Civil Liability for Invasion of Privacy

Comments of the Hong Kong Bar on the
Law Reform Commission

Consultation Paper on "Civil Liability For Invasion of Privacy"

 

Constitutional Framework

1. The Bar notes that Article 17 of the ICCPR, which
has acquired a constitutional status in Hong Kong by virtue of Article
39 of the Basic Law, imposes on the HKSAR a positive duty to protect
the right of privacy. The Bar also notes that Article 14 of the Hong
Kong Bill of Rights Ordinance replicates Article 17 of the ICCPR.

2. The Bar agrees that the protection of privacy is
in the interests of both the individual citizen and society. It is
also in the public interest to protect the interests of individuals
against injury to their emotions and mental suffering.

3. The Bar also acknowledges that it is difficult,
if not impossible, to define the parameters of the right of privacy
in precise terms, but this difficulty should not preclude the creation
of a new statutory tort to tackle with infringement of specifically
identified privacy interest.

The Right to Privacy and Freedom of Expression

4. However, we disagree with the conclusion of the
Law Reform Commission that providing better protection to privacy
would not impinge on freedom of expression. The Bar recognises the
competing interests of freedom of expression and the right to privacy.
We are of the view that providing greater protection of individual
privacy will necessarily restrict the extent of freedom of expression
in Hong Kong. Accordingly, a balance has to be struck between protecting
individual privacy and protecting freedom of expression.

Protection of Privacy at Common Law

5. The Bar notes that the common law does not recognise
a general right of privacy. A person whose privacy has been intruded
upon has to show that the conduct of the intruder amounts to the commission
of an established tort, such as trespass to land, private nuisance,
breach of confidence and defamation, for which the victim has a cause
of action. In other words, a person’s interest in privacy will
be protected if and only if another right which is recognised by the
courts has been violated. The court has also reckoned that the development
in this field is now too advance to leave it to be developed by the
common law.

Statutory Torts

6. In these circumstances, we agree that a statutory
tort would have to be created by the legislature to protect the right
of privacy.

7. We appreciate that it is difficult to define the
concept of privacy. We also acknowledges that a statutory tort of
privacy defined in general terms would introduce an element of uncertainty
into the law and provide insufficient guidance to individual citizens,
their legal advisers and the courts.

8. The Bar therefore agrees that the creation of a
general tort of invasion of privacy is undesirable. Indeed, no jurisdiction
has been able to offer a satisfactory definition of privacy in the
statute book.

9. The Bar supports the idea to establish, by statute,
one or more specific torts of invasion of privacy which clearly defines
the act or conduct which unjustifiably frustrates the reasonable expectation
of privacy of an individual.

Intrusion Tort

10. The Bar supports Recommendation 1 that a new intrusion
tort should be created, i.e. any person who intentionally or recklessly
intrudes, physically or otherwise, upon the solitude or seclusion
of another or into his private affairs or concerns, should be liable
under a statutory tort of invasion of privacy, provided that the intrusion
is seriously offensive and objectionable to a reasonable person of
ordinary sensibilities.

11. The new statutory tort requires the proof of the
following elements: -

(a) either an intrusion upon the solitude or seclusion
of another or an intrusion into another’s private affairs or
concerns;

(b) the intrusion may be physical or non-physical;

(c) the intrusion must be done intentionally or recklessly;
and

(d) the intrusion must be seriously offensive and
objectionable to a reasonable person of ordinary sensibilities.

Disclosure Tort

12. We note that everyone has a right to a private
life and the publication of facts about an individual’s private
life should not be allowed unless it can be justified in the public
interest. An individual should have control over what, when and how
information about himself should be disclosed to another. Civil remedies
for public disclosure, as against the case of limited disclosure,
should be provided for by law.

13. We support that a new tort should be created by
statute to protect individual from unwarranted publicity which is
seriously offensive and objectionable to a reasonable person.

14. In the premises, we agree with Recommendations
3 and 4. We support that a disclosure tort should be created so that
any person who gives publicity to a matter concerning the private
life of another should be liable for a 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.

15. We also support that for the purpose of this disclosure
tort, matters concerning the private life of another should include
information about an individual’s private communication, home
life, personal or family relationships, private behaviour, health
or personal financial affairs.

Appropriation Tort

16. We are not convinced that there is no need for
the creation of a statutory tort of invasion of privacy by appropriation
of a person’s name or likeness. We are of the view that there
must be a right of a person not to be the object of publicity for
another’s ends without prior consent, be the ends economic or
political in nature or otherwise. The survey carried out by the Law
Reform Commission shows that there is an area protected by privacy
law in may jurisdictions. Indeed, the Law Reform Commission accepted
in paragraph 9.23 of the Consultation Paper that "unauthorised
use of a person’s name for commercial gain is immoral and should
be condemned".

