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Report, Civil Liability for Invasion of Privacy THE LAW REFORM COMMISSION OF HONG KONG REPORT CIVIL LIABILITY FOR INVASION OF PRIVACY This report can be found on the Internet at: <http://www.hkreform.gov.hk> December 2004 The Law Reform Commission was established by the Executive Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Secretary for Justice or the Chief Justice. The members of the Commission at present are: The Hon Ms Elsie Leung Oi Sie, GBM, JP, Secretary for Justice (Chairman) The Hon Mr Justice Andrew Li, Chief Justice Mr Tony Yen, SBS, JP, Law Draftsman Dr John Bacon-Shone The Hon Mr Justice Bokhary, PJ Professor Albert Chen, JP Mr Anthony Chow, SBS, JP Professor Y K Fan, JP Mr Alan Hoo, SBS, SC, JP The Hon Mrs Sophie Leung, SBS, JP Professor Mike McConville Mr Benjamin Yu, SC The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at: 20/F Harcourt House 39 Gloucester Road Wanchai Hong Kong Telephone: 2528 0472 Fax: 2865 2902 E-mail: [email protected] Website: http://www.hkreform.gov.hk THE LAW REFORM COMMISSION OF HONG KONG REPORT CIVIL LIABILITY FOR INVASION OF PRIVACY _____________________________________ CONTENTS Chapter Page Preface 1 1. The right of privacy 6 The notion of “privacy” 6 Psychological aspects of privacy 14 Functions of privacy 16 2. Protection of privacy under existing laws 19 Basic Law of the Hong Kong SAR 19 Common law 19 Trespass to land 20 Nuisance 21 Breach of confidence 23 Infringement of copyright 27 Breach of contract 27 Intentional infliction of emotional distress causing physical harm 27 Trespass to the person 28 Defamation 29 Malicious falsehood 29 Kaye v Robertson 30 Hong Kong Bill of Rights Ordinance 30 Personal Data (Privacy) Ordinance 31 The Data Protection Principles 31 Rights of redress 35 Protection of freedom of the press 36 Limitations of the PD(P)O 37 Concluding remarks 43 i 3. Freedom of expression and the right to privacy 46 Right of privacy and free speech values 46 Freedom of the press 49 International Covenant on Civil and Political Rights 52 American Convention on Human Rights 55 European Convention on Human Rights 56 4. The law of privacy in other jurisdictions 61 Australia 61 Austria 63 Brazil 64 Canada 64 Mainland China 68 Denmark 69 England and Wales 69 Estonia 73 France 73 Germany 75 Hungary 77 India 77 Ireland 78 Italy 79 Lithuania 80 Macao, China 80 The Netherlands 81 New Zealand 81 Norway 84 The Philippines 84 Russia 84 South Africa 85 South Korea 86 Spain 86 Taiwan, China 86 United States 87 Other jurisdictions 89 Conclusion 90 5. Providing civil remedies to victims of unwarranted invasion of privacy 91 Need for civil protection against invasion of privacy 91 Judicial development or legislation? 97 Legislative approach to the creation of a tort of invasion of privacy 105 ii 6. Intrusion upon the solitude or seclusion of another 108 Need for protection from intrusion upon privacy 108 Reasonable expectation of privacy 117 Intrusion upon the “solitude” or “seclusion” of another 119 Physical intrusion 124 Non-physical intrusion 125 Aural surveillance 126 Visual surveillance 128 Intrusion into the private affairs or concerns of another 129 Unauthorised filming by a lawful visitor 131 Standard of liability 134 Offensiveness of an intrusion 134 Conclusion 136 Comments made by respondents 137 Privacy in the workplace 140 Defences to an action for intrusion 141 Consent 141 One-party consent 142 Lawful authority 148 Legitimate interests justifying an intrusion 149 7. Unwarranted publicity given to an individual’s private life 152 The need to provide a civil remedy for unwarranted publicity 152 Matters concerning an individual’s private life 156 Publicity vs disclosure to a selected few 161 Offensiveness of the publicity 163 Defences to an action for unwarranted publicity 166 Consent 166 Lawful authority 167 Privileged disclosure 167 Publicity in the public interest 168 Principle of proportionality 178 Legitimate aims of giving publicity to an individual’s private life 180 Facts concerning an individual’s private life that are available in the public domain 183 Facts available in public records 184 Facts concerning an individual’s private life in public places 190 Facts which have previously been disclosed to others 196 Concluding remarks 200 Relationship between intrusion and unwarranted publicity 202 8. Privacy of ex-offenders 205 iii 9. Anonymity of victims of crime 216 Anonymity of victims of sexual offences 216 Anonymity of victims of non-sexual crime 219 Judicial Proceedings (Regulation of Reports) Ordinance 228 10. Appropriation of a person’s name or likeness 230 Is appropriation of a person’s identity a privacy concern? 