5.1 We have briefly reviewed the law of privacy in Australia, Canada, China, France, Germany, Ireland, New Zealand, United Kingdom and the United States of America. Their experience is instructive and has shaped some of our proposals in the following chapters.
5.2 Australian law does not recognise infringement of privacy as an independent basis for civil liability. However the courts have held that if information is obtained during a trespass by, for instance, taking photographs or film, the court has jurisdiction to grant an injunction to prevent its publication. Such an injunction will be granted only if publication would in the circumstances be unconscionable, if the plaintiff will otherwise suffer irreparable damage, and if the balance of convenience favours the grant of an injunction.
5.3 The South Australian Privacy Bill 1973 - Two attempts had been made to enact legislation for the creation of a general right of privacy. The first was the South Australian Privacy Bill 1973 which provided that every person has a right of privacy, any infringement of which should be actionable without proof of special damage. The term "right of privacy" was defined as "the right of a person to be free from a substantial and unreasonable intrusion upon himself, his house, his family, his relationships and communications with others, his property and his business affairs". Some specific matters were mentioned, including disclosure of facts likely to cause distress, annoyance or embarrassment and the use of a person's name, identity or likeness for another's advantage. The Bill was defeated in the Legislative Council.
5.4 The Tasmanian Privacy Bill 1974 - The second attempt was the Tasmanian Privacy Bill 1974 which made it unlawful for any person to violate the privacy of an individual or, knowing or having reasonable cause to suspect that the privacy of any individual has been violated, to make use of that violation to his own advantage or to the detriment of that individual. A violation of privacy under the Bill would be a tort actionable by the individual concerned without proof of special damage. The definition of privacy was similar to that in the South Australian Bill. This bill was not enacted into legislation.
5.5 Law Reform Commission of Australia - The Australian Law Reform Commission produced in 1979 a report on unfair publication which covered defamation and privacy. The Commission was not persuaded that it was appropriate to create a general tort of invasion of privacy. But they found the idea of creating a specific and closely circumscribed tort of privacy attractive. They concluded that legislation should specify the area in which there is an undoubted claim for privacy protection. In their opinion, only "serious, deliberate exposures of a person's home life, personal and family relationship, health and private behaviour" should be made unlawful by legislation. It is reported that the recommendations have not been implemented, in the absence of a consensus on a uniform defamation law.
5.6 The issue of creating a general tort of privacy was also discussed in the report on personal information and privacy published by the Australian Law Reform Commission in 1983. The report concluded that a general tort of interference with privacy was undesirable at that stage.
5.7 In December 1995, the Australian Privacy Charter Council launched a charter of privacy rights for Australians which declares that: "People have a right to the privacy of their own body, private space, privacy of communications, information privacy (rights concerning information about a person), and freedom from surveillance."
5.8 Invasion of privacy per se is not a tort recognised by the courts in Canada. To maintain an action for acts which constitute an invasion of privacy, the plaintiff has to show that the defendant has committed some well-established tort such as trespass, nuisance, defamation, injurious falsehood and deceit. However, there are indications that the courts are prepared to stretch the scope of a particular tort so as to bring within the ambit of such tort acts which would otherwise be legitimate, on the ground that such acts amount to an invasion of privacy of the plaintiff.
5.9 In Motherwell v Motherwell the Alberta Court of Appeal held that the constant making of telephone calls to harass the plaintiff's family was an actionable nuisance. It stated that even persons who did not have any legal or equitable interest in the land where the nuisance was suffered would be entitled to relief on the ground that what occurred was an invasion of privacy. Similarly, in Poole v Ragen and Toronto Harbour Commissioners, the defendant was held liable for watching and besetting the plaintiff's boats. Although the technical ground of liability was nuisance, the underlying reason for liability was that persistent and unwarranted surveillance constituted "an affront to the dignity of any man or woman".
5.10 Although there is no tort of invasion of privacy as such, the courts have ruled that there is a tort of "appropriation of personality" at common law. This tort is actionable where "the defendant has appropriated some feature of the plaintiff's life or personality, such as his face, his name or his reputation, and made use of it improperly, i.e., without permission, for the purpose of advancing the defendant's own economic interests."
