Privacy Law & Policy Reporter --- "HKLRC's draft recommendations (1999)" [2001] PrivLawPRpr 60; (2001) 8(7) Privacy Law and Policy Reporter 135

HKLRC’s draft recommendations (1999)

(The following is an extract from the Hong Kong Law Reform Commission’s, consultation paper: Civil Liability for Invasion of Privacy Ch 13 ‘Summary of recommendations’. References to chapters are to the chapters in the paper).

1. We recommend that 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 for a statutory tort of invasion of privacy, provided that the intrusion is seriously offensive and objectionable to a reasonable person of ordinary sensibilities (ch 7).

2. We recommend that the Privacy Commissioner for Personal Data should give consideration to issuing a code of practice on all forms of surveillance in the workplace for the practical guidance of employers, employees and the general public (ch 7).

3. We recommend 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 (ch 8).

4. We recommend that for the purposes of the statutory tort of invasion of privacy based on public disclosure of private facts recommended above, matters concerning the private life of another should include information about an individual’s private communications, home life, personal or family relationships, private behaviour, health or personal financial affairs (ch 8).

5. We recommend that the Broadcasting Authority should give consideration to adopting in their Codes of Practice on Advertising Standards provisions governing the use of personal data in advertisements broadcast by the licensed television and sound broadcasters in Hong Kong (ch 9).

6. We recommend that the Privacy Commissioner for Personal Data should give consideration to issuing a code of practice on the use of personal data in advertising materials for the practical guidance of advertisers, advertising agents and the general public (ch 9).

7. We conclude that it is not necessary to create a statutory tort of invasion of privacy by appropriation of a person’s name or likeness (ch 9).

8. We conclude that it is not necessary to create a statutory tort of giving publicity to a matter concerning an individual that places him before the public in a false light (ch 10).

9. We recommend that it should be a defence to an action for invasion of privacy if the plaintiff expressly or by implication authorized or consented to the act, conduct or publication constituting the invasion (ch 11).

10. We recommend 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 authorized or consented to by one of the parties to that communication (ch 11).

11. We recommend that for the purposes of the tort of invasion of privacy by intrusion, the surreptitious use of a device to collect visual data relating to an individual (‘the data subject’) by a person who is otherwise lawfully present on the premises in which the data are located (‘the data collector’) in circumstances where the data are visible to the naked eye of the data collector but are not open to public view should be deemed to be an intrusion upon the seclusion of the data subject or an intrusion into the private affairs or concerns of that data subject (ch 11).

12. We recommend that it should be a defence to an action for invasion of privacy if the act, conduct or publication constituting the invasion was authorized by or under any enactment or rule of law (ch 11).

13. We recommend that it should be a defence to an action for invasion of privacy if the act, conduct or publication constituting the invasion was reasonably necessary for the protection of the person or property of the defendant or another (ch 11).

14. We recommend that it should be a defence to an action for invasion of privacy based on public disclosure of private facts if the public disclosure would have been privileged in accordance with the rules of law relating to defamation (ch 11).

15. We recommend that it should be a defence to an action for invasion of privacy based on public disclosure of private facts if the matter publicised could be found in a public record which was readily accessible to the public, or otherwise had come into the public domain through no fault of the defendant (ch 11).

16. We recommend that consideration should be given to extending the statutory prohibition on identifying victims of rape, non-consensual buggery and indecent assault under section 156 of the Crimes Ordinance (Cap 200) to cover victims of other sexual offences (ch 11).

17. We recommend that consideration should be given to providing the court in criminal proceedings with a statutory power to make an order prohibiting the publication of any matter which is likely to lead to the identification of the person against whom an offence is alleged to have been committed until the conclusion of the proceedings or until such time as may be ordered by the court, provided that the making of such an order or any extension thereof is in the interest of the private life of that person and would not prejudice the interests of justice (ch 11).

18. We recommend 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 (ch 11).

19. Without limiting the generality of Recommendation 18 above, we recommend that 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 (ch 11).

20. We recommend that both the tort of invasion of privacy by intrusion upon another’s seclusion or solitude and the tort of invasion of privacy based on public disclosure of private facts should be actionable per se without any proof of damage (ch 12).

21. We recommend that in an action for invasion of privacy, the court may:

(a) award damages;

(b) grant an injunction if it shall appear just and convenient;

(c) order the defendant to account to the plaintiff for any profits which he has made by reason or in consequence of the invasion;

(d) order the defendant to destroy or deliver up to the plaintiff all articles or documents containing information about the plaintiff which have come into the possession of the defendant by reason or in consequence of the invasion; or

(e) order the defendant to publish an apology which is of equal prominence to the original publication on which the action is based (ch 12).

22. We recommend that damages in an action for invasion of privacy should include compensation for the mental distress, embarrassment and humiliation suffered by the plaintiff (ch 12).

23. We recommend that in awarding damages the court should have regard to all the circumstances of the case, including:

(a) the effect of the invasion on the health, welfare, social, business or financial position of the plaintiff or his family;

(b) any distress, annoyance or embarrassment suffered by the plaintiff or his family;

(c) the conduct of the plaintiff and the defendant both before and after the invasion, including the adequacy, publicity for and manner of any apology or offer of amends made by the defendant (ch 12).

24. We recommend that no action for invasion of privacy should be brought after expiration of three years from the time of the occurrence of the act, conduct or publication constituting an invasion of privacy, subject to the normal rules applicable to plaintiffs who are under disability (ch 12).

25. We recommend that actions for invasion of privacy should be limited to living individuals and that the person to whom any right of action should accrue is the individual whose right of privacy is threatened or has been infringed (ch 12).

26. We recommend that on the death of the plaintiff or defendant in an action for invasion of privacy, the cause of action should survive for the benefit of the plaintiff’s estate, or, as the case may be, against the defendant’s estate (ch 12).

27. We recommend that there be no exception to the general rule that evidence obtained through an actionable invasion of privacy is admissible in civil proceedings (ch 12).

28. We recommend that the statutory torts of invasion of privacy should be in addition to other right of action or other remedy under existing law.