230 Use of personal data in advertisements 243 11. Publicity placing someone in a false light and factual inaccuracies reported in the press 247 Existing protection 247 Overseas jurisprudence 251 Conclusion 264 12. Enforcing the right to privacy 266 Proof of damage 266 Damages 267 Injunction 267 Apology 268 Account of profits 269 Delivery up 269 Form of trial 271 Limitation period 274 Parties to a privacy action 275 13. Summary of recommendations 277 Annex List of those who responded to the Privacy Sub-committee’s Consultation Paper on Civil Liability for Invasion of Privacy 282 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”. 1 The Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the sub-committee are as follows: Dr John Bacon-Shone (Chairman) Director, Social Sciences Research Centre, The University of Hong Kong Mr Don Brech Principal Consultant, Records Management International Limited (Former Director, Government Records Service) Professor Johannes M M Chan (from November 2001) Honorary Senior Counsel, Professor (Reader) and Dean, Faculty of Law, The University of Hong Kong Mrs Patricia Chu, BBS, JP (till April 2001) Former Deputy Director of Social Welfare (Services), Social Welfare Department Mr A F M Conway Chairman, Great River Corporation Limited Mr Edwin Lau Chairman, Hooray Holdings Limited (Former Assistant General Manager & Head of Strategic Implementation Asia Pacific, HSBC) Mr Robin McLeish (from February 2000) Barrister-at-law (Former Deputy Privacy Commissioner for Personal Data) 1 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.” 1 Mr Barry Mortimer, GBS Non-Permanent Judge, Court of Final Appeal (Former Vice-President, Court of Appeal) (Chairman of sub-committee from 1990 till August 1999) Mr James O’Neil Deputy Solicitor General (Constitutional), Department of Justice Mrs Kathy NG Ma Kam-han (from April 2001 to April 2003) Assistant Director (Elderly), Social Welfare Department Mr Peter So Lai-yin (till November 2001) Former General Manager, Hong Kong Note Printing Limited Professor Raymond Wacks Emeritus Professor of Law and Legal Theory, The University of Hong Kong (Chairman of sub-committee from August 1999 to December 2001) Mr Wong Kwok-wah Editor, Asia Times-On-Line (Chinese version) 2. The secretary of the Sub-committee is Mr Godfrey K F Kan, Senior Government Counsel. 3. The first task of the Privacy Sub-committee was to study the collection, recording, storage and disclosure of personal data. This resulted in the Commission report on Reform of the Law Relating to the Protection of Personal Data published in August 1994. Thereafter, the Sub-committee issued a consultation paper on the regulation of surveillance and the interception of communications. This was followed by the Commission report on Privacy: Regulating the Interception of Communications published in December 1996. In relation to the regulation of surveillance, the Sub-committee decided that the civil aspects of invasion of privacy should be looked into first before it finalised its recommendations on surveillance. The Sub-committee therefore published a consultation paper on Civil Liability for Invasion of Privacy in August 1999. That consultation paper covered the civil aspects of surveillance as well as other forms of invasion of privacy, and was published together with the consultation paper on The Regulation of Media Intrusion. The criminal aspects of surveillance will be dealt with in the Commission report on criminal sanctions for unlawful surveillance to be issued later. 4. The Privacy Sub-committee recommended in the Consultation Paper on Civil Liability for Invasion of Privacy (“the Consultation Paper”) that a person should be liable in tort if he, without justification, (a) intrudes upon the solitude or seclusion of another or into his private affairs, or (b) gives publicity to a matter concerning the private life of another. The Sub-committee received 21 submissions on the Consultation Paper. The list of respondents is at the Annex.
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