2.1 The desire to keep something private frequently appears to conflict with freedom of expression. Protection from unwanted publicity is often perceived as a derogation of the right to freedom of speech and of the press. The common response to the "inherent conflict" between privacy and free speech is to strike a balance between the two "competing interests", as if giving prominence to one interest would inevitably lead to a sacrifice of the other. But are privacy and free speech always in conflict or in competition with each other? We examine in this chapter whether regulation of unwanted publicity given to details of private life violates freedom of speech and of the press.
2.2 The traditional approach is to use either privacy or free speech as the starting point and then make allowances for the other. If the starting point is the right to privacy, disclosure of private facts would be justified only if it is "outweighed" or "overridden" by a public interest in disclosure. For instance, the Press Council Declaration of Principle on Privacy in the UK (1976) declared that: "The publication of information about the private lives or concerns of individuals without their consent is only acceptable if there is a legitimate public interest overriding the right of privacy."
2.3 The alternative approach is that suggested by the European Court of Human Rights in Sunday Times v United Kingdom. The Court held that it was "faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted." The Calcutt Committee adopted this approach. They started from a position that free speech is pre-eminent, but that certain exceptions protecting the individual may prove to be necessary.
2.4 In Britain, John Browne's Protection of Privacy Bill gave recognition to the competing interests of freedom of expression and the protection of individual privacy by allowing the defendant in an action for infringement of privacy to show that there was a public interest in using private information. If the defendant was able to satisfy the court that it was a genuine one, it was up to the plaintiff to show that the interest in such use was outweighed by the interest in privacy. Where this balance was evenly weighted the court would rule in favour of freedom of expression and the action would fail.
2.5 We doubt the wisdom of treating privacy and freedom of expression as discrete rights which are mutually exclusive. In our opinion, both the right to privacy and the freedom of expression are of equal importance. Rather than competing with each other, they serve the same values of a free society. Providing better protection to privacy would not impinge on freedom of expression. On the contrary, it would enable individuals exercise the right to free speech in a protected and more congenial environment. We explain how we come to this conclusion.
2.6 Prior to the handover in July 1997, the rights and freedoms protected by the International Covenant on Civil and Political Rights were entrenched by the Hong Kong Letters Patent. Since July 1997, the Basic Law of the Hong Kong SAR has replaced the Letters Patent and the Royal Instructions as the constitution of Hong Kong. Article 39 of the Basic Law provides:
"The provisions of the International Covenant on Civil and Political Rights ... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedom enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."
2.7 The Preamble of the Basic Law states that the Basic Law was enacted "in order to ensure the implementation of the basic policies of the PRC regarding Hong Kong." These "basic policies" were elaborated by the PRC Government in Annex I to the Sino-British Joint Declaration on the Question of Hong Kong, including the policy that the Hong Kong Government "shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of the person, of speech, [and] of the press".
2.8 Article 27 provides that Hong Kong residents are entitled to enjoy "freedom of speech, of the press and of publications". This Article merely identifies a particular group of rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. Article 39 permits restrictions on the rights to free speech and freedom of the press guaranteed by Chapter III of the Basic Law, provided that these restrictions are provided by law and are compatible with the international covenants on human rights.
2.9 Freedom of expression is one of the basic human rights protected under the International Covenant on Civil and Political Rights (ICCPR). Paragraphs 2 and 3 of Article 19 of the Covenant provide:
"2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public order (ordre public), or of public health or morals."
2.10 It is noteworthy that the following proposed sentence was not included in the General Comment of the UN Human Rights Committee on Article 19: "This is a right the effective enjoyment of which is essential to enable individuals to ensure for themselves the enjoyment of other rights protected in the Covenant." It is arguable that the failure to include the sentence indicates that although freedom of expression is important, it is not accorded the pre-eminence given to it under the American constitution.
2.11 Freedom of expression is capable of violating the rights of others, including privacy. Article 19 of the Covenant states that the exercise of the right to freedom of expression carries with it "special duties and responsibilities". The reference to "special duties and responsibilities" was adopted in order to offer States Parties an express tool to counter abuse of power by the modern mass media. States which supported these proposals were of the opinion that freedom of expression was a "dangerous instrument" as well as precious heritage. They maintained that, in view of the powerful influence the modern media exerted upon the minds of man and upon national and international affairs, the "duties and responsibilities" in the exercise of the right to freedom of expression should be especially emphasised.
2.12 The UN Human Rights Committee has not commented on the nature of these duties and responsibilities except that it is "the interplay between the principle of freedom of expression and such limitations and restrictions which determines the actual scope of the individual's right." But the expression is generally presumed to include the duty to present information and news truthfully, accurately and impartially. It has also been suggested that it obligates the speakers not to abuse their power at the expense of others. In determining the nature of the "duties and responsibilities", one has to find out the status of the person in question, the content of the information expressed, and the medium chosen for such expression. It is arguable that a person who chooses to publish in a newspaper, private information about children, victims of crime, or other vulnerable persons, is under a special responsibility not to harm the individual concerned.
2.13 By virtue of the ICCPR, freedom of expression may be subject to such restrictions as are necessary for respect of the rights of others. Manfred Nowak remarks that none of the restrictions on freedom of expression, including censorship, prohibition of dissemination, confiscation, prohibitions regarding speaking at an assembly etc, is absolutely prohibited by Article 19. He says each type of interference must be examined on the basis of the limitations in paragraph 3 whether it is permissible in a particular case. The travaux préparatoires reveals that only with respect to prior censorship that an absolute prohibition was intended.
2.14 A permissible restriction must be "provided by law", may only be imposed for one of the specified purposes, and must be "necessary" for achieving that purpose. The requirement of necessity implies that the restriction must be proportional in severity and intensity to the purpose being sought. In contrast to other provisions in the Covenant, Article 19(3) lacks a reference to the necessity in a democratic society. It is therefore arguable that the relevant criterion for evaluating the necessity of restrictions is not the principle of democracy but rather whether it was proportional in a particular case.