5.11 Four provinces in Canada have enacted privacy legislation. They are British Columbia, Manitoba, Newfoundland and Saskatchewan. These statutes create the tort of "violation of privacy" which is actionable without proof of damage. They aim at correcting the failure of the common law to develop a general tort remedy for invasion of privacy. While the Manitoba, Newfoundland and Saskatchewan statutes create a general tort of invasion of privacy which includes appropriation of personality, the British Columbia legislation creates two separate torts, namely, invasion of privacy and appropriation of personality. Fridman observes that not many cases have been reported on these Privacy Acts and there has been very little judicial comment on their meaning and scope.
5.12 Invasion of privacy is actionable in Quebec. A Quebec court held that the right to privacy under the Quebec Charter of Human Rights and Freedoms includes two facets: (a) the right to anonymity or to live one's life without interference and (b) the right to solitude. Further, it was not necessary for the plaintiff to prove that he suffered pecuniary loss. He had to prove only that there had been an "unjustified publication of information of a purely personal nature".
5.13 Mainland China - The Constitution of the People's Republic of China stipulates that the "personal dignity" and "residences" of citizens are inviolable and that citizens' "freedom and privacy of correspondence" are protected by law. The General Principles of Civil Law further provides that: "All citizens and legal persons are entitled to the right to reputation. The personal dignity of citizens is protected by law. The use of insults, defamatory statements and other means to damage the reputation of citizens and legal persons is prohibited." In the opinion of the Supreme People's Court, a person who uses such means as giving publicity to the private facts of another in writing or in spoken words, or publicly subjecting the personality of another to ridicule by the fabrication of facts, or using insults or defamatory statements to damage the reputation of another, should be liable for infringement of the right to reputation if his conduct has caused special damage. The Supreme People's Court further advises that a person who publishes the private facts of an individual, or gives publicity to the same in writing or in spoken words, without the permission of that individual so that his reputation has been damaged may be tried for infringement of the right to reputation.
5.14 Taiwan - The Civil Code in Taiwan protects the right of personality. The right seeks to protect the intrinsic value and dignity of man and to maintain the integrity and inviolability of his personality. It includes the right to life, physical body, health, freedom, reputation, name, privacy, likeness, secrecy and honour. Anyone whose right of personality is infringed by another may apply to the court for relief.
5.15 Article 1382 of the Civil Code provides that any person who by his fault causes damage to another is under an obligation to repair that damage. The claimant is required to show that the victim has suffered harm. This has been taken to include non-pecuniary harm such as injury to human feelings. The courts have characterised as "fault" the publication of confidential letters, the dissemination of facts about a person's private life, or the unauthorized use of a person's name.
5.16 In 1970 a right of privacy was specifically created by virtue of Article 9 of the Civil Code. The Article provides that "everyone has the right to respect for his private life" and that the courts may grant such relief as is appropriate to prevent or stop an invasion of privacy. No definition is given to the concept of "private life" but it has been held to include "any references to the plaintiff's love life or family life and to extend to disclosure of the private address or telephone number of a public figure, or the revelation of an individual's salary." It seems that the definition of private life extends to any fact which the plaintiff does not wish to have revealed. In determining whether the right of privacy has been infringed, the courts would take into account the freedom of expression and freedom of the press.
5.17 Article 1 of the Federal Constitution of 1949 imposes on all state authorities a duty to respect and protect "the dignity of man". Article 2 provides that "Everyone shall have the right to the free development of his personality in so far as it does not infringe the rights of others or offend against the constitutional order or the moral code." This general right of personality provides an alternative way of protecting the right not to be defamed or the right to prevent the unauthorized use of a person's name.
5.18 In addition to the protection under the Constitution, an invasion of privacy is actionable under paragraph 1 of Article 823 of the Civil Code. It provides:
"A person is obliged to pay compensation for either negligently or intentionally violating the life, health, freedom, property or any other right of another where:
(i) there has been an act that has violated an interest and caused damage;
(ii) the violation of the right is unlawful and not justified;
(iii) it was caused by intentional or negligent fault."
