Hong Kong: Privacy Watchdog Slams Paparazzi Photo Shoots And Urges For Legal Reform

Last Updated: 19 April 2012
Article by Kenny Wong and Eugene Low

Originally published April 16, 2012

Keywords: privacy watchdog, paparazzi, photo shoots, legal reform, Hong Kong

Summary

Two recent cases of clandestine photo-shooting of artistes' private life were condemned by Hong Kong's privacy watchdog, the Privacy Commissioner of Personal Data. The Commissioner dismissed the journalists' arguments of public interests, as the subject matter was merely gossip news. The Commissioner also voiced concern over the shortcomings of the law and urged for a more comprehensive legal framework.

Full Update

Two local magazines published photographs of TV artistes' activities at home, taken covertly using cameras equipped with long-focus lens and magnifiers. The photographs showed a male artiste's naked body in one case and in the other, intimate acts between two artistes.

The artistes complained to the Commissioner. After investigation, the Commissioner found the magazine publishers in breach of the Personal Data (Privacy) Ordinance for collecting personal data by unfair means. The salient points of the Commissioner's decision are summarised here:

  1. The photo-taking amounted to collection of personal data

    Whereas taking photos of a passer-by whom the journalist does not intend to identify would not be data collection (in light of the previous ruling of the Court of Appeal in Eastweek v. Privacy Commissioner), in the present case the journalists deliberately set out to take photographs of specific targets. This was data collection.
  2. Reasonable expectation of privacy

    People generally have a higher expectation of privacy of activities in their private homes. TV artistes should not be deprived of protection just because of their status and occupation. They would not reasonably expect outsiders to record their private or intimate acts through intrusive means
  3. Unfair collection

    The reporters took the photographs through prolonged and systematic surveillance with the help of special photographic equipment. In one case, the shooting distance was about 1,000 metres. This kind of secretive collection would generally be considered unfair.
  4. No public interest

    The magazines argued public interest as the photographs revealed the "truth" of the artistes' cohabitation status. Artistes were role models for young people and should not lie or conceal their relationship, so said the magazines. The Commissioner rejected that argument, drawing a distinction between matters involving a legitimate public concern and those focusing on tawdry descriptions of a public figure's private life. Cohabitation was a sensitive matter which the artistes were not obliged to divulge to others. Further, the magazines deliberately used only the more sensational photographs (e.g. those showing naked body) which was disproportionate and irrelevant to proving the alleged cohabitation.
  5. The magazines' duty

    The reporters took the photographs through prolonged and systematic surveillance with the help of special photographic equipment. In one case, the shooting distance was about 1,000 metres. This kind of secretive collection would generally be considered unfair.

Aftermath

The Commissioner issued an enforcement notice ordering the magazines to take steps to remedy the contravention. In response, the magazines lodged an appeal against the Commissioner's decision.

On the other hand, the artistes involved welcomed the decision as drawing a line between public interest and privacy. Under the Ordinance, an individual who suffers damage (including injury to feelings) by reason of a contravention of the Ordinance is entitled to sue for compensation. It remains to be seen whether any of the artistes would pursue this route.

A privacy law in Hong Kong?

The Commissioner remarked that the Ordinance is confined to personal data but not privacy rights in general. Its enforcement power is also limited. The Commissioner commented that the law at present does not offer comprehensive protection on privacy, and urged the Government to lead a public consultation on possible reform.

In this relation, it would be useful to note that while Hong Kong does not have a tort of privacy as such, the Hong Kong Bill of Rights Ordinance (incorporating provisions of the International Covenant on Civil and Political Rights) does provide a general right that "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence...".

Comparisons

It may be interesting to look at the position in the UK. In the UK, although there is not a tort of privacy as such, there has been a series of cases (especially since 2000 when the Human Rights Act 1998 came into force) where public figures tried to resort to various grounds to prohibit publications about their privacy. Notably, the UK courts recognised that the European Convention on Human Rights and the Press Complaints Commission Code had significantly influenced the development of the law of confidence in this area. A number of public figures were successful in claiming remedies through this route. For a further reading on the law in this area, interested readers may refer to the chapter of "Breach of Confidence" written by our partner Kenny Wong in the book "Intellectual Property Law and Practice in Hong Kong" published by Sweet & Maxwell.

Learn more about our Intellectual Property practice and Hong Kong office.

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2011. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

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