The Regulation of Media Intrusion (Ii)

THE LAW REFORM COMMISSION

OF HONG KONG

SUB-COMMITTEE ON PRIVACY

CONSULTATION PAPER ON

THE REGULATION OF MEDIA INTRUSION

This consultation paper can be found on the Internet at: 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

THE REGULATION OF MEDIA INTRUSION

CONTENTS

ChapterPage

Preface1

Background1

Social responsibility of the news media2

Structure of this consultation paper6

1.The right to privacy and freedom of expression7

Freedom of expression7

Basic Law of the Hong Kong SAR7

International Covenant on Civil and Political Rights8

European Convention on Human Rights10

First Amendment to the American Constitution12

Reconciling privacy with freedom of speech14

Ascertainment and publication of truth15

Individual self-development and fulfilment16

Participation in a democracy17

Safety valve function18

Freedom of the press18

General18

Basic Law of the HKSAR20

Application of general laws to the news media21

Freedom to seek, impart and receive information24

2.Media intrusion in Hong Kong27

Victims of crime and tragedy28

Persons in grief or distress33

Recording in hospitals37

Surviving victims and relatives40

Funerals43

Identity of parties and witnesses in court proceedings44

Past criminal records47

Juveniles in court proceedings48

Media scrums51

Harassment and following51

Doorstepping53

Gathering information by clandestine methods55

Surreptitious recording in public places56

Extra-territorial surveillance57

Use of deceptive means to gather information57

Surreptitious recording in private premises60

Recording of oral or telephone conversations with the

consent of one party61

Interception of telephone conversations61

Public figures and their family members62

Children65

Accuracy68

Dramatised reconstruction69

Surreptitious recording for entertainment purposes70

Other cases70

Conclusion70

3.Press self-regulation in other jurisdictions72

Australia72

Canada74

The Atlantic Provinces74

British Columbia74

Manitoba74

Ontario75

Germany75

New Zealand76

Peru76

Sweden77

Taiwan78

United Kingdom79

Press Complaints Commission79

Broadcasting Standards Commission85

United States86

4.Media self-regulation in Hong Kong88

Introduction88

Professional associations88

News Council93

Self-restraint by individual news organisations95

News ombudsman / Readers’ representative96

Conclusion98

5.Regulation under the Personal Data (Privacy) Ordinance101

Personal Data (Privacy) Ordinance101

Code of practice under the Personal Data (Privacy) Ordinance102

Need for further measures to regulate media intrusion103

Data Protection Principle 1104

Data Protection Principle 3105

Exemptions for the news media under section 61(1)107

Privacy torts proposed in the Civil Liability Paper108

Conclusion110

6.Regulation under the Broadcasting Authority Ordinance111

7.Further measures to regulate press intrusion116

Code of ethics for the news media116

Press code on privacy matters117

Independent body to regulate press intrusion119

Pros and cons of establishing a mechanism by law

to regulate press intrusion122

1. Independent body created by law to regulate press intrusion130

Proposals and precedents in other jurisdictions130

Press ombudsman130

Press Complaints Tribunal131

Press Council133

Structure of the Press Council for the Protection of Privacy

to be created by law135

Guiding principles135

Jurisdiction136

Appointments Commission139

Members of the PCPP141

Mode of appointment141

Proportion of press members and public members141

Press Members142

Public Members144

Eligibility for appointment as a member of the PCPP145

Term of office146

Remuneration146

Removal from office146

Temporary appointment146

Meetings147

Declaration of interest147

Code of conduct on privacy-related matters148

Complaints procedure148

Waiver of legal rights152

Powers of the PCPP153

Compensation154

Financial penalty154

Enforcement of adjudications157

Right of appeal158

Education159

Reports160

Indemnity160

Funding161

Administrative support162

Conclusion163

9.Summary of recommendations164

Annex 1 - Code of Ethics of the Hong Kong Journalists Association172

Annex 2 - Taiwan’s Code of Ethics for the Press173

Annex 3 - Code of Practice ratified by the Press Complaints175

Commission in the UK

1

Preface

______

Background

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 JusticeVice-President

Mortimer, GBS (Chairman)Court of Appeal

Dr John Bacon-ShoneDirector, Social Sciences Research Centre

The University of Hong Kong

Mr Don BrechPrincipal Consultant

Records Management International Limited

Mrs Patricia Chu, JPDeputy Director of Social Welfare (Services)

Social Welfare Department

Mr A F M ConwayChairman

Great River Corporation Limited

Mr Edwin LauAssistant General Manager Head of Personal Banking

The Hongkong and Shanghai Banking Corporation Limited

Mr James O’NeilDeputy Solicitor General (Constitutional)

