION

OF HONG KONG

SUB-COMMITTEE ON PRIVACY

CONSULTATION PAPER ON

CIVIL LIABILITY FOR INVASION OF PRIVACY

This consultation paper can be found on the Internet at: http://www.info.gov.hk> during the consultation period.

This Consultation Paper has been prepared by the Privacy sub-committee of the Law Reform Commission. It does not represent the final views of either the sub-committee or the Law Reform Commission, and is circulated for comment and criticism only.

The sub-committee would be grateful for comments on this Consultation Paper by 30th November 1999. All correspondence should be addressed to:

The Secretary

The Privacy sub-committee

The Law Reform Commission

20th Floor, Harcourt House

39 Gloucester Road

Wanchai

Hong Kong

Telephone: (852) 2528 0472

Fax: (852) 2865 2902

E-mail:

It may be helpful for the Commission and the sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential.

Anyone who responds to this Consultation Paper will be acknowledged by name in the subsequent report. If an acknowledgement is not desired, please indicate so in your response.

THE LAW REFORM COMMISSION

OF HONG KONG

SUB-COMMITTEE ON PRIVACY

CONSULTATION PAPER ON

CIVIL LIABILITY FOR INVASION OF PRIVACY

CONTENTS

Chapter Page

Preface 1

1. The right to privacy 4

International Covenant on Civil and Political Rights 4

United Nations report on privacy 4

The Hong Kong Bill of Rights Ordinance 5

The Basic Law of the Hong Kong Special Administrative Region 5

Definitions of “privacy” 7

Functions of privacy 12

Conclusion 15

2. The right to privacy and freedom of expression 16

Introduction 16

Freedom of expression 17

Reconciling privacy with freedom of speech 24

Freedom of the press 28

Freedom to seek, impart and receive information 32

Freedom of expression on the Internet 33

Privacy in networked communications 34

3. Remedies under the Personal Data (Privacy) Ordinance 37 Protection Principles 37

Administrative remedy 38

Civil remedy 38

4. Protection of privacy at common law 40

Introduction 40

Trespass to land 40

Private nuisance 43

Breach of confidence 44

Infringement of copyright 46

Breach of contract 47

Intentional infliction of emotional distress 47

Defamation 48

Malicious falsehood 49

Kaye v Robertson 49

Concluding remarks 51

5. The law of privacy in other jurisdictions 52

Australia 52

Canada 53

China 54

France 55

Germany 56

Ireland 56

New Zealand 57

United Kingdom 57

United States 60

Concluding remarks 62

6. Arguments for and against the creation of

a general tort of privacy by statute 63

7. Intrusion upon the seclusion or solitude of another 70

The Basic Law of the Hong Kong Special Administrative Region 70

Need for protection from intrusion upon privacy 71

Intrusion upon the “solitude” or “seclusion” of another 73

Intrusion 75

Physical intrusion 76

Non-physical intrusion 76

Aural surveillance 77

Visual surveillance 79

Aerial surveillance 81

Intrusion into the private affairs or concerns of another 81

Harassment 81

Intrusion and the acquisition of personal information 82

The basis of liability 82

Offensiveness to a reasonable person 83

Conclusion 83

Practical examples of reasonable expectations of privacy 84

(a) Privacy in public toilets 84

(b) Privacy in the workplace 85

8. Public disclosure of private facts 96

The need to restrain unwanted publicity 96

Private facts 98

Disclosure of information obtained by unlawful means 102

Public disclosure 104

Offensiveness to a reasonable person 106

Personal Data (Privacy) Ordinance 106

Conclusion 109

9. Appropriation of a person’s name or likeness 111

Unauthorised use of a person’s personality at common law 111

Other jurisdictions 112

Is appropriation of a person’s name or likeness a 114

privacy concern ?

