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Chapter 6 - Arguments for and against the creation of a general tort of privacy by statute


6.1 Opponents of a general tort of privacy claim that the concept of privacy is difficult to define. It is inherently vague and imprecise and it means different things to different people. According to Wacks, "privacy" is often confused with confidentiality, secrecy, defamation and the proprietary interest in one's name and likeness. While he acknowledges the need for legal protection of personal information, he argues that the concept of privacy "be refused admission to English law".[250]

6.2 A statutory tort of privacy which is defined in general terms would introduce an element of uncertainty into the law. It would give insufficient guidance to the individual, to legal advisers and the courts. It would also fail to satisfy the "foreseeability test" referred to by the European Court of Human Rights in the Sunday Times case.[251] The Australian Law Reform Commission's Report on Unfair Publication says:

"Many years would necessarily elapse before there were sufficient decided cases to enable the courts to formulate principles. In the meantime there would be considerable uncertainty as to the scope of the general right; what type of infringement it covered, what invasions were considered to constitute unreasonable conduct, what circumstances excused the publication of otherwise private information. These matters are too important to be left in doubt."[252]

6.3 However, uncertainties in the law are not unusual. To decline to reform the law because of the difficulty in defining the wrong is "a doctrine of despair" which could be applied to any proposed legal reform. Creating a general tort of privacy would mean that the legislation should recognise the existence of a general right of privacy and define the circumstances in which civil remedies for invasions of privacy would be available. Such a flexible approach would allow the courts discretion to apply the general principles to the particular facts of the case. The courts are well experienced in balancing conflicting freedoms. They already exercise discretion in interpreting what is "reasonable" in negligence cases and in assessing whether a defamatory statement is "a fair comment on a matter of public interest".[253] In time, a comprehensive body of case law on the right of privacy would be developed for the guidance of the public. The law of privacy developed in such manner would be capable of adapting itself to changing social needs. This approach works well in a number of civil jurisdictions in Europe including Germany, Switzerland and France. There is no evidence that a tort of privacy has led to unwarranted claims or blackmailing action in such jurisdictions.

6.4 It has been argued that complaints about invasions of privacy in Hong Kong are not substantial and that reforming the law of privacy is an excessive response to a minor problem in society. Even if it is true that such complaints are rare, it does not indicate that invasion of privacy is not prevalent. Such rarity may be explained by the fact that many invasions of privacy are, by definition, difficult to uncover. Whereas the victim usually knows when he is assaulted or his property is stolen or damaged, it is unlikely that a person would notice that he is being observed or followed by another. The difficulty in detecting invasion of privacy is particularly acute if the intruder is a professional who has some knowledge of surveillance devices. Unless the information obtained by the intruder is used or disclosed to the public, the victim would have no way to find out that his privacy has been invaded and to take legal action against the intruder.

6.5 Privacy is an important value which should be protected by law as a right in itself and not merely incidentally to the protection of other rights. The Universal Declaration of Human Rights and the ICCPR recognise the right of privacy in somewhat general terms. Creating a new tort would enable the Hong Kong Special Administrative Region to fulfil its obligations under the both the International Covenant and the Basic Law. An explicit commitment to privacy as a legal concept would modify people's behaviour and encourage them to respect and be more sensitive to each other's privacy needs. Liability for invasion of privacy would also have a deterrent effect which would make potential intruders think twice before they act.

6.6 The Calcutt Committee thought that any means of redress should be "as simple, as informal and as speedy as is practicable, while remaining fair".[254] As any legal action in tort is bound to be cumbersome and expensive, the Committee was not persuaded that a tort of infringement of privacy would perform very well against such criteria. Nevertheless, it agreed that the introduction of a new form of legal protection should not be rejected on what are essentially administrative grounds.[255]

6.7 Some have argued that the development of the law of privacy should be left to the courts. Traditional torts such as trespass and nuisance could be developed by the courts to provide better protection to individual privacy. The developments in Canada, Ireland, New Zealand and the United States show that this is possible. However, the English Court of Appeal in Kaye v Robertson stated categorically that there was no tort of invasion of privacy at common law. Although the Court of Appeal in Khorasandjian v Bush[256] held that harassment by unwanted telephone calls was actionable as a private nuisance notwithstanding that the plaintiff had no proprietary interest in the property, the House of Lords in Hunter v Canary Wharf Ltd[257] refused to depart from established principles and held that mere licensees on land do not have a right to sue in private nuisance. Development of the law of privacy by the courts is uncertain both as to timing and as to content. It would be unfair to litigants if they have to incur huge sums of legal expenses to assert what most would regard as a fundamental human right. Glidewell LJ remarked that the facts of the Kaye case were a "graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provisions can be made to protect the privacy of individuals." In Malone v Metropolitan Police Commissioner,[258] Sir Robert Megarry V-C expressed the view that-

"it is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another. At times judges must, and do, legislate; but as Holmes J once said, they do so only interstitially, and with molecular rather than molar motions ... . Anything beyond that must be left for legislation. No new right in the law, fully-fledged with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only Parliament can create such a right."

