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Chapter 12 - Enforcing the right to privacy


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Proof of damage

12.1 Remedies for invasion of privacy may include damages, injunction, an account of profits, and delivery up of articles or documents obtained in consequence of the invasion. Damages payable to the plaintiff for loss or damage he suffers by reason of an invasion of privacy may include pecuniary loss. However, such loss might be negligible in intrusion cases. The problem to be addressed is whether it is necessary for the plaintiff to prove that he has suffered actual damage comparable with personal injury or loss of or damage to property before he has the right to bring an action for invasion of privacy.

12.2 The tort of violation of privacy under the Canadian statutes is actionable without proof of damage. The JUSTICE Report said that actual damage should be assumed because it would be difficult in many cases of infringement of privacy for the plaintiff to show actual loss.[578] The Irish Law Reform Commission recommends that the plaintiff need not show that he suffered any damage. It comments that it is the affront to human dignity, not the damage which may result from the invasion of privacy, which is the essence of the wrong for which the victim should be compensated.[579]

Recommendation 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.

Damages

Compensatory damages

12.3 The primary aim of compensatory damages is to put the plaintiff into as good a position as if no tort had been committed. Since the gravamen of the cause of action for invasion of privacy is civil wrongs of a personal character which result in injury to the plaintiff's feelings, the mental and emotional suffering are proper elements of damages in privacy actions.[580] Damages in an action for invasion of privacy should therefore include compensation for the mental distress, embarrassment and humiliation suffered by the plaintiff. The defendant's conduct after the infringement may be relevant because damages may be mitigated if the defendant has published a timely retraction or apology. Where the plaintiff suffers no material injury, he would be awarded nominal damages only.

Aggravated damages

12.4 Where the defendant acted with intent to injure or annoy the plaintiff and with full knowledge of the extent and severity of the plaintiff's injuries, the award of damages over and above compensatory damages would be justified. At present, aggravated damages may be awarded as extra compensation to the plaintiff when the motives and conduct of the defendant aggravated the injury to the plaintiff.

Exemplary damages

12.5 The purpose of exemplary or punitive damages is to punish the defendant for his wrongful conduct. They are useful in "vindicating the strength of the law and thus affording a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal."[581] Exemplary damages have been awarded where the defendant's conduct had been calculated to make a profit for himself which may exceed the compensation payable to the plaintiff.[582] Where the defendant has published private facts in the newspaper with a view to increasing its circulation and profit by an amount which would exceed usual compensatory damages, he might be required by the court to pay exemplary damages to the plaintiff.

12.6 Andrew Burrows points out that there are other satisfactory means of serving the object of exemplary damages. He said that:

"irrespective of whether criminal punishment is felt justified, the civil law ... can justifiably go beyond compensation by awarding restitutionary remedies stripping the defendant of his profits. Compensation alone does not and need not underpin tortious ... monetary remedies; restitution, occupying a mid-position between compensation and punishment, is an acceptable remedial function for a civil wrong."[583]

12.7 However, Lord Diplock stressed that exemplary damages under this category are not merely concerned with reversing the defendant's unjust enrichment:

"to restrict the damages recoverable to the gain made by the defendant if it exceeded the loss caused to the plaintiff, would leave a defendant contemplating an unlawful act with the certainty that he had nothing to lose to balance against the chance that the plaintiff might never sue him, or if he did, might fail in the hazards of litigation. It is only if there is a prospect that the damages may exceed the defendant's gain that the social purpose of this category is achieved - to teach a wrongdoer that tort does not pay.[584]

12.8 Nonetheless, many commentators have queried whether the award of exemplary damages can be justified. Some of the arguments against the award of exemplary damages are as follows:

a) Punishment is an extreme sanction justifiable only if a law designated as criminal has been broken.

b) It is undesirable that punishment is imposed on the defendant without the procedural and evidential safeguards of a criminal trial.

c) It is undesirable that the plaintiff should profit by the punishment of the defendant. The sum of money representing exemplary damages should go to public funds and not to the plaintiff.

12.9 Although both the UK Consultation Paper and the Australian Law Reform Commission recommended that damages should not include any amount as punitive or exemplary damages,[585] we understand that the English Law Commission is now studying the subject of aggravated, exemplary and restitutionary damages.[586] Any reform in this area can only be the subject of a separate exercise. We prefer to leave the courts to decide whether aggravated or exemplary damages should be awarded in a particular case. In other words, the existing rules on aggravated and exemplary damages should apply to the specific torts of invasion of privacy.