Use of personal data in advertisements 118

Conclusion 121

10. Publicity placing an individual in a false light 122

Introduction 122

Distinction between false light tort and defamation 123

Is publicity placing someone in a false light a privacy concern ? 124

11. Defences 127

Consent 127

Consent to intrusion 127

Consent to public disclosure 133

Lawful authority 135

Protection of person or property 135

Absolute or qualified privilege 136

Information in the public domain 137

Public records 138

Publication of private facts previously made known 140

Privacy of offenders 143

Anonymity of victims of sexual offences 144

Anonymity of victims of non-sexual crime 145

Anonymity of former offenders 147

Public interest 149

Newsworthiness 151

Public figures 152

Voluntary public figures 153

Involuntary public figures 154

The “mores test” 155

Matters of legitimate concern to the public 155

Crime and fraud 156

Seriously improper conduct 157

“Public dishonesty” and serious malpractice 158

Conduct of officers in public bodies and public companies 161

Matters dangerous to public health or safety 161

Matters of legitimate concern “to the public” 162

Relevance of legality of acquisition to liability for disclosure 164

Relevance of public interest disclosure to liability for intrusion 164

Relevant considerations which ought to be taken into account 165

by the courts

Civil remedies attached to criminal offences 166

12. Enforcing the right to privacy 167

Proof of damage 167

Damages 167

Injunction 169

Published apology 171

Account of profits 171

Delivery up 172

Recommendations 173

Form of trial 174

Limitation period 175

Parties to actions for invasion of privacy 176

Admissibility of evidence obtained through invasion of privacy 177

Relationship between the new remedies and existing remedies 179

Level of court 179

13. Summary of recommendations 180

Annex - Breach of confidence 185

iv

Preface

______

1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of “privacy”. The Commission’s terms of reference are as follows:

“To examine existing Hong Kong laws affecting privacy and to report on 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 matters:

(a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;

(b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong;

(c) intrusion (by electronic or other means) into private premises; and

(d) the interception of communications, whether oral or recorded;

but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence.”

2. The Law Reform Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the sub-committee are:

The Hon Mr Justice Vice-President,

Mortimer, GBS (Chairman) Court of Appeal

Dr John Bacon-Shone Director, Social Sciences Research Centre,

The University of Hong Kong

Mr Don Brech Principal Consultant,

Records Management International Limited

Mrs Patricia Chu, JP Deputy Director of Social Welfare (Services),

Social Welfare Department

Mr A F M Conway Chairman,

Great River Corporation Limited

Mr Edwin Lau Assistant General Manager Head of Personal Banking,

HSBC

Mr James O’Neil Deputy Solicitor General (Constitutional),

Department of Justice

Mr Peter So Lai-yin Former General Manager,

Hong Kong Note Printing Limited

Prof Raymond Wacks Professor of Law and Legal Theory,

The University of Hong Kong

Mr Wong Kwok-wah Chinese Language Editor,

Asia 2000 Limited

3. The secretary to the sub-committee is Mr Godfrey K F Kan, Senior Government Counsel.

4. The collection, recording, storage and disclosure of personal data have been addressed in the Law Reform Commission report on Reform of the Law Relating to the Protection of Personal Data published in August 1994. Thereafter, the sub-committee published a consultation paper on the regulation of surveillance and the interception of communications. The Commission report on the regulation of interception of communications was issued in December 1996.[1] It recommends that unauthorized interception of telecommunications or mail be a crime. As regards surveillance, the sub-committee has decided that the civil aspects of invasion of privacy should be looked into before it finalises its recommendations on the regulation of surveillance. This paper deals with civil liability for invasion of privacy. It covers the civil aspects of surveillance as well as other means of intrusions. The criminal aspects of surveillance will be dealt with in the Commission report on Criminal Sanctions for Unlawful Surveillance to be issued later.

5. Since the passing of the Personal Data (Privacy) Ordinance and the establishment of the Office of the Privacy Commissioner for Personal Data, the general public has become more concerned about privacy issues. The 1996-97 Annual Report of the Privacy Commissioner reported that the levels of complaints and enquiries have been significantly above expectations. His office received about 170 enquiries and 4 complaints per week in 1997.[2] The Commissioner noted that violations of personal data privacy can have far-reaching adverse consequences for an individual economically and psychologically.[3] An opinion survey on public attitudes to and preparedness for the Personal Data (Privacy) Ordinance revealed that as a social policy issue, privacy was given an average rating in terms of importance of about 7.6 out of 10. This was lower than unemployment but roughly on par with environmental hygiene, noise pollution and health services.[4]

6. In the year 1995-96, the Hong Kong Journalists Association received many complaints and enquiries related to ethical issues. Half of the written complaints received involved the obtaining of journalistic materials by means which were not straight forward. These complaints involved “human interest” stories. The complainants were unhappy with the use of “undercover” reporting techniques by journalists when they approached their targets.[5] The Association noted that the sharp increase in ethics complaints involving the use of means which are not straight forward is a “worrying trend”. The decline in the standard of coverage is also a matter of concern.