6.8 In a similar vein, Sir Nicholas Browne-Wilkinson V-C stated:

"[t]he legal difficulties of defining what is privacy and what are the proper defences are too elaborate. The courts, I would have to say, are quite good at some things, but they are not famed for their delicacy of touch, and when you have matters which are a very complicated balancing of imponderables, where the essence of the matter is flexibility, not certainty, I believe, the courts may not be the ideal body to administer it."[259]

6.9 The protection of privacy may conflict with freedom of the press. The news media are concerned that restrictions imposed by a privacy tort would undermine the freedom of speech and inhibit the discovery and dissemination of truth. It has been argued that the right of privacy should not be recognised unless a Freedom of Information Ordinance is in place. The media is also understandably concerned that a tort of privacy could become a means of preventing legitimate publication by way of gagging writs:

"there was concern that the availability of injunctive relief and interdict, which might be sought in particular by unscrupulous people, would undermine legitimate investigative journalism. At an early stage in an investigation a journalist might not have uncovered sufficient evidence to persuade a court that publication should not be prevented; the balance would always favour complainants."[260]

6.10 We acknowledge that freedom of information is important to the well-being of society. But as pointed out by Lyon:

"that is far from saying that the public is entitled to know all the truth about an individual or group. Some area of a man's life is his business alone. ... The law already puts curbs on dissemination of true facts in the area of breach of confidence, criminal libel, copyright and patent. To these we now propose to add curtailment of the use of electronic and photographic devices and the use of information obtained by unlawful methods."[261]

6.11 The Calcutt Report stated:

"Serious investigative journalism would be outside the scope of such a law, especially when exposing serious wrong-doing. There is a clear distinction between infringements of privacy deriving from prurient curiosity and those associated with legitimate journalism. Most people have little difficulty in recognising where the boundary lies."[262]

6.12 In order to give due recognition to freedom of the press, the law may provide for exceptions for disclosure of personal information which is in the public interest. There has been no suggestion that press freedom has suffered in those jurisdictions which provide for an enforceable right of privacy.

6.13 The JUSTICE Report considered two approaches to legislation. One approach would be "to make the minimum adjustments to the existing common law causes of action necessary to extend their effect to the main types of privacy situation which are at present not covered." JUSTICE rejected this approach as being somewhat artificial. It would mean that "well-established and well-defined common law causes of action well adapted to their traditional roles would have to be extended, modified and even distorted to deal with situations of quite a different type."[263]

6.14 Another approach would be to treat the matter piecemeal by reference to particular classes of infringement. If one were to adopt this approach, the classification now accepted in the United States could be used as a point of reference. This approach is attractive but "it is open to the objection that it endeavours to confine a wide subject within limited categories, which may not, in the course of time, prove sufficient. It also fails to recognise adequately that one principle should underlie all these different types of case."264 The JUSTICE Report stated:

"It would seem that the principles which ought to determine the balance of the competing interests of the intruder and the individual are the same in any privacy situation, and that if Parliament can define them for one purpose it can define them for all. We have, therefore, come to the conclusion that legislation ought to create a general right of privacy applicable to all situations, and that to allow flexibility in a changing society the language of such a statute must be general."[265]

6.15 Lyon claims that the lack of a comprehensive law would lead to frustration felt by those who are harmed by intrusion and then find that there is no legal remedy in their case as there is in other cases. If a general tort is in place, it would cover almost all invasions of privacy which could be conceived, including those which have not yet become apparent. "[It] is the principles rather than the methods of intrusion which are of the essence of this problem, and the principles can be decided only in comprehensive legislation."[266]

6.16 The third approach would be to give a wide definition of the right to privacy followed by examples of infringements. The four provinces in Canada which have a statutory tort of violation of privacy adopt this approach. Although none of the privacy statutes contains a definition of right of privacy, all of them give examples of violation of privacy. The British Columbia Act states that "privacy may be violated by eavesdropping or surveillance".[267] The Manitoba Act is more detailed. It provides that privacy may be invaded:

"(a) by surveillance, auditory or visual, whether or not accomplished by trespass, of that person, his home or other place of residence, or of any vehicle, by any means including eavesdropping, watching, spying, besetting or following;

(b) by the listening to or recording of a conversation in which that person participates, or messages to or from that person, passing along, over or through any telephone lines, otherwise than as a lawful party thereto or under lawful authority conferred to that end;

(c) by the unauthorized use of the name or likeness or voice of that person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purposes of gain to the user if, in the course of the use, that person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person; or

(d) by the use of his letters, diaries and other personal documents without his consent or without the consent of any other person who is in possession of them with his consent."[268]

6.17 The UK Consultation Paper commented that the Canadian legislation had the advantage of flexibility and it would still be applicable when society's attitude to aspects of privacy changed. Nevertheless it suggested that this approach was not sufficiently precise and was likely to lead to uncertainty. It preferred a tighter definition which concentrated on the core of privacy and minimised the need to plead defences.[269]

6.18 We are aware that the provisions of the Personal Data (Privacy) Ordinance provide some protection against infringement of privacy. The common law might also be developed to address privacy concerns. But the availability of remedies under the Ordinance and the possible development of the law of torts to cater for privacy concerns do not of themselves preclude us from considering whether it is desirable to introduce a new right of action to protect privacy. Overlap between different causes of action and between civil law and criminal law is not uncommon. The introduction of a new tort should not be ruled out on this ground.