5.19 The Federal Court has held that a person's right to his personality is an "other right" under the paragraph. This enables the courts to apply the law of tort against conduct injurious to human dignity such as the unauthorized publication of the details of a person's private life. The courts have held it actionable to use the name of a famous artiste in an advertisement without his consent, to publish a fictitious interview with a well-known figure, to publish a picture which gave the impression that the person portrayed was a murderer, or to make an inaccurate or incomplete report in a newspaper.
5.20 Irish courts do not explicitly recognise a general right to privacy at common law. Privacy interests are protected by a wide range of torts such as trespass, nuisance and the equitable remedy of breach of confidence. However, the courts have developed a constitutional right to privacy on the basis of Article 40.3.1 of the Constitution under which the State guarantees to respect, defend and vindicate the personal rights of the citizen. The Supreme Court in McGee v The Attorney General held that privacy was among the personal rights which the State guarantees in the Article. Although two of the three judges in the majority specifically limited their treatment of privacy to the field of marital relations, subsequent cases have indicated that the Article affords some protection against threats to privacy posed by interception of communications and surveillance.
5.21 The Irish Law Reform Commission published a consultation paper on Privacy: Surveillance and Interception of Communications in 1996. It contains a draft Surveillance Privacy Bill which aims at protecting the privacy of the individual from intrusive surveillance. The Paper recommends the creation of statutory torts of invasion of privacy by means of surveillance, and disclosure or publication of information obtained by means of privacy-invasive surveillance.
5.22 Privacy interests were protected only if the plaintiff had a cause of action in other heads of tortious liability. Nevertheless the courts had indicated that they were prepared to listen to the argument that there was in New Zealand a separate tort of invasion of personal privacy at least by public disclosure of private facts. In interlocutory proceedings in Tucker v News Media Ownership Ltd, the court stated that the common law may adapt the Wilkinson v Downton principles to protect privacy. Eventually in Bradley v Wingnut Films Ltd, the court held that the tort of invasion of privacy formed part of the law of New Zealand. If the tort is to be established, there must be public disclosure of private facts and the disclosure must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibility. It appears that there is a trend on the part of New Zealand courts towards recognizing a right to privacy.
5.23 The court in Kaye v Robertson held that there was no right of action for breach of privacy. Actions for infringement of privacy have to be founded on recognised heads of tortious liability. While protection from physical intrusion is to a certain extent afforded by the torts of trespass and nuisance, information privacy is mainly safeguarded by the Data Protection Act 1984 as well as the law of defamation, copyright and breach of confidence. The protection as is available at common law is patchy and ineffective.
5.24 As early as in 1931, Winfield proposed that the "offensive invasion of the personal privacy of another" should be recognised as an independent tort. The following is an outline of the legislative proposals made in the United Kingdom for the better protection of individual privacy.
1961 Lord Mancroft presented a Right of Privacy Bill in the House of Lords in February 1961. The object of the Bill was to protect a person from unjustifiable publication relating to his private affairs. It was given a Second Reading but withdrawn at the end of the debate to go into Committee.
1967 Alexander Lyon presented another Privacy Bill in February 1967. The Bill was introduced in the House of Commons under the Ten-minute Rule. It was given its First Reading but made no further progress.
1969 Brian Walden presented a Privacy Bill in November 1969. It was withdrawn after Second Reading debate upon the Government undertaking to carry out a detailed examination of the subject of privacy. The Bill was identical to that produced by JUSTICE in 1970.
1970 The Committee on Privacy of "JUSTICE", the British Section of the International Commission of Jurists, published a report on Privacy and the Law in January 1970. They concluded that legislation ought to create a general right of privacy applicable to all situations. The report included a draft Right of Privacy Bill.
1972 The National Council for Civil Liberties ("NCCL") submitted a draft Right of Privacy Bill to the Younger Committee for consideration. The Younger Report concluded that, on balance, there was then no need for a general law of privacy. However, it recommended the creation of a tort of unlawful surveillance which should be actionable without proof of actual damage. It also suggested that it should be a tort to disclose or use information which the discloser knows or ought to have known was obtained by illegal means. The recommendation on the tort of unlawful surveillance was not implemented but the proposal on disclosure of information obtained by illegal means was accepted by the English Law Commission as one of the recommendations in its report on breach of confidence.