Department of Justice

Mr Peter So Lai-yinFormer General Manager

Hong Kong Note Printing Limited

Prof Raymond WacksProfessor of Law and Legal Theory

The University of Hong Kong

Mr Wong Kwok-wahChinese Language Editor

Asia 2000 Limited

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

4.The sub-committee has examined the law in relation to the following subjects: (a) the protection of personal data; (b) surveillance; (c) the interception of communications; (d) stalking; and (e) civil liability for invasion of privacy. The purpose of this consultation paper is to examine whether legislative or other measures are needed to provide protection against undue interference with the privacy of individuals by the news media in addition to those proposed in the consultation papers on Stalking, Civil Liability for Invasion of Privacy, Surveillance and the Interception of Communications. We examine the problem of media intrusion because the media are most likely, by the nature of their activities, to infringe on individuals' privacy.

Social Responsibility of the news Media

5.The concept of media social responsibility was first given prominence through the work of the Hutchins Commission on Freedom of the Press in the United States.[1] The World Associationof Press Councils recognises that the free press must be accountable to the public, though not to government. It declares that “it is implicit and inherent in the institution of a free press that the press exercise its powers and duties in a responsible manner”.[2]

6.In a comprehensive survey of Hong Kong journalists conducted in 1990,[3] the overwhelming majority of journalists responded that the following values were important to the profession: report objectively (95%); inform public promptly (95%); analyse and interpret complex issue (92%); be a watchdog of government (88%); and speak for the public (80%). About 65% of the journalists considered it important “to educate the public” and “to raise the cultural level of the masses”. Only about a third thought it important for news organisations “to meet the popular taste” and “to provide entertainment”. The “social significance of event” was the most important factor affecting journalists’ news judgment.

7.However, some media organisations have given priority to their economic needs. A public opinion survey conducted by the HKU Social Sciences Research Centre in March 1999 found that as many as 41% of the respondents considered that the news media were “irresponsible” in their reporting, up from 24% in September 1997; and that only 17% of the respondents considered that the news media were “responsible”, down from 41% in September 1997.[4] Another survey conducted by the Department of Journalism and Communication at the Chinese University reveals that the problems associated with newspapers are ethical rather than political in nature, and that market competition is the reason which leads to the lack of media ethics.[5] The survey has also registered a decline in the credibility of all newspapers in Hong Kong.

8.All Hong Kong media organisations, other than Radio Television Hong Kong, which is a government department, are businesses running for profit. They face competition which was unknown in the past. New agencies, such as subscription television, satellite television, video-on-demand programme services and the various services offered on the Internet, are taking business away from local publishers and broadcasters. In the face of keen competition, the overriding concern of media proprietors will always be to maintain or increase market share. Commercial pressure may therefore prevail over professional and ethical standards. Some sections of the news media find it difficult not to use material which other organisations may wish to include in their newspapers or programmes. The fear that a competitor gets a scoop the next day put some editors and journalists under great pressure to intrude into the private lives of individuals even though no vital public interest is at stake. In order to halt the decrease in the size of readers or to increase circulation, some sections of the press provide more coverage for sensational stories about people’s private lives. The reason being the more personal the information, the more readers a newspaper will attract. But sensationalism poses a threat to media ethics, especially in the means by which material is obtained and the manner in which a story is presented.

9.The domination of the press by Apple Daily and Oriental Daily News has also been a growing concern. Before The Sun started publication in March 1999, Apple Daily and Oriental Daily News accounted for about 70% of total newspaper readership.[6] The lapse in ethical standards in one of the mainstream newspapers will not only undermine the credibility of that newspaper, but also the credibility of the entire news media. The notion of social responsibility is therefore particularly relevant to the press operating in such an environment. As observed by Joseph Pulitzer:[7]

“Nothing less than the highest ideals, the most scrupulous anxiety to do right, the most accurate knowledge of the problems it has to meet, and a sincere sense of moral responsibility will save journalism from a subservience to business interests, seeking selfish ends, antagonistic to public welfare.”

10.An editorial of the Hong Kong Standard suggests that the public should be vigilant over media intrusion:

“Unfortunately for those who fall victim to such media harassment the line between the public’s right to know and the individual’s right to privacy can sometimes be hard to define. More often than not it falls to a handful of media people to draw this line. Just as often their decisions are dictated by the market. And, especially in a place like Hong Kong, the market is all that matters. Those who argue that this is neither fair nor moral may have a point. But unless the community speaks out, the market is what matters.”[8]

11.The Statement of Principles adopted by the American Society of Newspaper Editors provides, inter alia, that:[9]

“The First Amendment, protecting freedom of expression from abridgement by any law, guarantees to the people through their press a constitutional right, and thereby places on newspaper people a particular responsibility. …The primary purpose of gathering and distributing news and opinion is to serve the general welfare by informing the people and enabling them to make judgments on the issues of the time. Newspapermen and women who abuse the power of their professional role for selfish motives or unworthy purposes are faithless to that public trust.”

