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Privacy Law and Policy Reporter
Hong Kong has a large population of so-called ‘domestic helpers’. Some of their employers have recently discovered the attraction of secretly video-recording them at work. This is principally a consequence of the alleged — and in several cases proved — failure of helpers to properly attend to children in their care. While the question of workplace privacy is assuming greater significance, the question of employees in the home has so far generated little interest.
I want here briefly to consider whether, under Hong Kong law, it is lawful for a suspicious employer of a domestic helper to engage in the clandestine recording of the employee’s contractual duties.
Parents have an understandable desire to curb acts of violence against their children whose welfare the employee is charged to protect, and a number of helpers have been convicted of offences captured on video. In September this year a Filipina maid admitted assaulting a toddler and was sentenced to two months’ imprisonment, suspended for two years. In May 1999 an Indonesian maid received a two month custodial sentence after pleading guilty to a charge of cruelty to a child causing unnecessary suffering. The video showed the maid punching a two year old boy in the face and the thigh before swinging him on to a sofa. Another helper was dismissed after a hidden video camera allegedly captured her abusing a 15 month old boy in August 1999.
Monitoring the activities of workers, or indeed anyone, will inevitably apprehend some in flagrante delicto, but ought such intrusions be permissible in a civilised society? To ask a narrower question, in the absence of effective common law protection of privacy,can a domestic helper seek the protection of Hong Kong’s Personal Data (Privacy) Ordinance?
The matter is less than clear. While the first of the data protection principles (DPP1) provides that personal data shall be collected by means that are both lawful and fair, s 52 exempts from the provisions of DDPs the ‘personal data held by an individual and ... concerned only with the management of his personal, family or household affairs ...’. It is thus arguable that, since such data are held for such domestic purposes, the exemption applies and the recording of these activities is permissible.
This proposition cannot, I think, be sustained; first, because attention must be paid to the word ‘held’ in s 52, and secondly, because while at first blush the concept of ‘personal, family or household affairs’ appears to cover a snooping employer’s conduct, it does not.
Before considering these points, it is essential to grasp several significant features of the Ordinance’s complex scheme of exemptions in Pt VIII and to set s 52 in this context. In particular, it must be recognised that although the exemptions differ in their precise content, they are all premised on the existence of factors that render impractical or undesirable the strict enforcement of three rights to which a data subject would otherwise be entitled:
Section 52, however, is substantially wider than the other exemptions in Pt VIII. It alone extends the exemption beyond the above three rights to include all six data protection principles, the need for data user returns (under Pt V), and the Commissioner’s powers of investigation and inspection (under ss 36 and 38).
On the other hand, s 52 is narrower than the other exemptions in that they are stated to apply to ‘data users’, while s 52 applies only to ‘individuals’. In other words, although the other exemptions apply to both natural and legal persons, the exemption contained in s 52 is expressly limited to the former. However, as I shall suggest below, this may not necessarily be a significant factor in determining the intention of the legislature in respect of both the nature and scope of this section.
Four other points in respect of exemptions should be noted:
In respect of my two arguments mentioned above, in the case of most of the exemptions, the Ordinance refers to data ‘held’ for various purposes (ss 52, 54, 56, 57, 58, 61). Where this term is not used (ss 53, 55, 59, 60, 62) it is implied that the exemption applies to the holding or storage of the data rather than to the process of their collection. While it is axiomatic that data must be collected before they can be held, I believe that this language is an important feature of Pt VIII of the Ordinance, at least in respect of its scope. I return to this question below.
It would be unwise to suppose that the relationship between the collection and the holding of data is a simple one. The holder of data will invariably have ‘collected’ the data — even if the physical act of collection has not been carried out personally by them. Thus an employer may not personally record the activities of an employee by means of a hidden video camera, but once the data stored on the video or disk are given to him or her, the employer has ‘collected’ the data. The collector of data, on the other hand, may not necessarily ‘hold’ the data for, as in the example just mentioned, the individual who records the data divests him or herself of it when the video or disk is handed to the employer (who now ‘holds’ the data).
It is therefore the case, but not ineluctably so, that where the Ordinance uses the term ‘hold’ or ‘held’, the ‘collection’ of the data is implicitly contemplated. In the case of Pt VIII, however, it seems reasonably clear (though this may be a drafting oversight) that the exemptions are intended to apply to data that are already held.
If this view is correct, then it would seem that the effect of s 52 is not to exempt from the DPPs the act of collection, and hence DPP1’s requirement that such collection be lawful, fair, and not excessive would apply — even in the case of data held for domestic purposes. Indeed, this appears to have been accepted to be the law in the case of a peeping tom who made secret video recordings of a student dressing and undressing in a university hall of residence. The data may well have been held for ‘personal’ or even ‘recreational’ purposes, but its collection was nevertheless found to have infringed DPP1.