17. While we note that the existing contract law or
advertising law can provide some protection in this aspect, for instance,
through the regulatory regimes under the Television Ordinance and
the Broadcasting Authority Ordinance, these regulatory regimes are
directed at the licensees and do not provide any remedy to the victim
concerned.

18. We think that it is a wrong approach to acknowledge
the existence of the problem and then not to deal with it. In a recent
case, the court held that the existing law did not provide any remedy
for misappropriation of an artist’s name or likeness.

Defence

19. We agree with the defences recommended in Recommendations
9, 11, 12, 13, 14 and 15 that it should be a defence to an action
for invasion of privacy.

20. However, the Bar is concerned about Recommendations
10, 18 and 19.

Interception of communications by a third party
with the consent of a party to the communication

21. Recommendation 10 recommends that it should be
a defence to an action for invasion of privacy by intrusion upon another’s
solitude or seclusion if the act or conduct constituting the invasion
was in the nature of an interception of a communication to which the
defendant was not a party and such act or conduct was authorised or
consented to by one of the parties to that communication.

22. The Bar supports creation of this defence provided
that the interception of communication is permissible by law and is
not in breach of confidence.

Matters of Legitimate Concern of the Public

23. Recommendation 18 recommends that it should
be a defence to an action for invasion of privacy based on public
disclosure of private facts if the matter publicised was a matter
of legitimate concern to the public.

 

24. Recommendation 19 recommends that, without
limiting the generality of Recommendation 18 above, information or
facts which relate to any of the following matters should be deemed
to be a matter of legitimate concern to the public for the purposes
of the statutory tort of invasion of privacy based on public disclosure
of private facts:

(a) the prevention, detection or investigation of
crime;

(b) the prevention or preclusion of unlawful or seriously
improper conduct, public dishonesty or serious malpractice;

(c) the ability of a person to discharge his public
or professional duties;

(d) the fitness of a person for any public office
or profession held or carried on by him, or which he seeks to hold
or carry on;

(e) the protection of public health or safety; and

(f) the protection of national security and security
in respect of the Hong Kong Special Administrative Region.

25. We support the general defence of "a matter
of legitimate concern to the public". However, we would prefer
a general defence of "public interest" than "a matter
of legitimate concern to the public", as this phrase is too vague
and would create uncertainty, whereas "public interest"
is a well understood and generally accepted concept in law.

26. Not all matters of public interest will automatically
justify a public disclosure of public facts. The court may still have
to balance the conflicting claims. Accordingly, we recommend a reformulation
of the defence so that it will be a defence to an action for invasion
of privacy based on public disclosure of private facts if the disclosure
is a necessary and proportionate response for the protection of public
interest.

27. We support the approach adopted in Recommendation
19 by setting out what could constitute matters of public interest.
However, the existing formulation, namely by creating a mandatory
deeming provision, will take away the discretion of the court to decide
on a case by case basis what should constitute public interest. Not
all information relating to the prevention of crime is necessary matter
of public interest. Thus, we suggest that Recommendation 19 should
create a presumption rather than a mandatory deeming provision
of what constitutes "public interest".

28. We are of the further view that the existing definition
of "public interest" is too broadly defined and may therefore
be subject to abuse, especially by the law enforcement agencies. For
example, the current formulation of Recommendation 19 may mean that
the Police can release any information or facts which are collected
during the investigation of a crime. It may also mean that the press
can disclose the fact that a person is suffering from AIDS on the
ground that the disclosure will warn other person to avoid contact
with him so that public health can be protected, or that the Police
or the press can disclose the private life of a person wanted for
an offence in the name of public safety. More worrying, it may even
mean that the government can publicly disclose any information or
facts about a person who is alleged by the Government as a spy in
the name of "national security and security of the HKSAR".

29. Accordingly, we are inclined to confine the definition
of "public interest" to a few well recognised instances,
without at the same time limiting the generality of the general defence
of public interest, namely

(a) the prevention, detection of crime or investigation
of crime

(b) the ability and fitness of a person to discharge
his public office; and

(c) the protection of public health or safety.

These are matters which shall prima facie constitute
"matters of public interest".

Enforcing the right to privacy

30. As far as enforcing the right to privacy is concerned,
the Bar supports Recommendations 21 to 28.

Dated 25th February 2000

Hong Kong Bar Association