2.15 Although the General Comment given by the Human Rights Committee does not comment on the scope of the specified grounds of restriction in paragraph 3, the Committee has held that restrictions might be considered acceptable on the bases that a programme encourages homosexual behaviour, that the audience cannot be controlled, and that harmful effects on minors cannot be excluded. Nowak suggests that the "other rights" whose protection might justify restrictions on freedom of expression also include the right of privacy under Article 17:
"Even though the drafters of Art. 19 expressly adopted the right to seek information actively, this does nothing to change the duty on States Parties flowing from Art. 17 to protect the intimacy of the individual against sensational journalism. Above all, the legislature must prevent abusive access to personal data. Furthermore, Art. 14(1) expressly provides the possibility of limiting the access of the public and particularly the media to court proceedings in the interest of the private lives of the parties.
The protection of the rights and reputations of others may be ensured by measures of criminal, civil and/or administrative law. For instance, criminal provisions dealing with defamation, derision or slander are as justified by Art. 19(3) as copyright provisions or compensation claims under civil law by a person whose honour has been violated or privacy otherwise infringed."
2.16 As regards the expression "protection of morals" in Article 19, it may imply safeguarding the moral ethos or moral standards of a society as a whole, but may also cover protection of the moral interests and welfare of certain individuals or classes of individuals who are in need of special protection because of lack of maturity, mental disability or state of dependence. As far as the protection of individuals is concerned, the expression protects the psychological as well as the physical well-being of individuals and, where a child is involved, it covers a child's mental stability and freedom from serious psychic disturbance.
2.17 Even if an interference cannot be brought within the exceptions in paragraph 3, resort may be had to Article 5(1) of the ICCPR which authorises interference in a narrow range of circumstances. This article ensures that the right to freedom of expression would not be misused by private parties to destroy the rights of others. It provides that:
"Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant."
2.18 The purpose of Article 5(1) is to prevent the abuse of any one of the rights and freedoms declared in the Covenant for the purpose of prejudicing one or more of the others. The rights capable of being misused includes the freedom of expression in Article 19. Hence, the freedom may be denied to a person who incites racial discrimination. For present purposes, there are two aspects to Article 5(1). First, any limitation on exercise of the right to freedom of expression must not be greater than is provided for in the Covenant. Secondly, the exercise of that right cannot aim at the destruction of the right of privacy under Article 17.
2.19 Freedom of expression is also protected under Article 10 of the European Convention on Human Rights. The European Court of Human Rights expressed the view that freedom of expression constitutes "one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment," and that it is applicable to information and ideas that "offend, shock or disturb the State or any section of the community".
2.20 In enunciating the principles underlining the freedom of expression, the Strasbourg authorities have put a high value on informed discussion of matters of public concern. The European Court has therefore ascribed a hierarchy of value, first to political expression, then to artistic expression and finally to commercial expression. Furthermore, the Court is mindful of the fact that journalistic freedom also covers "possible recourse to a degree of exaggeration, or even provocation." Although it must not overstep certain bounds set, inter alia, for the protection of the reputation of others, it is nevertheless incumbent on it "to impart - in a way consistent with its duties and responsibilities - information and ideas on political questions and on other matters of public interest."
2.21 Common law recognise that press freedom has to be balanced against other interests. In carrying out this balancing exercise in a particular case, a judge would distinguish what he thinks deserves publication in the public interest and things in which the public are merely interested. Hoffmann LJ points out that a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. In his judgment:
"Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which `right-thinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute. ...
It cannot be emphasised too strongly that outside the established exceptions, or any new ones which Parliament may enact in accordance with its obligations under the [European Convention on Human Rights], there is no question of balancing freedom of speech against other interests. It is a trump card which always wins." (emphasis added)
2.22 Jurisdictions in Europe which are State Parties to the European Convention on Human Rights treat the rights of privacy and free expression as fundamental human rights having equal status. Both rights are subject to limitations necessary for the protection of the rights of others. There is no rights hierarchy under the Convention by reference to which a conflict between privacy and free expression may be resolved. According to this view, the two rights must be balanced. One will not inevitably trump the other.
2.23 Under the European Convention, the exercise of freedom of expression may be subject to such restrictions as are "necessary" in a democratic society for the protection of the rights of others. The adjective "necessary" has been construed by the European Court of Human Rights as implying the existence of a "pressing social need". In addition, the interference must be "proportionate to the legitimate aim pursued" and the reasons adduced to justify it must be "relevant and sufficient". The proportionality test implies that the pursuit of the countervailing interests mentioned in Article 10 of the Convention has to be weighed against the value of open discussion of topics of public concern. When striking a fair balance between the countervailing interests and the right to freedom of expression, the court should ensure that members of the public would not be discouraged from voicing their opinions on issues of public concern for fear of criminal or other sanctions.
2.24 The European Commission of Human Rights agrees that, in general, the restriction of true statements requires the application of a stricter test of necessity than the restriction of false or misleading allegations. However, it recognises that the truth of information cannot be the only criterion for being allowed to publish it. True statements can interfere with legitimate interests which deserve an equal degree of protection as freedom of expression, eg where the sphere of privacy or the honour and reputation of a person is at issue or where legal obligations of confidentiality have been breached. The European Court of Human Rights affirms this view, holding that:
"even the publication of items which are true and describe real events may under certain circumstances be prohibited: the obligation to respect the privacy of others or the duty to respect the confidentiality of certain commercial information are examples. In addition, a correct statement can be and often is qualified by additional remarks, by value judgements, by suppositions or even insinuations. It must also be recognised that an isolated incident may deserve closer scrutiny before being made public; otherwise an accurate description of one such incident can give the false impression that the incident is evidence of a general practice."