Injunction

12.10 The injunction to restrain publication is valuable where there is a threat to publish information obtained by an invasion of privacy by intrusion upon solitude or seclusion. It should also be available where the publication itself is actionable as an invasion of privacy, whether the information has come into the hands of the defendant by lawful or unlawful means. The harm which the plaintiff is likely to suffer in such situations would not be adequately compensated by damages if an injunction were not granted. A plaintiff is usually more concern with the prevention or cessation of intrusion or publication rather than with the amount of damages he is likely to receive from the defendant after the invasion. Once the details of the private life of an individual are made public, the damage is done and no amount of damages may compensate him. It would therefore be unjust to the plaintiffs if the remedy of injunction is denied to them.

12.11 The courts in England and Australia have expressed different views on whether the court has jurisdiction to restrain the publication of information obtained as a result of trespass. Whereas the English court in Kaye v Robertson[587] held that the plaintiff would not be able to obtain an injunction to prevent the publication of the pictures obtained during the course of trespass, an Australian court held that it has power under its equitable jurisdiction to grant an injunction to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved, provided that the circumstances are such as to make the publication unconscionable.[588] In New York Times Co v United States,589 the United States Supreme Court acknowledged that it had power to restrain the defendants from publishing the Pentagon Papers obtained as a result of trespass, but refused to do so only because the Government had failed to show that such a restraint on the freedom of expression was warranted.

12.12 Where the data subject complains to the Privacy Commissioner that a data user is contravening a data protection principle, the Privacy Commissioner may serve an enforcement notice on the data user directing him to "take such steps as are specified in the notice to remedy the contravention". The Commissioner may serve such a notice notwithstanding that his investigation has not been completed. Apparently the legislature intended to provide relief in the nature of an interlocutory injunction. However, the data user is not obliged to take the required steps within 7 days of the date on which the notice was served even if it is an urgent case.[590] Thus the contravention may last for at least another 7 days even if the complainant is able to convince the Commissioner that a person has installed a video-camera outside his property observing his activities therein, or a person has put sensitive and intimate information about him on the Internet without his consent. This is unsatisfactory. The data subject of an invasion of privacy should be entitled to have the contravention stopped as soon as it is established that there is a prima facie case of contravention.

12.13 The Privacy Commissioner is also powerless in cases where there is merely a threat of a contravention of a data protection principle. Under section 50 of the Personal Data (Privacy) Ordinance, the Commissioner has power to serve an enforcement notice only if he is satisfied that the data user-

"(a) is contravening a requirement under [the] Ordinance; or

(b) has contravened such a requirement in circumstances that make it likely that the contravention will continue or be repeated".[591]

There is therefore no equivalent of the quia timet injunction in the Ordinance to restrain a data user from committing an apprehended breach of a data protection principle.[592] Quia timet injunction is important in the context of privacy protection. Although injunction is useful if the breach has not terminated, the plaintiff would want to enjoin the defendant from committing the breach in the first place. This preventive remedy is not available in the Ordinance. If a data subject has disclosed personal data to the data user for a certain purpose but the latter has threatened to use the data for an unrelated purpose, the Privacy Commissioner cannot issue an enforcement notice unless and until the personal data has actually been used for an unauthorized purpose.

12.14 We believe that a plaintiff should be able to apply to court for injunctive relief if the defendant has infringed or threatened to infringe his right of privacy. It would be unjust to the plaintiff if nothing can be done until the breach has actually occurred.

Published apology

12.15 An apology is particularly relevant if inaccurate publication or publicity placing the plaintiff in a false light forms part of the definition of invasion of privacy. In other cases, it would offer the plaintiff an opportunity to vindicate his claim that the invasion is wrongful. However, the UK Consultation Paper warned that:

"unless the form or terms of an apology were very strictly laid down, there would be a risk that in publishing it the private matters at issue would simply be exposed to public scrutiny again. Many plaintiffs would not want this. It must also be borne in mind that such a remedy might be counter-productive to the plaintiff where the private matter had not originally been made public, or had been disseminated by other means than publication."[593]

12.16 We agree that the courts should have power to order the publication of an apology which is of equal prominence to the wrongful disclosure.

