Is there a need for an action of privacy in Hong Kong? Problems and possibilities

Privacy is an important value which is internationally recognised as worthy of protection. However, it has been under constant challenge for a number of reasons including changes in technology which facilitate informational and other forms of surveillance and privacy-invasive media practices. Because of its multi-faceted nature, privacy is typically regulated by a variety of different means. Data protection laws seek to ensure the fair handling of personal information. Criminal sanctions are used to outlaw more serious invasions of privacy, including certain breaches of communications privacy and uses of surveillance devices. Assorted civil actions are relied on to protect broader interests in privacy. However, the piecemeal nature of privacy protection is often found to be inadequate and victims frequently lack appropriate remedies. While privacy may receive some constitutional protection, either directly or through Human Rights legislation, such privacy requirements are generally enforceable only against public bodies. Therefore, many common law countries, either provide for, or are actively considering the introduction of, civil remedies to specifically address general privacy issues. There has also been active consideration of measures to regulate media organisations, especially in light of the Murdoch scandal in the United Kingdom. The inadequacies in the law have prompted calls for law reform in Hong Kong and the Law Reform Commission of Hong Kong (‘HKLRC’) has produced six final reports relating to privacy. Some of these have already resulted in the enactment of privacy-protective legislation, notably the Personal Data (Privacy) Ordinance Cap. 486 and the Interception of Communications and Surveillance Ordinance Cap. 589. Still outstanding, however, are the recommendations made in the reports on Civil Liability for Invasion of Privacy (2004) and Privacy and Media Intrusion (2004). The former examined the need of individuals to be able to seek civil remedies for unwarranted invasion of privacy. In it the HKLRC proposed the introduction of specific statutory torts of privacy to cover acts and conduct frustrating the reasonable expectation of an individual’s privacy. It proposed that a person, who invaded another’s privacy by intruding upon their solitude or seclusion, or by intruding into their private affairs or concerns, should be liable in tort. It also recommended another tort for invasion of privacy arising out of public disclosure of private facts. The latter report further addressed the issue of media invasions of privacy and recommended a statutory Press Council to oversee the activities of media organisations. This thesis focuses on the issue of civil liability as well as the associated issue of media regulation. It analyses the inadequacies of existing laws and regulatory regimes and attempts to come up with a model that is most suitable for Hong Kong. Chapter one gives a short introduction to the issues and laws in relation to privacy both locally and internationally. Chapter two sets the scene by providing an overview of privacy and its developments, definitional issues and the challenges that privacy is constantly facing. Chapter three follows with an outline of the laws which protect privacy in Hong Kong and highlights their limitations. Chapter four considers the common law action in detail including the options of increased protection via an expanded action of breach of confidence or a direct privacy tort as well as the suitability of these approaches in Hong Kong. Chapter five then goes on to consider the nature and extent of constitutional protection as well as the constitutional restraints that may hinder the development of privacy through the common law. Chapter six follows with an analysis of reform activities overseas and HKLRC’s recommendations. Finally, chapter seven concludes with proposals for the way forward in Hong Kong. It takes the HKLRC’s recommendations as its starting point but refines and modifies them, drawing on the insights that have since become available from the work of other law reform bodies and further developments in overseas caselaw.