2.25 Justice Brandeis explained the origins of the First Amendment to the American Constitution, which states in part, "Congress shall make no law ... abridging the freedom of speech, or of the press ...":
"Those who won our independence ... valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government."
2.26 The US Supreme Court held that the First Amendment supports the view that the press must be left free to publish news without censorship, injunctions or prior restraints:
"In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government."
2.27 However, the First Amendment does not confer an absolute right to publish, without responsibility, whatever one may choose. The authors of American Jurisprudence elaborate:
"The extraordinary protections afforded by the First Amendment's guarantee of free speech and press carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly, a duty widely acknowledged but not always observed by the press. It does no violence to the value of freedom of speech and press to impose a duty of reasonable care upon those who would exercise such freedoms; the states have a substantial interest in encouraging speakers to carefully seek the truth before they communicate, as well as in compensating persons actually harmed by false descriptions of their personal behavior. ... Whenever the constitutional freedoms of speech and associations are asserted against the exercise of valid governmental powers, a reconciliation must be effected, requiring an appropriate weighing and balancing of the respective interests involved." 82
2.28 Hence, although the language is absolute in its prohibition of limitations on the press, the right of free speech is not absolute at all times and under all circumstances. Freedom of speech does not comprise the right to speak whenever, however, and wherever one pleases, and the manner, place, or time of public discussion can be constitutionally controlled.
2.29 As Laurence Tribe explains, the US Supreme Court has developed two approaches for resolving First Amendment claims. Government regulation which aims at ideas or information, in the sense of singling out actions for government control or penalty because of the specific message or viewpoint such actions express, is presumptively at odds with the First Amendment. On the other hand, if the regulation is not aimed at ideas and information but has the indirect result of restricting speech, the regulation is constitutional as long as it does not unduly restrict the flow of information and ideas. The latter approach requires the "balancing" of competing interests in the sense that the values of freedom of expression and the government's regulatory interests will be balanced on a case-by-case basis. Hence, the American government is allowed to regulate speech on the ground that the expression falls outside the First Amendment's purposes or fails to satisfy its premises, as when the message suppressed poses a "clear and present danger" or otherwise falls within one of the categories of expression which are not privileged by the First Amendment, such as: (1) portrayal of minors in sexual roles, (2) infringement of copyright, (3) obscenity, (4) defamatory falsehood, (5) contempt of court, and (6) several categories of atomic, military and intelligence information.
2.30 Likewise, it is well settled that the right of free press may be subject to legislative restriction within proper limits. Although states cannot violate the constitutional guarantee of freedom of the press, the publisher of a newspaper or magazine has no special privilege to invade the rights and liberties of others. They are subject to reasonable regulation like other citizens. So long it does not involve suppression or censorship, the regulation of newspapers is as broad as that over other private business. The Court has held that the power to regulate the business of newspaper publishers may be exercised in the interest of public health, morals, safety, and welfare. Nonetheless, a state may not punish a newspaper for the publication of truthful and lawfully obtained information about a matter of public significance, except when necessary to further a state interest of the highest order.
2.31 In order to understand the principles underlying freedom of speech, we examine in the following paragraphs, the political and philosophical arguments which might justify its inclusion in the international covenants. According to traditional views, the free speech principle serves four main functions: (a) ascertainment and publication of truth; (b) individual self-development and fulfilment; (c) participation in a democracy; and (d) safety valve function.
2.32 In accordance with this theory, open discussion with no restraint will lead to the discovery of truth. However, not all speech is protected by the free speech principle. Even the most liberal democracies ban speech which incites violence, interferes with the administration of justice, or discloses state secrets or confidential commercial information. Likewise, the requirement of decency and the interests in the protection of children require that hard-core pornography should be prohibited. Whereas publications about public officials and public figures are protected if they contain information relevant to the public's assessment of their suitability for office or general worth as a public figure, newspaper articles about the private lives of ordinary individuals do not generally constitute "speech" if the publication cannot be justified on any of the grounds supporting free speech. Although everyone should, in principle, have the liberty to express and publish true facts, this liberty does not extend to truth which causes private individuals annoyance or embarrassment without any corresponding benefit to the public. The publication of private facts which interferes with a person's private realm and is of no legitimate concern to the public should be restrained even though the facts are true.
2.33 Frederick Schauer argues that it is not always the case that knowing the truth is better than living under a misconception. Even if we are to accept that it is always better to know the truth than to be deceived by a false belief, knowing the truth does not necessarily put one in a better position than one who has no belief at all. The gain in knowledge may simply be an addition rather than the substitution of the true for the false. Furthermore, it does not follow that an increase in knowledge by a person is good in itself, either for that person or for society. Knowledge that an identifiable individual is a gay, an alcoholic or a welfare recipient has no intrinsic value if the individual concerned is merely an ordinary citizen. An increase of knowledge about such private facts might harm the interests of the individuals concerned without any corresponding benefit to society and the publisher.
2.34 We would add that giving undue emphasis to attainment of truth would render investigative journalism and academic research using human subjects difficult:
"The more reliable and systematic methods of attaining truth about human matters, such as research and responsible `human interest' journalism, could be threatened by the sensationalised and often misleading disclosures of the tabloid press. Journalists themselves get many of their best stories by guaranteeing the anonymity of their informants or subjects, or by agreeing that some things will be `off the record' ... . Often the truth on social issues and matters of lifestyle and human behaviour will more likely be discovered by protecting privacy than by violating it."