Account of profits

12.17 An account of profits seeks to recover the profit which the defendant has obtained by his wrongdoing. It is an equitable remedy by which the defendant is required to draw up an account of, and then to pay the amount of, the net profits he has acquired by the wrongful conduct.[594] An account of profits is available for breach of confidence and torts involving infringement of intellectual property rights. The purpose of ordering an account of profits is not to inflict punishment on the defendant but to prevent an unjust enrichment of the defendant by compelling him to surrender those parts of the profits made from his wrongdoing.

12.18 Damages and an account of profits are mutually exclusive. The English Law Commission explains:

"Where both remedies are available, they are always alternative, since if both were granted the plaintiff would receive a double benefit for the same wrong; but as one remedy may be more beneficial to the plaintiff than the other, it is at the plaintiff's option (subject to the discretion of the court in granting the equitable remedy of an account) which remedy he will take."[595]

12.19 A commentator observes that the privacy laws in France have not stopped magazines publishing photographs taken by paparazzi. Substantial damages and apologies are not sufficient to deter them because the damages required to compensate the victim do not match the profit generated by the photographs. Publishers are therefore willing to risk liability and budgets for the damages they have to pay when public figures sue.[596] To deter such conduct and to prevent the wrongdoers from benefiting from their own wrong, we think that the court should have a power to make an order for an account of profits.

[597]

Delivery up

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12.20 Delivery up is an equitable remedy. In actions concerning breach of confidence, the order normally requires the defendant to deliver the goods or material containing confidential information to the plaintiff. Where there has been an infringement of intellectual property rights, the court may order the defendant to deliver up to the plaintiff or the court for destruction, or himself to destroy on oath, any infringing articles. The latter remedy may be granted even though the plaintiff does not own the articles ordered to be destroyed. Another example is libel, where the court may grant an order requiring the defendant to destroy or erase the libellous material. Russell J explained the function of the remedy:

"[The plaintiff] is protected as to further manufacture of infringing articles by the injunction which he obtains, but there remains this, that so long as there is still what I might call infringing stock in the possession of the infringer, he may be subject to too serious and grave a temptation and may therefore be tempted to commit a breach of the injunction which he would otherwise not commit. Accordingly, in order to assist the plaintiff and as a relief ancillary to the injunction he has obtained, the Court may in its discretion make an order for destruction or delivery up of infringing articles."[598]

12.21 The remedy is useful where the material contains information about the plaintiff which were obtained by the defendant in consequence of an invasion of privacy but in respect of which the remedies under the law of copyright or breach of confidence are not available.[599] The order may, in such cases, direct the defendant to deliver for destruction any records of, or articles embodying, information about the plaintiff which is seriously offensive and objectionable to a reasonable person. The court should not order full destruction of the material if the rights of the plaintiff can be effectively protected by removing the information from the material.

Recommendations

Recommendation 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.

Recommendation 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.

Recommendation 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.

Form of trial

Jury trial

12.22 The general rule is that all civil actions are heard before a judge without a jury. The only exceptions are actions for defamation, malicious prosecution and false imprisonment. JUSTICE thought that questions such as whether the infringement was "substantial and unreasonable" or whether one of the defences applies could best be determined by a jury. They recommended that, where a case comes to trial in the High Court, either party should have the right to ask for trial by jury.[600] Winfield also held the view that the question of offensiveness ought to be one for the jury, subject to the judge's power to decide whether there is or is not sufficient evidence of offensiveness for a jury to decide as a matter of fact.[601]

12.23 The UK Consultation Paper noted that although actions for defamation carry the right to opt for jury trial, the parties in actions for breach of confidence do not have such a right. It argued that jury trial should not be available in privacy actions on the following grounds:

a) There has been some concern as to whether juries are able to handle trials involving difficult issues.

b) The arguing of defences may involve detailed legal issues, especially in early cases, which may be best suited to trial by judge alone.

c) The use of a jury usually increases the costs of a case, chiefly because more time is needed.

d) It is not easy to achieve consistency between awards where they are made by juries.[602]

12.24 We agree with the views expressed in the UK Consultation Paper and do not recommend that actions for invasion of privacy should be heard before a jury.