1987 William Cash presented a Privacy Bill in 1987 which was virtually identical to the Walden and JUSTICE Bills. It did not receive a Second Reading.
1989 John Browne introduced the Protection of Privacy Bill. It sought to confer remedies for the unauthorized public use or public disclosure of private information rather than a general right for the protection of privacy. Although it passed Committee stage, it was withdrawn at Report stage when the Government announced that it was appointing a committee, to be chaired by David Calcutt QC, to consider what measures were needed to give further protection to individual privacy from the activities of the press.
1989 Lord Stoddart introduced a Bill which was identical to the Browne Bill. It did not receive a Second Reading.
1990 The Calcutt Committee published a report entitled Report of the Committee on Privacy and Related Matters in 1990. It concluded that an overwhelming case for then introducing a statutory tort of infringement of privacy had not been made out.
1993 Sir David Calcutt QC concluded in his Review of Press Self-Regulation published in January 1993 that press self-regulation under the Press Complaints Commission had not been effective. He recommended that the Government should give further consideration to the introduction of a new tort of infringement of privacy.
1993 The National Heritage Committee of the House of Commons published a report on Privacy and Media Intrusion in March 1993. They were dissatisfied with the way the Press Complaints Commission had dealt with the complaints and recommended a Protection of Privacy Bill with both civil and criminal provisions. The first part of the Bill listed various civil offences leading to a tort of infringement of privacy.
1993 In July 1993, the Lord Chancellor's Department and the Scottish Office issued a consultation paper on Infringement of Privacy ("the UK Consultation Paper"). The paper dealt with the question whether there should be a general civil wrong of infringement of privacy.
1995 The UK Government's response to the National Heritage Committee Report and the 1993 Consultation Paper was contained in a paper entitled Privacy and Media Intrusion published in July 1995. The paper revealed that the Government strongly preferred the principle of self-regulation. It concluded that statutory intervention in this area would be a significant development of the law and the Government then was not convinced that the case had been made out for it.
1996 Sir Patrick Cormack presented the Protection of Privacy (No. 2) Bill in the House of Commons in March 1996. The object was to create an offence to sell or buy tapes or transcripts of private conversations without the consent of both parties.
1998 The UK Government introduced the Human Rights Act 1998 which incorporates the European Convention on Human Rights into English law.
5.25 The position in Scotland is slightly different from that in England and Wales. Scottish decisions seem to be moving towards the recognition of an explicit right of action for invasions of privacy. Seipp summarises the position as follows:
"In addition to warrantless searches and the activities of peeping Toms, police surveillance of a dwelling-house without probable cause has been considered to give rise to a cause of action. Scottish courts based their refusal to allow publication of private letters on the grounds of injury to reputation and to feelings, rather than on the property grounds maintained by English courts ... . Scottish law carried privacy protection furthest in opposition to press intrusions, settling by the mid-nineteenth century that damages could be awarded for publications of truthful information about `some old and generally forgotten immoral act or act of impropriety' or `some physical deformity or secret defect'. Personal ridicule was only allowed ... `so long as the privacy of domestic life is not invaded'. ... These cases proceed on the broad principle of the actio injuriarum, which affords remedies for affronts to reputation, honour, and feelings. Privacy has fitted well within this scheme of values in Scottish law."
5.26 Although both the Constitution and the law of tort in the United States protect an individual's right to privacy, privacy as guaranteed by the Constitution is different in nature from privacy as protected by the law of torts. While constitutional privacy rights protect against acts by the Government, tort law privacy rights primarily protect against acts by private parties. The common law right operates as a control on private behaviour, while the constitutional right operates as a control on Government.
5.27 Constitutional privacy affords protection against the following types of intrusion:
a) Government intrusion into a person's mind and thought processes and the related right to control information about oneself.
b) Government intrusion into a person's zone of private seclusion. For example, the Government is precluded from unreasonable search and seizure within that zone of seclusion.
c) Government intrusion into a person's right to make certain personal decisions in relation to marriage, procreation, contraception, family relationships and child rearing and education.