2.35 Freedom of expression is essential to the realisation of a person's character and potentialities as a human being. Restraining a person from expressing himself would not only inhibit the growth of his personality but would also affront his dignity. It is only through public discussion that individuals could formulate their own beliefs and develop intellectually and spiritually. But Alan Westin points out that privacy also contributes to the development of individuality:
"This development of individuality is particularly important in democratic societies, since qualities of independent thought, diversity of views, and non-conformity are considered desirable traits for individuals. Such independence requires time for sheltered experimentation and testing of ideas, for preparation and practice in thought and conduct, without fear of ridicule or penalty, and for the opportunity to alter opinions before making them public."
Freedom of speech and privacy therefore complement each other in working toward the same goal of individual self-fulfilment.
2.36 The free speech principle may also be viewed as a means by which citizens participate in social and political decision-making. Public discussion and debate of social and political issues assist citizens in understanding such issues and forming their own opinion on matters affecting their lives. This would in turn enable them to check government misconduct and to participate effectively in the operation of a democratic government. Freedom of speech is therefore essential to representative self-government. The argument from democracy is particularly applicable to the press because speech via the mass media contributes more to the democratic dialogue than speech via other means.
2.37 However, free speech is not the only means to facilitate citizen participation in social and political decision-making. One of the basic requirements of democracy is the moral autonomy of citizens. To the extent that privacy fosters and encourages autonomy, privacy is also important to democratic government. Allowing free discussion in private would contribute to a pluralistic society and protect those who question mainstream thoughts and values. Protecting individuals from unwanted publicity therefore facilitates public discussion and effective participation in a democratic government. The freedom to express ideas and opinions would be undermined if individual privacy is not protected against intrusion.
2.38 Ruth Gavison adds that protecting privacy can attract talented individuals to serve the community by assuring that they would not be exposed to unwanted publicity merely because they enter public life. An absolute claim to free speech would discourage people from participating in public affairs:
"Because it is probably possible to unearth some embarrassing facts about anyone, many individuals may decide to avoid becoming public figures. Therefore, a pattern of investigation and disclosure may seriously limit the life plans of worthy individuals and cost society its more explorative and inventive potential leaders. The leaders are then likely to be individuals who have never tried anything nonconformist or extraordinary, who never challenged accepted norms, and who never made mistakes."
2.39 As far as individual self-fulfilment and citizen participation are concerned, the interests in privacy are consistent with those in freedom of speech. Privacy and free speech serve the same values and are complementary to each other:
"In many cases where privacy and free speech conflict at a superficial level, they are at a deeper level merely two different modes of giving effect to the same underlying concerns. It is possible that in at least some of these cases, free speech values will be better served by protection of privacy than by permitting publication."
* it makes a rational judgment impossible, substituting force for reason;
* it promotes inflexibility and stultification, preventing society from adjusting to changing circumstances or developing new ideas; and
* it conceals the real problems confronting a society, diverting public attention from the critical issues.
2.41 The press is singled out for protection because it is more vulnerable to government control than individual speakers. Unless checked by the constitution, the government can impose restrictions on the press which would not be applicable to individual speakers, such as heavy taxation on publishing companies, requirements of large bonds to start a newspaper, and injunctions against future issues.
2.42 In an attempt to resolve the controversy as to whether the right to press freedom is a right of proprietors or a right of editors or journalists, it has been argued that press freedom is an institutional right rather than a set of individual free speech rights exercised by the individual journalists and proprietors. Seen in this perspective, the primary purpose of the press clause is to create a fourth institution outside the Government as an additional check on the executive, legislature and judiciary. It is in the interest of an informed electorate that the press should be free to seek and impart information; in particular, to inquire and scrutinise the actions of government. The institutional nature of the press clause also means that the government necessarily retains some discretion in deciding how the press is to be structured. In the opinion of Edwin Baker, rules specifically directing at the press should not be held unconstitutional under the press clause unless they are designed to undermine the press' integrity as an institution or its independence from government.
2.43 Under the Basic Law, the Government of the Hong Kong Special Administrative Region is accountable to the Legislative Council which is constituted by election. The Basic Law guarantees that the election of all Council members shall be by universal suffrage. In a society moving towards a representative democracy, the electorate would like to find out more about the workings of the Government and what are being done in their name by their representatives in the legislature. If democracy is to function effectively, it is essential that the public is adequately informed as to the actions of Government officials and the elected representatives. That necessitates a free press. The European Court of Human Rights held that:
"Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society."
2.44 Vincent Blasi argues that free expression is valuable in part because of the function it performs in checking the abuse of official power. His study reveals that those who drafted the First Amendment placed great emphasis on the role free expression can play in guarding against breaches of trust by public officials. Since the Government has more resources and political power than any political and private organisations, there is a need for the press which is well-organised and well-financed to serve as a counter-force to government. The press could play the role of professional critics who can acquire enough information to pass judgment on the actions of government, and disseminate their information and judgments to the general public. The American Supreme Court held:
"The Constitution specifically selected the press ... to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by government officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were elected to serve."
2.45 In summary, the media is a "purveyor of information and public watchdog". It provides a forum for public debate on topics affecting the life of the community. It ensures that the government is accountable to the public through, not only the dissemination of information, but also the exposure of corruption and abuse of power. To perform the checking and informative functions, the press must be constitutionally protected against governmental intervention in their internal operations.
2.46 Although press freedom is instrumental in the realisation of other rights and freedom, this does not mean that the press is free to investigate or publish anything they wish or anything that their readers wish to know. The Royal Commission on the Press in the United Kingdom explained:
"[P]roprietors, contributors and editors must accept the limits to free expression set by the need to reconcile claims which may often conflict. The public, too, asserts a right to accurate information and fair comment which, in turn, has to be balanced against the claims both of national security and of individuals to safeguards for their reputation and privacy except when these are overridden by the public interest. But the public interest does not reside in whatever the public may happen to find interesting, and the press must be careful not to perpetrate abuses and call them freedom."