The consequence of this interpretation of the exemptions is that should a prying employer of a domestic helper choose to engage in the surreptitious recording of babysitting activities, such recording could fall foul of DPP1 — regardless of whether s 52 is thought to exempt data ‘held’ for domestic purposes from the operation of the DPPs.
Indeed, the artificiality of a converse interpretation may be demonstrated by the example of a couple with a domestic helper. Suppose that the wife suspects that the helper is abusing their child and furtively monitors her conduct. The husband, who is the contractual employer, though he does not actually engage in the physical collection of the data, is both the holder of the data and its collector once it becomes part of the record of his employee’s activities. To treat one party as the collector and the other as the holder is to strain the natural meaning of these terms, even if their roles are different.
In another respect the language of s 52 may appear to point towards an interpretation that includes the employment of domestic helpers within the ambit of the exemption. The terms ‘domestic’, ‘personal’, and ‘household affairs’ do seem to convey the impression that the legislature had in mind this activity, in contradistinction, perhaps, to those of the personnel departments of companies. But I do not believe that this is a correct reading of the section.
Section 52 has, I believe, a different purpose. Though this fact is of limited relevance (and admissibility!) in a strictly legal sense, the import of what is now s 52 was clear to members of the Law Reform Commission’s Sub-Committee on Privacy in our recommendations that led to the enactment of the Ordinance. We took the view that personal data held by a private individual in respect of personal or family matters ought not to be subject to the regime of fair information practice established by the legislation. This was largely because, provided these data were used for domestic purposes, they carried little or no risk of harm to the persons to whom such data related. To attempt to regulate this sphere of activity (by, for example, granting these data subjects a right of access to these items of personal data) would, moreover, constitute an unwieldy intrusion into the private domain — a paradoxical consequence for ‘privacy’ legislation to engender!
The principal instances of this form of domestic data to which the Sub-Committee referred were personal communications and lists of names and addresses that might be used by an individual for the purpose of sending Christmas cards. Section 52, if its intention was to achieve this objective, is therefore designed to exempt genuinely household related information from the DPPs. Further support for this position may be found in s 52’s singular use of the term ‘individual’ (as opposed, in most of the other exemptions, to the express formulation either of ‘data user’ or its implied equivalent). This factor underlines the intention of the legislature to limit the range of the exemption to authentic household matters, as argued above.
The employment of domestic helpers in Hong Kong is, moreover, a conspicuous feature of economic activity in Hong Kong, governed (unusually for the territory) by legislation. Such employment is not a matter of the casual engagement of workers for temporary or part-time assistance in the home (such as is the case in respect of so-called charladies in Britain), but assumes an important function in liberating thousands of Hong Kong women to join the workforce. This social and economic reality is not, of course, directly relevant to the construction of the Ordinance, but it lends support to the view I have postulated of the limited reach of s 52.
Personal data relating to a domestic helper held by their employer in the normal course of employment are, I suggest, not exempted from the DPPs under s 52. The scope of the s 52 exemption is restricted in the manner I have suggested above. Even if I am wrong on this point, the surveillance by employers of the activities of their helpers at home is, in any event, caught by DPP1 since it involves the collection of personal data, rather than data being held (the focus of the exemptions in Pt VIII of the Ordinance). Domestic helpers, despite their being employed in the home, ought not to be distinguished in this respect from employees in general. Their personal data warrant equal protection.
The increasing use of surveillance in the workplace is changing not only the character of that environment, but also the very nature of what we do and how we do it. The knowledge that our activities are, or even may be, monitored undermines our psychological and emotional integrity. Indeed, the slide towards electronic panopticism may fundamentally alter our relationships and our identity. In such a world, employees are less likely to execute their duties effectively or, at least, with genuine dedication and commitment. If that occurs, the snooping employer will, in the end, secure the precise opposite of what they hope to achieve.
Raymond Wacks is Professor of Law and Legal Theory at the University of Hong Kong. He is a member of the PLPR Editorial Board.
pp 209-216. There is, of course, always the device of incorporating a term in the contract of employment. In the present context, however, there is little equality of bargaining power, and the relationship is governed by a standard form contract. See Report Published under Section 48(2) of the Personal Data (Privacy) Ordinance (Cap 486), Report No R97-1948, 13 October 1997. The plaintiff was awarded $50,000 damages for injury to feelings, $20,000 exemplary damages, and $10,000 aggravated damages in the first case involving the tort of sexual harassment under s 76 of the Sex Discrimination Ordinance of 1996: Yuen Sha Sha v Tse Chi Pan  Equal Opportunities Action No 1, DCE01/98.  Law Reform Commission of Hong Kong, Report on Reform of the Law Relating to the Protection of Personal Data 1994. I should declare that I was a member of the sub-committee that produced the report, and, since 1999, its chairman. I am also a member of the Personal Data (Privacy) Advisory Committee. The views expressed here are personal. In September 2000 the PCO published a Code of Practice on Human Resource Management that does not appear to exclude domestic helpers from its ambit.