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Preface

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1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of "privacy". The Commission's terms of reference are as follows:

"To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters:

(a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;

(b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong;

(c) intrusion (by electronic or other means) into private premises; and

(d) the interception of communications, whether oral or recorded;

but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence."

2. The Law Reform Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the sub-committee are:

The Hon Mr Justice Vice-President,

Mortimer, GBS (Chairman) Court of Appeal

Dr John Bacon-Shone Director, Social Sciences Research Centre,

The University of Hong Kong

Mr Don Brech Principal Consultant,

Records Management International Limited

Mrs Patricia Chu, JP Deputy Director of Social Welfare (Services),

Social Welfare Department

Mr A F M Conway Chairman,

Great River Corporation Limited

Mr Edwin Lau Assistant General Manager Head of Personal Banking,

HSBC

Mr James O'Neil Deputy Solicitor General (Constitutional),

Department of Justice

Mr Peter So Lai-yin Former General Manager,

Hong Kong Note Printing Limited

Prof Raymond Wacks Professor of Law and Legal Theory,

The University of Hong Kong

Mr Wong Kwok-wah Chinese Language Editor,

Asia 2000 Limited

3. The secretary to the sub-committee is Mr Godfrey K F Kan, Senior Government Counsel.

4. The collection, recording, storage and disclosure of personal data have been addressed in the Law Reform Commission report on Reform of the Law Relating to the Protection of Personal Data published in August 1994. Thereafter, the sub-committee published a consultation paper on the regulation of surveillance and the interception of communications. The Commission report on the regulation of interception of communications was issued in December 1996.[1] It recommends that unauthorized interception of telecommunications or mail be a crime. As regards surveillance, the sub-committee has decided that the civil aspects of invasion of privacy should be looked into before it finalises its recommendations on the regulation of surveillance. This paper deals with civil liability for invasion of privacy. It covers the civil aspects of surveillance as well as other means of intrusions. The criminal aspects of surveillance will be dealt with in the Commission report on Criminal Sanctions for Unlawful Surveillance to be issued later.

5. Since the passing of the Personal Data (Privacy) Ordinance and the establishment of the Office of the Privacy Commissioner for Personal Data, the general public has become more concerned about privacy issues. The 1996-97 Annual Report of the Privacy Commissioner reported that the levels of complaints and enquiries have been significantly above expectations. His office received about 170 enquiries and 4 complaints per week in 1997.[2] The Commissioner noted that violations of personal data privacy can have far-reaching adverse consequences for an individual economically and psychologically.[3] An opinion survey on public attitudes to and preparedness for the Personal Data (Privacy) Ordinance revealed that as a social policy issue, privacy was given an average rating in terms of importance of about 7.6 out of 10. This was lower than unemployment but roughly on par with environmental hygiene, noise pollution and health services.[4]

6. In the year 1995-96, the Hong Kong Journalists Association received many complaints and enquiries related to ethical issues. Half of the written complaints received involved the obtaining of journalistic materials by means which were not straight forward. These complaints involved "human interest" stories. The complainants were unhappy with the use of "undercover" reporting techniques by journalists when they approached their targets.[5] The Association noted that the sharp increase in ethics complaints involving the use of means which are not straight forward is a "worrying trend". The decline in the standard of coverage is also a matter of concern.

7. Instruments of electronic and data surveillance which are highly sophisticated and easy to use are easily accessible to the public at a low price. They may be used by employers, private detectives, reporters and those who have fallen victim to "voyeurism". In order to increase circulation, some sections of the press put more emphasis on exposé journalism and fill their gossip columns with salacious details about people's private lives. The plight of the university student who had been subjected to surreptitious surveillance for 6 months while staying at a university hostel has also illustrated that there is a pressing need to strengthen protection of individual privacy by law.

8. This document is published as a consultation paper together with the Consultation Paper on The Regulation of Media Intrusion.6 All the conclusions and recommendations in this paper are those of the sub-committee. The Commission will reach its own conclusions and recommendations after it has considered the responses to this paper. [1] The Law Reform Commission of Hong Kong, Privacy: Regulating the Interception of Communications (1996).

[2] Office of the Privacy Commissioner for Personal Data, Hong Kong, 1997 Year-End Review.

[3] Office of the Privacy Commissioner for Personal Data, Hong Kong, Annual Report 1996-97, p 3.

[4] Office of the Privacy Commissioner for Personal Data & The University of Hong Kong Social Sciences Research Centre, 1998 Opinion Survey - Personal Data (Privacy) Ordinance: Attitudes and Implementation - Key Findings (1998), p 3.

[5] Hong Kong Journalists Association 28th Anniversary (1996), pp 28-29.

6 The Media Intrusion Paper will examine whether it is necessary to regulate media intrusion by measures other than those in the civil and criminal law.


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