6.19 In view of the fact that no jurisdiction has been able to offer a satisfactory definition of privacy in the statute book, and that a right defined in general terms would make the law uncertain and difficult to enforce, we have decided not to recommend the creation of a general tort of invasion of privacy. We believe that the proper approach is to isolate and specify the privacy concerns in which there is an undoubted claim for protection by the civil law. This would require the establishment, by statute, of one or more specific torts of invasions of privacy which clearly define the act or conduct which unjustifiably frustrates the reasonable expectations of privacy of the individual. In this connection, we note that the Nordic Conference on the Right of Privacy identified the following invasions as falling within a law of privacy:

"(a) Intrusion upon a person's solitude, seclusion or privacy

An unreasonable intrusion upon a person's solitude, seclusion or privacy which the intruder can foresee will cause serious annoyance ... should be actionable at civil law; and the victim should be entitled to an order restraining the intruder. In aggravated cases, criminal sanctions may also be necessary.

(b) Recording, photographing and filming

The surreptitious recording, photographing or filming of a person in private surroundings or in embarrassing or intimate circumstances should be actionable at law. In aggravated cases, criminal sanctions may also be necessary.

(c) Telephone-tapping and concealed microphones

(i) The intentional listening-in to private telephone conversations between other persons without consent should be actionable at law.

(ii) The use of electronic equipment or other devices - such as concealed microphones - to overhear telephone or other conversations should be actionable both in civil and criminal law.

(d) The use of material obtained by unlawful intrusion

The use, by publication or otherwise, of information, photographs or recordings obtained by unlawful intrusion (paras (a), (b), and (c) above) should be actionable in itself. The victim should be entitled to an order restraining the use of such information, photograph or recording, for the seizure thereof and for damages.

(e) The use of material not obtained by unlawful intrusion

(i) The exploitation of the names, identity or likeness of a person without his consent is an interference with his right to privacy and should be actionable.

(ii) The publication of words or views falsely ascribed to a person, or the publication of his words, views, name or likeness in a context which places him in a `false light' should be actionable and entitle the person concerned to the publication of a correction.

(iii) The unauthorised disclosure of intimate or embarrassing facts concerning the private life of a person, published where the public interest does not require it, should in principle be actionable."

6.20 We shall examine in the next four chapters whether the following acts or conduct constitute an unreasonable invasion of privacy, and if so, whether such acts or conduct ought to be actionable as a tort:

a) intrusion upon the seclusion, solitude or privacy of another;

b) unauthorized disclosure of private facts obtained by lawful or unlawful means;

c) exploitation or appropriation of a person's identity or likeness without his consent; and

d) publicity placing someone in a false light.

[250] R Wacks, "The Poverty of Privacy" (1980) 96 LQR 73 at 74.

[251] In Sunday Times v UK (1979) 2 EHRR 245, para 49, the Court held that "a norm cannot be regarded as a `law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail."

[252] Law Reform Commission of Australia (1979), para 233.

[253] The Calcutt Report noted that the absence of a precise or exhaustive definition has not presented insuperable problems in the areas of negligence and defamation. Concepts such as "reasonable man" and "right-thinking members of society" are to be found there in daily use. Calcutt Report, para 12.12.

[254] Calcutt Report, above, para 2.10.

[255] Calcutt Report, above, paras 12.34 and 12.35.

[256] [1993] 3 WLR 476.

[257] [1997] 2 All ER 426.

[258] [1979] Ch 344.

[259] Address to the International Press Institute in 1988, quoted in Calcutt Report, para 12.10.

[260] Department of National Heritage, Privacy and Media Intrusion (London, Cm 2918, 1995), para 4.9.

[261] Younger Report, paras 8 - 9.

[262] Calcutt Report, para 12.25.

[263] JUSTICE, para 127.

264 JUSTICE, para 127.

[265] JUSTICE, para 128.

[266] House of Commons Official Report, 23 January 1970, cols. 888 and 889.

[267] Section 1(4).

[268] Section 3. The lists in the Saskatchewan and Newfoundland legislation are similar but they provide that proof of the conduct stated in the list without the necessary consent is merely prima facie proof of a violation of privacy. See Newfoundland Act, section 4; Saskatchewan Act, section 3.

[269] Lord Chancellor's Department & the Scottish Office, Infringement of Privacy - Consultation Paper (1993), para 5.21. The Paper proposed at para. 5.22 that the new tort be drafted in the following terms: "A natural person shall have a cause of action, in tort or delict, in respect of conduct which constitutes an infringement of his privacy, causing him substantial distress, provided such distress would also have been suffered by a person of ordinary sensibilities in the circumstances of the complainant. A natural person's privacy shall be taken to include matters appertaining to his health, personal communications, and family and personal relationships, and a right to be free from harassment and molestation."

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