2.47 The Younger Committee was of the view that a substantial invasion of privacy may be justifiable where it could be shown that the object was to give news "in the public interest", but much less often, if the object was to give news merely "of public interest". They concluded that the processes of inquiry involved in investigative journalism should not be treated by the law in any different way from other journalistic activities. Investigative journalism was in principle a legitimate function of the press "provided that it is carried on within the same rules which bind the ordinary citizen and the ordinary working journalist alike."
2.48 The press in the United States receives constitutional protection under the First Amendment. But Thomas Emerson has pointed out that such protection does not invest the press with a power to compel the production of private information:
"The press has a constitutional right to obtain information from private sources on a voluntary basis, but it does not have any constitutional power to compel the production of such information. Moreover, there are a number of limitations upon the methods that may be employed. Thus the press is controlled in its quest for information by traditional laws against trespass, theft, fraud, wiretapping, and so on. These recognized restrictions, which are similar to those protecting the right of privacy against any physical intrusion, have not occasioned any serious conflict ... ."
2.49 The Supreme Court of the United States has affirmed that the First Amendment is not a license for the press to violate otherwise generally applicable laws. It noted that there is a "well-established line of decisions" holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report news. The lower federal and state courts have also rejected the argument that the press clause in the Constitution protects the press from criminal and civil liability. In Dietemann v Time, the Ninth Circuit held that the constitutional guarantee of the freedom of the press had never been construed to accord the media immunity from torts or crimes committed during the course of news-gathering:
"We agree that newsgathering is an integral part of news dissemination. We strongly disagree, however, that the hidden mechanical contrivances are `indispensable tools' of newsgathering. Investigative reporting is an ancient art; its successful practice long antecedes the invention of miniature cameras and electronic devices. The First Amendment is not a licence to steal, or to intrude by electronic means into the precincts of another's home or office. It does not become such a licence simply because the person subjected to the intrusion is reasonably suspected of committing a crime." 113
2.50 In Hong Kong, the media has always been subject to limitations imposed by the criminal law, including the laws of copyright, theft, fraud and other like offences. The freedom of the press under the Basic Law gives journalists a right to obtain information from private sources on a voluntary basis only. It does not give the press a power to compel a citizen to release information about himself which he is unwilling to disclose. Nor does it accord journalists immunity from liability for intruding upon the seclusion or solitude of another. Prohibiting the use of intrusive means to collect personal data would not violate the media's right to freedom of the press. The media can always practise investigative journalism without employing intrusive means. As far as news-gathering activities are concerned, the freedom of the press is the freedom to gather news by fair and lawful means; it is not a freedom to gather news by means which are unlawful or unfair. From the readers' and viewers' point of view, they will continue to enjoy the right to receive information obtained by fair and lawful means.
2.51 Another point of significance is that the press in Hong Kong is not subject to any licensing controls. The registration of a local newspaper under the Registration of Local Newspapers Ordinance (Cap. 268) is purely a matter of formality. The registration fee is nominal and there are basically no restrictions on who can own a newspaper. If the press could enjoy privilege in the gathering of news, any person, including fraudsters and criminals, could take advantage of this privilege simply by registering as a newspaper proprietor. Needless to say, such a privilege is open to serious abuse. Insofar as law enforcement officers have to work within the confines of law and subject to all the checks and balances in the system, so should journalists who do not have to be registered with any professional body and are not accountable to anyone except their employers. Our views on the proposal to grant immunity to the media is best represented by the following opinion delivered by Fortas J in the American case of Time v Hill:114
"The courts may not and must not permit either public or private action that censors or inhibits the press. But part of this responsibility is to preserve values and procedures which assure the ordinary citizen that the press is not above the reach of the law - that its special prerogatives, granted because of its special and vital functions, are reasonably equated with its needs in the performance of these functions. For this Court totally to immunize the press - whether forthrightly or by subtle indirection - in areas far beyond the needs of news, comment on public persons and events, discussion of public issues and the like would be no service to freedom of the press, but an invitation to public hostility of that freedom."
2.52 Press freedom under Article 27 of the Basic Law must be weighed against other rights and freedoms specified in the Basic Law. Of particular relevance to our study are the right not to be subjected to "arbitrary or unlawful ... intrusion into a resident's home or other premises" under Article 29 and the right to "freedom and privacy of communications" under Article 30. Except for a few privileges recognised by the law, the press should not have any special rights distinct from those of the ordinary citizen.
2.53 Article 19 of the ICCPR provides that freedom of expression includes "freedom to seek, receive and impart information and ideas of all kinds". A motion to replace the word "seek" with "gather", thus excluding the right of active inquiry, was defeated in the UN General Assembly. The States voting against the motion stated that active steps to procure and study information should be protected and that any abuse on the part of journalists could be sufficiently prevented under the limitations clause in paragraph 3. The right to seek information is of particular importance to the press. The right of the press to acquire information is justified on the grounds that it is desirable to have an informed electorate which is able to assess the wisdom of governmental decisions. Lord Simon said:
"The first public interest is that of freedom of discussion in a democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on the facts and arguments relevant to the decisions. Much of such fact finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument. This is the justification for investigative and campaign journalism."
2.54 No citizen can obtain for himself all the information needed for the intelligent discharge of his political and social responsibilities. The dissemination of information by the press is often the means by which the public first discovers that an issue is a matter of public importance. The American Supreme Court acknowledged that "the free press has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrence." Although the Supreme Court has rejected the argument that the First Amendment creates a special right of the press to gain access to information, it has acknowledged that "without some protection for seeking out the news, freedom of the press could be eviscerated."
2.55 However, the argument that it is a function of the press to keep the public informed on social issues can only justify a right to impart or receive information without undue interference. It does not give the press a privilege to compel others to disclose information which they are unwilling to impart, nor does it entitle the press to use intrusive means to acquire personal information which others wish to keep private. The freedom to seek and receive information under Article 19 imposes no duty on any person to disclose information that he is reluctant to disclose. It does not provide a person with a right to extract information from an unwilling speaker.