7. Instruments of electronic and data surveillance which are highly sophisticated and easy to use are easily accessible to the public at a low price. They may be used by employers, private detectives, reporters and those who have fallen victim to “voyeurism”. In order to increase circulation, some sections of the press put more emphasis on exposé journalism and fill their gossip columns with salacious details about people’s private lives. The plight of the university student who had been subjected to surreptitious surveillance for 6 months while staying at a university hostel has also illustrated that there is a pressing need to strengthen protection of individual privacy by law.

8. This document is published as a consultation paper together with the Consultation Paper on The Regulation of Media Intrusion.[6] All the conclusions and recommendations in this paper are those of the sub-committee. The Commission will reach its own conclusions and recommendations after it has considered the responses to this paper.

189

Chapter 1 - The right of privacy

______

International Covenant on Civil and Political Rights

1.1 A useful starting point for a discussion of civil liability for invasion of privacy is Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”). Article 17 provides:

“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. ”

1.2 The ICCPR imposes on the Hong Kong Special Administrative Region Government a positive duty to protect the right of privacy. The Government is under an obligation to adopt legislative and other measures to give effect to the prohibition against interference with the right to privacy as well as to the protection of this right.[7] In the opinion of the Human Rights Committee set up under the Covenant, the Government should protect every person against all arbitrary or unlawful interferences whether they emanate from Government authorities or from natural or legal persons. The “protection of the law” in paragraph 2 of the Article calls for measures in the area of private and administrative law as well as prohibitive norms under criminal law.[8]

United Nations report on privacy

1.3 Subsequent to the adoption of the ICCPR, the Secretary-General of the United Nations published in 1976 a report which included several specific points “for possible inclusion in draft international standards concerning respect for the privacy of the individual in the light of modern recording and other devices”.[9] The recommendations of the report which are relevant to this consultation paper are stated below:

“1. States shall adopt legislation, or bring up to date existing legislation, so as to provide protection for the privacy of the individual against invasions by modern technological devices; ...

3. States shall, in particular, take the following minimum steps: [(a) to (d) omitted]

(e) In addition to any possible criminal liability, civil liability should attach to either the use of an auditory or visual device in relation to a person, under circumstances which would entitle him to assume that he could not be seen or heard by unauthorized persons, or the unauthorized disclosure of information so gained;

(f) Civil remedies shall allow a person to apply for the cessation of acts thus violating his privacy and, where the act has been completed, to recover damages, including damages for non-pecuniary injury; ... .”

The Hong Kong Bill of Rights Ordinance

1.4 Article 17 of the ICCPR is replicated as Article 14 of the Hong Kong Bill of Rights.[10] However, section 7 of the Hong Kong Bill of Rights Ordinance provides that the Ordinance binds only (a) the Government and all public authorities, and (b) any person acting on behalf of the Government or a public authority. The Bill of Rights therefore has no direct effect on inter-citizen relationship and the scope of the right to privacy under Article 14 of the Bill of Rights is much narrower than that under Article 17 of the ICCPR. Nonetheless, since section 6 of the Ordinance provides that a court in an action for breach of the Ordinance “may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings”, it is arguable that an individual has a cause of action for breach of the right to privacy guaranteed under the Hong Kong Bill of Rights so long as it is the Government or a public authority which has committed or threatened to commit a breach. Such a construction would lead us to the conclusion that the Hong Kong Bill of Rights Ordinance has created a general right of privacy protecting private individuals from invasions of privacy by the Government and public authorities, as opposed to invasions by private persons.