5.28 The development of the law of privacy in the United States was influenced by the seminal article written by Warren and Brandeis in 1890. They argued that common law implicitly recognised the right to privacy by drawing upon English cases of defamation, property, breach of copyright, and breach of confidence. They concluded that "the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone", and that "the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds." The ideas propounded in the article were subsequently taken up and developed by the courts in most jurisdictions in the United States.
5.29 The law of privacy as developed in the United States comprises four distinct kinds of invasions of four different interests of the individual.
(a) Invasion of privacy by intrusion upon the plaintiff's solitude or seclusion
The tort of "intrusion upon seclusion" consists of intrusion (physical or otherwise) upon the solitude or seclusion of another or his private affairs or concerns which is highly offensive to a reasonable person. This tort requires proof of an unauthorized intrusion or prying into the plaintiff's seclusion which is offensive to a reasonable person as to a matter which the plaintiff has a right to keep private.
(b) Invasion of privacy based on public disclosure of private facts
The "disclosure" type of tort of invasion of privacy consists of publicity of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation. It is triggered by the public disclosure of private facts in which the disclosure is highly offensive to a reasonable person. The facts disclosed are true, and no element of falsity is involved.
(c) Invasion of privacy by appropriation of name or likeness
The appropriation form of invasion of privacy consists of appropriation of the plaintiff's name or likeness for the defendant's benefit or advantages. It usually involves the unauthorized commercial use of a person's identity which causes injury to dignity and self-esteem with resulting mental distress damages. The plaintiff may seek a remedy under this head if his name or picture, or other likeness, has been used without his consent to advertise the defendant's product, or to add lustre to the name of a company, or for any other business purposes.
(d) False light in the public eye
It consists of publicity which places the plaintiff in a false light in the public eye. Examples of this form of invasion include publicity attributing to the plaintiff some opinion, such as spurious books or articles; the unauthorized use of the plaintiff's name on a petition, or as a candidate for office; and the use of the plaintiff's picture to illustrate an article with which he has no reasonable connection, with the implication that such a connection exists. The false light must be something that would be objectionable to the ordinary reasonable person in the circumstances. Further, the invasion must be intentional such that the defendant must knew or had reason to know that the invasion would be highly offensive and would cause severe mental stress. The false light is more often than not a defamatory one but the making of defamatory statement is not an element of this tort.
5.30 The experience in other jurisdictions shows that although the difficulties of defining and drafting a general tort of privacy may be enormous, drafting specific torts which address the specific privacy interests should be neither formidable nor intractable. We examine in the next chapter whether a general tort of privacy should be created by statute in Hong Kong.
 Lincoln Hunt Australia Pty Ltd v Willesee  4 NSWLR 457.
 Law Reform Commission of Australia, Unfair Publication: Defamation and privacy (Report No. 11, Canberra, 1979), para 221.
 Law Reform Commission of Australia, Unfair Publication: Defamation and privacy (Report No. 11, Canberra, 1979), para 222.
 Part III.
 Para 234.
 Law Reform Commission of Australia, Privacy (Report No 22, Canberra, 1983), vol. 2, paras 1075 - 1081.
 The text of the Australian Privacy Charter is reproduced in G Greenleaf, "Information Technology and the Law" (1995) 69 ALJ 90.
 L D Rainaldi (ed), Remedies in Tort, (Toronto: Carswell, 1987), vol 3, chapter 24 (by A E Cullingham); G H L Fridman, The Law of Torts in Canada, (Toronto: Carswell, 1990), vol 2, chapter 9.
 Victoria Park Racing and Recreational Grounds Co v Taylor (1937), 58 CLR 479.
 (1976) 73 DLR (3d) 62.
 (1958) OWN 77.
 G H L Fridman, 194.
 He suggested that it was an error to restrict jurisdiction over this cause of action to the superior courts: above, p 201.
 See L D Rainaldi, p 24-13, para 6.1.
 Articles 38 - 40.
 Article 101.
 Supreme People's Court's Tentative Opinion on the Enforcement of the PRC General Principles of Civil Law, 26 January 1988, para 140.
 Supreme People's Court's Answers to Questions about the Trial of Reputation Cases, 7 August 1993, Question 7.