2.56 The European Convention on Human Rights makes it clear that the freedom to receive information and ideas is a freedom from interference by public authority. The right envisages access to general sources of information only. It does not entitle a person to obtain information from someone who is unwilling to impart information. The right is therefore nothing more than a liberty to receive, without undue interference by the public authorities, information acquired from or imparted by a willing speaker. Freedom of speech and of the press are implicated where an injunction is sought against publication of personal information. This freedom is not violated if an injunction is sought against unlawful intrusion upon privacy by the press.
2.57 The Internet is an international network of interconnected computers. It has been described as the posters of the late twentieth century. It allows individuals to publish on computer networks without revealing their true identity. It can enhance an individual's ability to promote truth, political and social participation and self-fulfilment. The cost is relatively low and it is available to people of modest means in Hong Kong.
2.58 About 40 million people used the Internet in 1996. This figure is expected to grow to 200 million by 1999. Internet users may take advantage of various communication and information retrieval methods, including electronic mail, automatic mailing list services ("listservs"), "newsgroups", "chat rooms", and the "World Wide Web". All of these methods can be used to transmit sound, pictures and moving video images. They are available to anyone with access to the Internet. Any individual or organisation with a computer connected to the Internet can publish information to a world-wide audience consisting of millions of readers and viewers. The publisher may either make the material accessible to all Internet users, or restrict access to a group, such as those willing to register or pay for the right. One commentator explains how the information age has changed passive readers and viewers into interactive publishers and broadcasters:
"The information superhighway will allow for two or more speakers to exchange information interactively. In addition, unlike the telephone, the information superhighway will allow individuals to communicate with large groups of people, turning more users into publishers by magnifying the reach of their message. These technological evolutions will shift the locus of editorial control from broadcasters and publishers toward viewers and users."
"With current technology, the user is largely a passive recipient of information; except when using the telephone, she is actually not a speaker at all, but a viewer or listener. Interactivity will soon characterize all future media, however. Courts have already recognised that the First Amendment protects telephone callers' speech. Presumably, such protection would also extend to other forms of interactive communications over the superhighway. Indeed, the ability to communicate interactively with a large segment of the public through point-to-multipoint transmissions will reinforce users' First Amendment interests, in part because the speech will contribute to public discourse rather than to a merely private conversation."
2.59 An individual's privacy may be invaded by the publication of personal information on the Internet. It may also be invaded by obtaining unauthorized access to personal information on the Internet. Since e-mail facilitates publication and redistribution of personal information to large groups of people, the harm which might be caused to the individual by publishing sensitive information about him on the Internet is likely to be far more substantial than the publication of the same information in a local newspaper or magazine. The ability to reach a wide audience has given rise to concerns about loss of privacy. The Hon John Sopinka of the Supreme Court of Canada wrote:
"There is no doubt that electronic media have expanded the potential for individuals to express their views and engage in a free and open exchange of ideas. ... However, the greater the quantity of expression, the greater the likelihood that people will be exposed to messages which disregard the rights of persons living in a free and democratic society."
"The fear of loss of personal privacy has dramatically increased due to the ease with which information can now be assimilated, processed and stored. Technology has afforded law enforcement agencies opportunities for surveillance of Orwellian proportions. To preserve our privacy, it may be necessary to regulate the developing `information super-highway' in order to prevent intimate details of our lives being shared at the touch of a button."
2.60 A person who engages in online activities which are readily accessible to all users should have no expectations of privacy. For example, a message posted to a public newsgroup or bulletin board on the Internet is available for anyone to read and copy. Public postings made on the Internet may also be archived in searchable databases. Since search engines on the Internet use "robots" to peruse the World Wide Web and discussion groups on the Internet ("Usenet newsgroups"), and to record every message communicated in Usenet postings and archived listserv postings, it is possible to search the postings made by an Internet user to Usenet newsgroups and World Wide Web sites. Thus, although Usenet groups or listservs appear to allow for confidential exchange of information, the postings often achieve Internet-wide distribution when they are archived or included in the search engine databases. The Privacy Rights Clearinghouse in the United States warns that "[t]here are virtually no online activities or services that guarantee an absolute right of privacy".
2.61 An Internet Service Provider ("ISP") can keep track of almost everything that an Internet user, using their dial-in facilities, connects to or downloads. The ISP can therefore collect information about the user's online activities, such as the newsgroups which they have accessed or the sites which they have visited. Note that user identification requires matching (using the user's login name) the activity records with the ISP user records. The ISP can also access e-mails that use the ISP mail server as they are stored as files on that machine that can be accessed easily within the ISP office. However, when there are complaints of users sending junk e-mails, the ISP may need to look at e-mails sent via their mail server in order to identify the source of the abuse, despite the privacy risk.
2.62 A website administrator has much more limited scope for invading privacy. Unless users provide registration information voluntarily, the administrator only knows the Internet address of the computer, and the "referring address". The administrator only knows who the user's ISP is (by looking up the location of that address), unless the ISP provides them with the matching information of which user was using that connection at that time. The "referring address" is the address of the last web page visited by the user. This information may be sensitive. Note that the Internet address may be much more sensitive for people with permanent Internet addresses who may be uniquely identified.
2.63 "Cookies" are small files stored on the user's computer put there by the web browser at the request of a website. Their purpose is to retain knowledge of user identity and preferences. They are only accessible by the website that originally sent them. Cookie information may be embarrassing if the users have gained access to sensitive or controversial materials online. The privacy risk is that many commercial websites provide cookie information to their advertisers that allows matching of computers or registered users across websites, although this is likely to breach the data protection law, as there is rarely consent from the users.