Hearings in camera

12.25 The JUSTICE Report recommended that the court should be given power, in its discretion, to hear actions for infringement of privacy otherwise than in open court:

"An infringement may be complete before there is any publication, and publicity is the very harm which the plaintiff may most be concerned to avoid. The certainty of a public trial could therefore easily make an action for infringement of privacy an empty remedy in many cases. The situation appears to us to be closely analogous to that of trade secrets, where a public trial could destroy the very substance of the action, and the courts therefore have power, frequently exercised, to sit in private."[603]

12.26 We think that it is unnecessary to provide for the hearing of a privacy action in camera because the plaintiff would be deemed to have waived his right of privacy in the subject matter if he prefers to seek relief by bringing legal proceedings in court.[604]

Limitation period

12.27 An action founded on tort cannot be brought after the expiration of 6 years from the date on which the cause of action accrued.[605] The JUSTICE Report suggested that the following principles should be applied in determining what limitation period would be appropriate for the statutory tort of infringement of privacy:

"(a) Since many invasions of privacy are carried out in secret and may remain undetected for long periods, it would be wrong for a plaintiff to lose his remedy by reason of the mere passage of time, unless he was himself at fault in failing to make the discovery;

(b) on the other hand, once the facts are known, we can see no reason why a plaintiff should not proceed promptly if the infringement was serious enough to merit a lawsuit;

(c) lastly, since there must be finality in all litigation, we consider that there should be an absolute period after the expiry of which no action should be brought."

12.28 The JUSTICE Report accordingly recommended that "there should be a limitation period of three years, starting with the time when the plaintiff first became aware, or by the exercise of reasonable diligence could have become aware, of the infringement but that in any case no action should be brought more than six years after the cause of action accrued to the plaintiff."[606] This recommendation was adopted in Brian Walden's and William Cash's Bills. John Browne's Bill was similar except that it did not bar the taking of an action more than six years after the cause of action accrued to the plaintiff.[607] The UK Consultation Paper agreed that special provision should be made for actions to be brought out of time where the plaintiff was not initially aware of the infringement.

"The main harm suffered by the plaintiff in a privacy action is injury to his feelings. A person whose privacy had been invaded should take prompt action to secure redress for injury to their feelings. The standard period of 6 years for tort actions is therefore too long. On the contrary, a period of one or two years is too short because the full implications of the defendant's conduct may not be apparent until sometime after the invasion. We believe that a limitation period of three years is appropriate."

Recommendation 24

We recommend that no action for invasion of privacy should be brought after expiration of 3 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.

Parties to actions for invasion of privacy

12.29 The Law Amendment and Reform (Consolidation) Ordinance (Cap 23) in Hong Kong lays down the general rule that on the death of any person, "all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate".[608] There is, however, no survival of causes of action for defamation.[609]

12.30 In Canada, all the privacy statutes but the Manitoba Privacy Act provide that the cause of action is extinguished by the death of the person whose privacy is alleged to have been violated.[610] The Paris Court of Appeal once held that information relating to a person's ascendants, spouse or descendants would always be a part of his private life. This approach has been rejected by a later decision in which the Court of Appeal held that the right to forbid any form of disclosure of his private life belongs only to living persons and "the descendants of a deceased person are only entitled to defend his or her memory against an attack which contains falsehoods or errors or is published in bad faith."[611]

12.31 We consider that a privacy action should be available only to individuals and not legal persons. Since the right of privacy is a personal one, the plaintiff must show that his right of privacy has been infringed before he can seek recovery. In other words, a privacy action should be maintained only at the suit of the person whose privacy has been invaded. Since the mischief is the mental harm and injured feelings suffered by an individual, only living individuals should be allowed to seek relief. Where the subject of invasion is a deceased person, his personal representative should not be allowed to bring an action unless the privacy of the personal representative has also been invaded by the defendant's act or conduct. An example is that of the publication of a family photograph of a person who has been killed in an accident. The personal representative of the deceased person should not be allowed to take an action against the newspaper unless the publication of the photograph infringes his right of privacy.

Recommendation 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.

Recommendation 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.