 Articles 18, 184 & 195.
 Law Reform Commission of Ireland, Consultation Paper on Privacy: Surveillance and the Interception of Communications (1996), paras 9.2 - 9.4; Report of the Committee on Privacy and Related Matters ("Calcutt Report"), (London, Cm 1102, 1990), paras 5.11 - 5.15; Younger Report (1972), 308 - 309.
 Konrad Zweigert & Hein Kotz, Introduction to Comparative Law, (Oxford: Clarendon Press, 2nd rev edn, 1987) vol. II, 387.
 R Redmond-Cooper, "The Press and the Law of Privacy" (1985) 34 ICLQ 769, at 771.
 Law Reform Commission of Ireland, (1996), paras 9.5 - 9.8; Report of the Committee on Privacy and Related Matters ("Calcutt Report"), (London, Cm 1102, 1990), paras 5.16 - 5.21; B S Markesinis & S F Deakin, Tort Law (Oxford: Clarendon Press, 3rd edn, 1994), 608.
 Quoted in Law Reform Commission of Ireland (1996), para 9.5.
 Konrad Zweigert & Hein Kotz, Introduction to Comparative Law, (Oxford: Clarendon Press, 2nd rev edn, 1987) Vol. II, 384.
 B M E McMahon & W Binchy, Irish Law of Torts, (Dublin, Butterworths (Ireland), 2nd edn, 1990), chapter 37; Law Reform Commission of Ireland, Consultation Paper on Privacy: Surveillance and the Interception of Communications (1996), chapters 3 & 4.
  IR 284.
 Law Reform Commission of Ireland (1996), paras 3.5 - 3.8.
 S M D Todd (ed), The Law of Torts in New Zealand (Sydney: The Law Book Co Ltd, 1991), chapter 18; J Katz, "Sex, Lies, Videotapes and Telephone Conversations: The Common Law of Privacy from a New Zealand Perspective"  1 EIPR 6.
  2 NZLR 716, at 733. The Wilkinson v Downton principles are stated in the following terms: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it": Restatement, 2d, Torts, SS 46.
  1 NZLR 415, 423.
  FSR 62, CA.
 See Chapter 4.
 P H Winfield, "Privacy" (1931) 47 LQR 23, at 41.
 JUSTICE, Privacy and the Law (London, Stevens and Sons, 1970).
 Report of the Committee on Privacy and Related Matters, (London, Cm 1102, 1990).
 D Calcutt, Review of Press-Regulation (London, Cm 2135, 1993).
 National Heritage Committee, Privacy and Media Intrusion (London: HMSO, 294-I, 1993).
 Lord Chancellor's Department & the Scottish Office, Infringement of Privacy - Consultation Paper (1993).
 Department of National Heritage, Privacy and Media Intrusion - The Government's Response (London, Cm 2918, 1995).
 D J Seipp, "English Judicial Recognition of a Right to Privacy" (1983) 3 Oxford J of Legal Studies 325, at 366 - 367.
 J T McCarthy, The Rights of Publicity and Privacy (Clark Boardman Callaghan, 1994), SS 5.7[B].
 J T McCarthy, SS 5.7[C].
 "The disclosure strand of the [constitutional] privacy interest ... includes the right to be free from the government disclosing private facts about its citizens and from the government inquiring into matters in which it does not have a legitimate and proper concern." See Ramie v City of Hedwig Village, Texas, 765 F2d 490, 492 (5th Cir 1985), quoted in J T McCarthy, SS 5.7[C].
 S D Warren and L D Brandeis, at 205 - 206.
 J T McCarthy, SS5.8.
 W P Keeton (ed), Prosser and Keeton on Torts (Minn, St Paul, West Publishing Co, 5th edn, 1984), p 863 et seq.
 B S Markesinis, "Our Patchy Law of Privacy - Time to do Something about it" (1990) 53 MLR 802, at 807; B S Markesinis, "The Calcutt Report Must Not be Forgotten" (1992) 55 MLR 118. Markesinis said that the type of facts litigated in the Kaye case had led to liability (in many instances both criminal and civil) in many countries.