Photography, Privacy

1
Photography, Privacy the Law - Relevance of the
LRC proposals

• Prof John Bacon-Shone
• Director, Social Sciences Research Centre, HKU
• Former Chairman, LRC Subcommittee on Privacy
• Convenor, Privacy Hong Kong

2
LRC privacy remit (1)

• The Law Reform Commission in 1989 set up a
  sub-committee to examine existing HK laws
  affecting privacy and to report 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

3
LRC privacy remit (2)

• (a) acquisition, collecting, recording and
  storage of information and opinions pertaining to
  individuals by any persons or bodies, including
  Govt. depts, public bodies, persons or
  corporations
• (b) disclosure or communication of these
  information or opinions to any person or body in
  or out of HK
• (c) intrusion (by electronic or other means) into
  private premises
• (d) interception of communications, whether oral
  or recorded

4
Reports

• Protection of personal data (Personal Data
  Protection Ordinance) (1993 consultation, 1994
  report, 1996 law)
• Covert Surveillance and Interception of
  Communication (1996 consultation, 1996 report on
  interception, 2006 report on surveillance, 2006
  law on authorisation for both)
• Stalking (1998 consultation, 2000 report)
• Civil Liability for invasion of privacy (1999
  consultation, 2004 report)
• Media Intrusion (1999 consultation, 2004 report)
• Can download from http//www.hkreform.gov.hk/en/p
  ublications/subject.htm

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PDPO and the media

• PDPO protects personal data held in retrievable,
  identifiable form by giving rights to alive data
  subjects and setting up agency (PCO) to help.
• http//www.pco.org.hk/english/ordinance/ordglance.
  html
• PDPO report - chapter specifically about the
  media
• Key exemptions recommended to accommodate free
  speech rights
• Exempt from Use Limitation for data where
  publication is in the public interest
• PCO cannot not conduct on-site investigations
• Exempt from access and correction for unpublished
  data held solely for journalistic purposes.

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PDPO and the Media (2)

• Collection limitation, data quality still apply
• For collection, we promised to revisit the issue
  of surreptitous collection
• For data quality, we recommended that the media
  be required to take all practicable steps to
  disseminate a correction where inaccurate data
  has been published (nothing relevant in actual
  ordinance)

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Interception the Media

• History intervened - James Tos bill was passed
  but not put into effect
• Finally the government bill in 2006, which
  implements authorisation process judge for more
  intrusive, executive for less intrusive, but does
  not address interception by anyone else, arguably
  because it is already illegal without consent. No
  impact on covert surveillance by parties other
  than law enforcement and public officers
• Chapter on media no restriction on publication,
  just on interception, so arguably no new issue
  for the press

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Stalking Media (1)

• Course of conduct which he ought to know amounts
  to harassment is guilty of criminal offence
• Harassment serious enough to cause alarm or
  distress
• Ought to know if a reasonable person in
  possession of some information would think so
• No higher level offence for fear of violence as
  we believe existing law would be sufficient

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Stalking Media (2)

• Defences of lawful authority, prevention and
  detection of crime, reasonable in the
  circumstances (taking into account privacy,
  freedom of expression and peaceful assembly)
• Also a civil remedy allowing damages
• Decline to give blanket media exemption (what is
  a journalist?) given reasonable in the
  circumstances explicitly mentioning freedom of
  expression
• HAB still considering way forward (bureaucratic
  speak for doing nothing, despite people being
  killed and forced to leave HK, where is LegCo?)

10
Civil Liability Media

• 2 torts
• Intentional or reckless intrusion upon the
  solitude or seclusion where that person has a
  reasonable expectation of privacy, and the
  intrusion is seriously offensive or objectionable
  to a reasonable person
• Defence of lawful authority, prevention,
  preclusion or redress of unlawful or seriously
  improper conduct
• Arguably, this defence should be sufficient
  to protect good investigative journalism and
  photography
• Still applies in public places, but much harder
  to argue that the person has a reasonable
  expectation of privacy there or that the
  intrusion is seriously offensive or objectionable
  to a reasonable person

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Civil Liability Media (2)

• Give publicity to private life provided
  disclosure is seriously offensive or
  objectionable to a reasonable person and he knows
  or ought to know in all the circumstances that it
  is seriously offensive or objectionable - this
  would apply to publishing photos, not taking them

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Civil Liability Media (3)

• Public interest defence, with partial list of
  what would suffice
• Prevention, detection and investigation of crime
• Prevention of unlawful or seriously improper
  conduct
• Establishing whether plaintiff was able to
  discharge public or professional duties or fit
  for any public office or profession carried or
  sought to carry on
• Prevention of public being materially mislead by
  a public statement of the plaintiff
• Protection of public health, public safety,
  national or HK security
• And proportionate to the legitimate aim.

13
Media Intrusion Media

• Obvious unsolved problems common privacy abuses
  by the media, many of which affect the man in the
  street, not just singers and actors! Reading the
  list of potential cases in the report should
  persuade any reasonable person.
• Consultation suggestion was a statutory body that
  could fine and require apologies
• In response, industry set up Press Council that
  is ineffective as it is ignored by newspapers
  with major market share and by magazines (remit
  extends far beyond privacy to morality)
• Key criticisms of our original proposals
• Fines could be government tool
• Claim that CE could manipulate membership

14
Media Intrusion Media

• Final proposals
• Independent, self-regulating press commission for
  protection of privacy (only)
• Covers all newspapers and magazines registered in
  HK
• Press members include publishers, journalists,
  press photographers and academics nominated by
  professional bodies or elected
• Public members nominated by independent NGOs and
  professions with interest in press standards or
  conflict resolution
• CE can only reject nominations if procedural
  impropriety
• Press privacy code responsibility of Commission
• Code to cover factual errors as well as reconcile
  privacy and press freedom
• No power for compensation or fine
• Power to require publication of corrections and
  statements of Commission findings

15
Covert Surveillance Media

• 2 crimes for covert surveillance proposed
• Trespass with intent to observe/overhear/obtain
  personal info
• Place/use/service/remove sense-enhancing,
  transmitting or recording device inside/outside
  private premises with intention to collect
  personal information relating to individuals
  inside private premises where those individuals
  have a reasonable expectation of privacy.
• Clearly does not apply to photography in public
  places, unless taking a photo into a private
  place (second offence)

16
Covert Surveillance Media

• Defences
• Authorised by law (i.e. law enforcement only)
• Reasonable grounds for a reasonable belief that a
  serious offence was being committed, law
  enforcement would not deal with it and covert
  surveillance was necessary to collect the
  evidence
• Private premises
• Occupied or used, however temporarily, for
  residential purposes, including hotel room and
  hospital areas used for treatment or sleeping

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Privacy Hong Kong
New NGO being formed to provide independent
perspective on protection of privacy - website
coming at http//privacy.ssrc.hku.hk/ Welcome to
contact me at johnbs_at_hku.hk if interested