Admissibility of evidence obtained through invasion of privacy

12.32 There are two conflicting views as to the admissibility of evidence obtained by an invasion of privacy. On the one hand, excluding unlawfully obtained evidence would discourage and deter the use of intrusive means to obtain personal information. It would also compel those who are responsible to respect the privacy of others. On the other hand, excluding such evidence would preclude the court from gaining access to relevant and otherwise admissible evidence. This would result in the parties not having a fair trial. On this view, all evidence which is necessary to establish liability should be admitted but those responsible for actionable invasions of privacy may be sued in another civil action. The law reflects the second view: "It matters not how you get it; even if you steal it, it would be admissible evidence."[612] The courts in civil proceedings have no discretion to exclude relevant and admissible evidence on the ground that it may have been obtained unlawfully.

12.33 Of the four privacy statutes in Canada, only the Manitoba Act provides that evidence obtained through a violation of privacy in respect of which an action may be brought is inadmissible in any civil proceedings.[613] The JUSTICE Bill and Brian Walden's Bill contained a clause banning in civil proceedings "evidence obtained by virtue or in consequence of the actionable infringement of any right of privacy" by one of the means of surveillance defined in the Bill. The JUSTICE Report said:

"The principal considerations are, on the one hand, the court's concern to establish the truth and, on the other, the incentive which the admissibility of such evidence provides for professional and amateur spies. In the field of criminal law, we have hesitantly come to the conclusion that the needs of the community for its own safety outweigh the opposing considerations. However, in the field of civil litigation we consider that the upholding of the standards of civilised life is a great deal more important than the few occasions on which one party or another may be deprived of evidence which could be obtained in no way other than by an offensive method of spying. Accordingly, we recommend that evidence so obtained should no longer be admissible in civil litigation."[614]

12.34 Since evidence obtained through an actionable invasion of privacy may be the only means of establishing the truth of a crucial fact which otherwise might not be accepted, such evidence should not be excluded in civil proceedings. It is open to the party whose right to privacy has been infringed to start a separate action for invasion of privacy.

Recommendation 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.

Relationship between the new remedies and existing remedies

12.35 The remedies proposed in this paper overlap with those available under the Personal Data (Privacy) Ordinance. We think that an individual should not be obliged to exhaust his remedies under the Ordinance before he could bring an action for invasion of privacy under the proposed legislation. In Canada, all the privacy statutes (except the British Columbia Act) provide that the right of action is in addition to existing remedies.

Recommendation 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.

Level of court

12.36 The legislation need not specify the level of court at which privacy actions may be started. It would be up to the plaintiff to decide at which level of court to commence a privacy action. The amount of damages he is claiming is a factor to be taken into consideration.

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Recommendation 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. (Chapter 7)

Recommendation 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. (Chapter 7)

Recommendation 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. (Chapter 8)

Recommendation 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. (Chapter 8)

Recommendation 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. (Chapter 9)

Recommendation 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. (Chapter 9)

Recommendation 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. (Chapter 9)

Recommendation 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. (Chapter 10)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 11)

Recommendation 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. (Chapter 12)

Recommendation 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. ((Chapter 12)

Recommendation 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. (Chapter 12)

Recommendation 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. (Chapter 12)

Recommendation 24

We recommend that no action for invasion of privacy should be brought after expiration of 3 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. (Chapter 12)

Recommendation 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. (Chapter 12)

Recommendation 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. (Chapter 12)

Recommendation 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. (Chapter 12)

Recommendation 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. (Chapter 12)

Annex - Breach of confidence[615]

[578] JUSTICE, para 144.

[579] Para 9.32.

[580] 62A Am Jur 2d, Privacy, SSSS 252 and 253. Damage suffered by a data subject by reason of a breach of a Data Protection Principle under the Personal Data (Privacy) Ordinance may include injury to feelings: Cap 486, section 66(2).

[581] Rookes v Barnard [1964] 1129, at 1226.

[582] Cassell v Broome [1972] AC 1027. According to Lord Hailsham, what is required is "(i) knowledge that what is proposed to be done is against the law or a reckless disregard whether what is proposed to be done is illegal or legal and (ii) a decision to carry on doing it because the prospects of material advantage outweigh the prospects of material loss." Above, at 1079.

[583] A Burrows, Remedies for Torts and Breach of Contract (London: Butterworths, 2nd edn, 1994), 284.

[584] Cassell v Broome, at 1130.

[585] UK Consultation Paper, para 6.12; Law Reform Commission of Australia (1979), para 263.

[586] See Law Commission, Aggravated, Exemplary and Restitutionary Damages: a Consultation Paper (London: HMSO, 1993).

[587] [1991] FSR 62.

[588] Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, at 463.