12.The MacBride Final Report commissioned by the United Nations Educational, Scientific and Cultural Organisation stated that:

“[t]he concept of freedom with responsibility necessarily includes a concern for professional ethics ... . Such values as truthfulness, accuracy and respect for human rights are not universally applied at present. Higher professional standards and responsibility cannot be imposed by decree nor do they depend solely on the goodwill of individual journalists, who are employed by institutions which can improve or handicap their professional performance. ... As in other professions, journalists and media organisations serve the public directly and the public, in turn, is entitled to hold them accountable for their actions. Among the mechanisms devised up to now in various countries for assuring accountability, the Commission sees merit in press or media councils, the institution of the press ombudsman and peer group criticism of the sort practised by journalism reviews in several countries. ... Codes of professional ethics exist in all parts of the world, adopted voluntarily in many countries by professional groups. The adoption of codes of ethics at national and, in some cases, at the regional level is desirable, provided that such codes are prepared and adopted by the profession itself - without governmental interference.”[10]

13.We believe that the following views of Mr Tung Chee Hwa, the Chief Executive of the Hong Kong SAR, have the support of the general public:[11]

“The print and electronic media should not allow themselves to be driven all the way by the markets. They should not take no notice of the impact they would make on the community for the sake of good circulation and profit making. The press and other forms of media are some sort of public instruments, which work influence on the public and should therefore take up their social responsibility as well. The principle of truthfulness and impartiality should be upheld in news reporting. The practice of the media should be monitored by the public.”

14.We maintain that social responsibility can coexist with press freedom and autonomy for news organisations. Freedom and responsibility are not mutually exclusive.

Structure of this consultation paper

15.We shall examine in Chapter 1 the relationship between the right to privacy and freedom of expression. The extent to which media intrusion is a problem in Hong Kong is explored in Chapter 2. Chapter 3 gives an overview of the developments in Australia, Canada, Germany, New Zealand, Peru, Sweden, Taiwan, the United Kingdom and the United States. The role played by the professional bodies in Hong Kong is assessed in Chapter 4. Whether self-regulation is the answer to the problems arising from media intrusion will also be examined in that chapter. The feasibility of employing the existing frameworks under the Personal Data (Privacy) Ordinance and the Broadcasting Authority Ordinance to protect individuals from media intrusion will be discussed in Chapters 5 and 6 respectively. The desirability of creating an independent body by law to regulate press intrusion will be explored in Chapter 7. The composition, functions and powers of such an independent body will be examined in Chapter 8.

16.Unless the context otherwise requires, the term “journalists” in this Consultation Paper includes reporters, press photographers, columnists, news presenters, news executives and editors.

1

Chapter 1 - The right to privacy and

freedom of expression

______

Freedom of expression

Basic Law of the Hong Kong SAR

1.1Prior to the handover in July 1997, the rights and freedoms protected by the International Covenant on Civil and Political Rights were entrenched by the Hong Kong Letters Patent.[12] Since July 1997, the Basic Law of the Hong Kong SAR has replaced the Letters Patent and the Royal Instructions as the constitution of Hong Kong. Article 39 of the Basic Law provides:

“The provisions of the International Covenant on Civil and Political Rights ... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedom enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

1.2The Preamble of the Basic Law states that the Basic Law was enacted “in order to ensure the implementation of the basic policies of the PRC regarding Hong Kong.” These “basic policies” were elaborated by the PRC Government in Annex I to the Sino-British Joint Declaration on the Question of Hong Kong, including the policy that the Hong Kong Government “shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of the person, of speech, [and] of the press”.[13]

1.3Article 27 provides that Hong Kong residents are entitled to enjoy “freedom of speech, of the press and of publications”. This Article merely identifies a particular group of rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. Article 39 permits restrictions on the rights to free speech and freedom of the press guaranteed by Chapter III of the Basic Law, provided that these restrictions are provided by law and are compatible with the international covenants on human rights.[14]

International Covenant on Civil and Political Rights

1.4Freedom of expression is one of the basic human rights protected under the International Covenant on Civil and Political Rights (ICCPR). Paragraphs 2 and 3 of Article 19 of the Covenant provide:

“2.Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.