2.64 We think that the public should be educated as to the potential hazards of computer use and the means to minimise privacy risks. Susan Gindin states that online users should be reminded of the potential security breaches inherent in communications technology, including the possibility of interception by Internet service providers, network administrators, and computer hackers. She says that users should be informed that by participating online they leave an electronic record of their activities which may be utilized by the online services and third parties. Since there is a general lack of awareness of privacy issues among the Internet service providers and Internet users, the publication of practical guidelines by the Privacy Commissioner's Office on measures that can be taken by service providers and Internet users to protect privacy is extremely timely.
2.65 We examine in the following two chapters the extent to which the right of privacy is protected under existing law.
 (1979) 2 EHRR 245.
 Calcutt Report, para 3.18.
 Cl 2(1). See Law Commission, Breach of Confidence (London: HMSO, Cmnd 8388, 1981), paras 6.77-6.82. The draft in the UK Government's Response attempts to balance the freedom of expression against the right to privacy in a similar manner: "Where the [defendant] shows that the conduct complained of was undertaken for a purpose of legitimate public concern, it is for the [plaintiff] to show that his right to privacy outweighs the right to freedom of expression." See Department of National Heritage, Privacy and Media Intrusion (London: HMSO, Cm 2918, 1995), Annex B, para 9(3). The UK Government's Consultation Paper on Infringement of Privacy (1993) remarked that it would be more usual for the defendant to have to make out his defence, without the burden shifting back to the plaintiff: para 5.67.
 Paragraph 3 of Article VII. In essence, it provided that restrictions on rights and freedoms that were imposed by legislation passed after 8 June 1991 should not contravene the ICCPR as applied to Hong Kong.
 Annex I, SS XIII, first paragraph.
 Secretary for Justice v Oriental Press Group, HCMP 407/1998, at 59.
 SR 457 para 24.
 See Dominic McGoldrick, The Human Rights Committee - Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Clarendon Press, 1991), at 461.
 M J Bossuyt, Guide to the "Travaux Préparatoires" of the ICCPR (Martinus Nijhoff Publishers, 1987), p 386.
 General Comment 10/19 of 27 July 1983, para 2.
 K J Partsch, "Freedom of Conscience and Expression, and Political Freedoms", in L Henkin (ed), The International Bill of Rights - The ICCPR (1981), p 210.
 M Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary (Strasbourg: N P Engel, 1993), 349.
 M Nowak, above, 345.
 A member said at a meeting of the UN Commission on Human Rights that "There was all the difference in the world between a system of censorship and a reminder to the journalist of his duties and responsibilities and of the limitations which might be placed upon him in the exercise of the right to freedom of expression." See M J Bossuyt, Guide to the "Travaux Préparatoires" of the ICCPR (Martinus Nijhoff Publishers, 1987), pp 398-9.
 M Nowak, above, pp 351-2.
 Hertzberg v Finland, Doc A/37/40, p 161, para 10.4.
 M Nowak, above, p 354. P van Dijk and G J H van Hoof express the view that the restriction "protection of the reputation or rights of others" is relevant if the protection of individual privacy is called for: P van Dijk and G J H van Hoof, Theory and Practice of the European Convention on Human Rights (Deventer-Boston: Kluwer Law & Taxation Publishers, 2nd edn, 1990), p 423.
 Dudgeon v UK (1981) 4 EHRR 149, para 47.
 X v Sweden, CD, vol 7, p 18.
 Lingens v Austria (1986) 8 EHRR 407, 418.
 Prager and Obershlick v Austria (1995) 21 EHRR 1, 21.
 D J Harris, M O'Boyle & C Warbrick, Law of the European Convention on Human Rights (Butterworths, 1995), at 414.
 Prager and Obershlick v Austria (1995) 21 EHRR 1, at 21.
 Above, at 19 - 20. Although the European Court has held that it is incumbent on the press to impart information and idea on matters of public interest, the "special responsibility" of the press has also been used as an additional argument for the justification of the ban on publication in Handyside v UK (1976) 1 EHRR 737.
 R v Central Television Plc  Fam 192, at 203.
 European Convention on Human Rights, Articles 8(2) and 10(2).
 J Craig & N Nolte, "Privacy and Free Speech in Germany and Canada: Lessons for an English Privacy Tort",  EHRLR Issue 2, p 162, at 163 - 165.
 Barthold v Germany (1985) 7 EHRR 383, para 55.
 Barfod v Denmark (1989) 13 EHRR 493 at 499.
 Markt Intern and Beermann v Germany (1987) 11 EHRR 212 at 234 (European Commission decision).
 Markt Intern and Beermann v Germany (1989) 12 EHRR 161 at 175 (European Court decision).
 Whitney v California, 274 US 357, 375 (1927).
 New York Times Co v US, 403 US 713 at 717 (1971).
82 16A Am Jur 2d, Constitutional Law, SS 491 (footnotes omitted).
 16A Am Jur 2d, Constitutional Law, SS 491.
 L H Tribe, American Constitutional Law (New York: The Foundation Press, 2nd edn, 1988), SS 12-2.
 Associated Press v NLRB, 301 US 103, 132-133, 81 L Ed 953 (1937).
 Chronicle & Gazette Publishing Co Inc, 168 ALR 879, 884.
 58 Am Jur 2d, Newspapers, SS 19 & SS 20.
 58 Am Jur 2d, Newspapers, SS 26. The American Supreme Court does not accept the contention that truthful publication may never be punished consistent with the First Amendment: The Florida Star v BJF 491 US 524, 105 L Ed 2d 443 (1989).
 For a general understanding of freedom of speech, see F Schauer, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1982).
 E Barendt, Freedom of Speech (Oxford: Clarendon Press, 1987) pp 11 and 190 (concluding that "the case for applying for a free speech principle to invalidate actions for privacy is very weak, even where the disclosures are accurate.").
 E Barendt, above, p 189. See also M B Nimmer, "The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy" (1968) 56 Cal LR 935.