589 (1971) 403 US 713. Cf Commonwealth v Wiseman (1969) 249 NE 2d 610.

[590] Cap 486, section 50(1) & (5). This remedy is available to the Commissioner notwithstanding that his investigation has not been completed: section 50(8).

[591] A contravention of a Data Protection Principle is deemed to be a contravention of a requirement of the Ordinance: section 2(4).

[592] A quia timet action is an action for an injunction to prevent an apprehended wrong, though none has yet been committed by the defendant at present. The plaintiff must show that it is highly probable that the apprehended wrong will be committed, and that the wrong will be committed imminently. An injunction to prevent a recurrence of wrongful acts by the defendant is not quia timet.

[593] Para 6.17.

[594] A Burrows, 299.

[595] Law Commission, Breach of Confidence (London: HMSO, Cmnd 8388, 1981), para 4.86. Burrows does not agree that combining restitution and compensation for a tort is inconsistent or constitutes double recovery. He points out that one is concerned with the defendant's gain but the other is with the plaintiff's loss. See A Burrows, 305. Cf Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 at 32.

[596] "Why Paparazzi are Beyond the Law", The Times, 3 September 1997.

[597] The Criminal Procedure Ordinance contains provisions for the disposal of property connected with the commission of offence. Depending on the type of property concerned, the courts have power to order the delivery up, sale, retention or destruction of property. Property which were obtained in consequence of a tort are not governed by such provisions.

[598] Mergenthaler Linotype Co v Intertype Co Ltd (1926) 43 RPC 381 at 382.

[599] Prescott argues that if the defendant in Kaye v Robertson [1991] 1 FSR 62 were liable for trespass to land, it was open to the court to make an order for delivery up for destruction of the offending negatives and copies, and an injunction restraining them from publishing or parting with possession of the same. See P Prescott, "Kaye v Robertson - A reply" (1991) 54 MLR 451.

[600] JUSTICE, para 147.

[601] P H Winfield, "Privacy" (1931) 47 LQR 23, at 41.

[602] Para 6.23.

[603] JUSTICE, para 147. Section 120 of China's Civil Procedure Law provides that civil cases involving individual privacy may be conducted in private.

[604] But note that Article 14(1) of the ICCPR provides that the press and the public may be excluded from all or part of a trial "when the interest of the private lives of the parties so requires".

[605] Limitation Ordinance (Cap 347), section 4(1).

[606] Para 148. The American courts apply the "rule of discovery" in actions for invasion of privacy under which the limitation period does not commence to run until the time when the act constituting the invasion of privacy was discovered, or, by the use of reasonable diligence, could have been discovered.

[607] Cl 5.

[608] Cap 23, section 20(1).

[609] Proviso to Cap 23, section 20(1). Salmond argues that defamation may cause much more harm to the next-of-kin than an assault, and it is hard to see why the death of the defamer should deprive the plaintiff of his damages: R F V Heuston & R A Buckley, Salmond & Heuston on the Law of Torts (Sweet & Maxwell, 19th edn, 1987), p 495.

[610] British Columbia, section 5; Newfoundland, section 11; Saskatchewan, section 10.

[611] See R Redmond-Cooper, "The Press and the Law of Privacy" (1985) 34 ICLQ 769, at 774-776. Redmond-Cooper expressed the view at p 776 that this approach was justified as being "necessary for the sake of freedom of information and expression and for the historian and critic, who should only be held liable if they fail to tell the truth."

[612] R v Leatham (1861) 8 Cox CC 498 at 501; cited in Kuruma v R [1955] AC 197. The court in R v Senat (1968) 52 Cr App R 282 noted that "certainly in the Divorce Court, evidence is admitted daily which results from what many people would say is really outrageous conduct, in the sense of being an invasion of privacy or ungentlemanly conduct, prying through keyholes, climbing up and looking through windows, fixing speaking apparatus, recordings and so on, that is a daily incidence of the Divorce Court, ..." Above, at 286-7.

[613] Section 7.

[614] Para 149.

[615] This Annexure first appeared in: HKLRC Privacy Sub-committee, Consultation Paper - Privacy: Regulating Surveillance and the Interception of Communications (1996). Much of the text of this annexure was prepared by Professor Raymond Wacks, a member of the sub-committee. The members of the sub-committee are indebted to Professor Wacks for his contribution to this part of the paper.


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