 F Schauer, "Reflections on the Value of Truth" (1991) 41 Case Western Reserve LR 699, 707-711.
 E Paton-Simpson, "Human Interests: Privacy and Free Speech in the Balance" (1995) 16 New Zealand Universities L R 225, 237.
 A F Westin, Privacy and Freedom (New York: Atheneum, 1967) 34. See also R Gavison, "Privacy and the Limits of Law" (1980) 89 Yale LJ 421, at 448 and 449-450.
 R Gavison, "Privacy and the Limits of Law" (1980) 89 Yale LJ 421, 455.
 R Gavison, "Privacy and the Limits of Law" (1980) 89 Yale LJ 421, 456.
 R Gavison, "Too Early for a Requiem: Warren and Brandeis Were Right on Privacy vs. Free Speech" (1992) 43 S Carolina L Rev 437 at 469.
 E Paton-Simpson, above, p 234.
 T I Emerson, The System of Freedom of Expression (New York: Random House, 1970), 6-7.
 Z Chafee Jr, Government and Mass Communications (1947) at 34-35; cited in David Lange, "The Speech and Press Clauses" (1975) 23 UCLA Law Rev 77, fn 4.
 E Barendt, "Inaugural Lecture - Press and Broadcasting Freedom: Does Anyone have any Rights to Free Speech?"  Current Legal Problems 63, at 79.
 P Stewart, "Or of the Press", (1975) 26 Hastings LJ 631.
 E Baker, Human Liberty and Freedom of Speech (Oxford University Press, 1989), ch 11.
 Castells v Spain (1992) 14 EHRR 445 at 476.
 V Blasi, "The Checking Value in First Amendment Theory", American Bar Foundation Research Journal (1977), No 3, p 521.
 Mills v Alabama, 384 US 214, 219 (1966).
 Barthold v Germany (1985) 7 EHRR 383.
 Royal Commission on the Press, Final Report, (London, Cmnd 6810, 1977), para 2.2.
 Report of the Committee on Privacy (Chairman: The Rt Hon Kenneth Younger) (London: HMSO, Cmnd 5012, 1972), para 157.
 Above, para 184. In Lea v Justice of the Peace Ltd, The Times, 15 March 1974, the court held that "the press has no right to go upon private property or into private places and intrude upon private people and into private rights, and that the standard of conduct and manners demanded of them is as high a standard as should be demanded of every citizen in a civilised community." See also Francome v Mirror Group Newspapers Ltd  1 WLR 892.
 T I Emerson, above, p 396.
 Cohen v Cowles Media Co, (1991) 115 L Ed 2d 586, 595-6. See 58 Am Jur 2d, Newspapers, SS 20.
113 Dietemann v Time, 449 F2d 244 at 249 (9th Cir, 1971). See also Galella v Onassis, 487 F2d 986 (2d Cir 1973); Houchins v KQED (1978) 438 US 1; 69 ALR4th 1059, 1078.
114 Time, Inc v Hill, 385 US 374 (1967) at 420.
 M Nowak, above, 343.
  AC 273, 315.
 Estes v Texas, 381 US 532, 539 (1965)
 Branzburg v Hayes, 408 US 665, 681 (1971).
 See E Barendt, Freedom of Speech, (Oxford: Clarendon Press, 1987), chapter III.5.
 Article 10.
 Z v Austria, 56 DR 13 (1988); 16A Am Jur 2d, Constitutional Law, SS477. See P van Dijk & G J H van Hoof, Theory and Practice of the European Convention on Human Rights (The Netherlands: Kluwer Law and Taxation Publishers, 1990), at 417-418.
 T I Emerson, above, 394, citing Galella v Onassis, 487 F 2d 986 (2d Cir 1973) as authority.
 The District Court in American Civil Liberties Union v Reno 929 F Supp 824, 830-849 (ED Pa 1996) made extensive findings of fact on the character and dimensions of the Internet. The Supreme Court decision on 26 June 1997 (No 96-511), available at <http://supct.law.cornell.edu/supct/html/96-511.ZO.html>, contains a useful summary of such findings.
 "Note: The Message in the Medium: The First Amendment on the Information Superhighway", (1994) 107 Harvard Law Review 1062, 1082. See also R Wacks, "Privacy in Cyberspace: Personal Information, Free Speech, and the Internet" in P Birks (ed), Privacy and Loyalty (Oxford: Clarendon Press, 1997).
 Above, 1086.
 J Sopinka, "Freedom of Speech and Privacy in the Information Age" - address at the symposium on Free Speech and Privacy in the Information Age held at the University of Waterloo on 26 November 1994; at <gopher://insight.mcmaster.ca:70/00/org/efc/doc/ sfsp/sopinka>, p 1.
 J Sopinka, p 9.
 S E Gindin, "Lost and Found in Cyberspace - Information Privacy in the Age of the Internet" 34 San Diego Law Review, August-September 1997, a draft of which is available at <http://www.info-law.com/lost.html> (visited on 16.12.97).
 Privacy Rights Clearinghouse, "Fact Sheet #18: Privacy in Cyberspace" (1997), at <http://www.privacyrights.org/fs/fs18-cyb.htm>, pp 1-2. "The Internet raises some unique privacy concerns. Information sent over [the Internet] may pass through dozens of different computer systems on the way to its destination. Each of these systems may be managed by a different system operator ("sysop"), and each system may be capable of capturing and storing online communications. Furthermore, the online activities of Internet users can potentially be monitored, both by their own service provider and by the sysops of any sites on the Internet which they visit." Idem.
 S E Gindin, 29.
 See Office of the Privacy Commissioner for Personal Data, Hong Kong, Personal Data Privacy and the Internet - A Guide for Data Users (1998) and Internet Surfing with Privacy in Mind - A Guide for Individual Net Users (1998).