The Hong Kong Privacy Commissioner for Personal Data (“Commissioner”) examined the relationship between freedom of the press and personal data (“PD”) in the context of paparazzi and the Personal Data (Privacy) Ordinance (“PDPO”) in Reports R12-9159 [pdf] and R12-9164 [pdf]. The appeals to the Commissioner’s decisions were dismissed by the Administrative Appeals Board (“AAB”) in Appeal Nos 5/2012 [pdf] and 6/2012 [pdf].
The publishers were found to have contravened the PDPO by engaging paparazzi to take photographs of artists in their residences with long lens cameras.
Facts
The cases involved artists of a Hong Kong television station. The artists denied allegations of them cohabiting with their respective partners. Two magazines under the same media group retained paparazzi to take photographs with long focus lens showing the activities of the artists at the two residences. The publishers of magazines claimed that the artists are idols and role models, and it is in the public interest to expose their dishonesty.
- In R12-9159, paparazzi took photographs of the inside of a 21st floor residence from around 1,000 meters away. The photographs showed a male artist in the nude with a female artist.
- In R12-9164, paparazzi trespassed on restricted government land to take photographs of the inside of a residence from around 80 meters away. The photographs showed a male artist and female artist engaging in intimate acts.
The Commissioner’s Findings
News gathering is regulated by the PDPO: The Basic Law of Hong Kong guarantees the freedom of speech, of the press, and of publication. However, these freedoms are not absolute as the Basic Law protects personal privacy, territorial privacy, and the freedom and privacy of communication. The Hong Kong Bill of Rights Ordinance (which incorporated the provisions of the International Covenant on Civil and Political Rights) also stipulates that there shall be no arbitrary or unlawful interference with a person’s privacy, family, home or correspondence. In this regard, the court held in the Eastweek case that the press is, to the extent that they collect PD, “caught by the provision” of the PDPO.
“This is not a case of the freedom of press versus the right of the individual both of which are bulwarks of a free society. It is a case of the co-existence of two great principles that needs to be carefully balanced. A free press is, after all, a responsible press. Freedom, in whatever form, will only thrive under law.” – Wong JA, Eastweek v Privacy Commissioner for Personal Data CACV331/1999
The PDPO has special protection for data users whose businesses consist of news activities in that the Commissioner does not have power, in the absence of a data subject complaint, to initiate an investigation against such data users. In addition, investigation of a complaint may only commence after the data is published.
Paparazzi taking photographs is a form of PD collection: The photographs fall squarely within the definition of PD because (a) they relate to living individuals; (b) it is practicable to ascertain from them the identity of the individuals (the photographs would otherwise be useless to the magazine if the artists could not be identified); and (c) the photographs are in a form practicable for access or processing. As the photographs constitute PD, the taking of them is a form of PD collection.
The circumstances of the PD collection were unfair
(a) An individual is protected from unwarranted intrusion to his private life irrespective of social status or occupation. While the PDPO does not require the media to invariably obtain consent for PD collection from public figures or artists, the media must consider the reasonable expectation of privacy of the subject and whether collection without consent is fair in the circumstances. The artists in the cases had a reasonable expectation of privacy as they were at home, and the inside of their residences were not casually viewable from the outside without the paparazzi deploying special equipment and/or trespassing restricted area. In addition, the PD collected, i.e. photographs of intimate acts and/or in the nude are “very sensitive data” which serious intruded the private lives of the artists.
(b) The photographs were taken through systematic surveillance by long lens over a few days. It is unfair to collect PD by means unknown to the individuals (e.g. with long range camera lens or hidden cameras), by taking photographs of individuals in private premises from outside those premises without their consent, or by taking photographs of individuals in public where those individuals had made it clear that they did not wish to be photographed.
(c) The PD collection was not in the public interest:
(i) There was no evidence that the artists initiated discussions on the cohabitation to court popularity. The artists had only responded to questions from the press. The Commissioner was of the view that it is understandable that the artists were not frank as they wished to protect their privacy.
(ii) The photographs showing the presence of the artists in the residences were incapable of proving cohabitation at an earlier time, i.e. when the denial of cohabitation was alleged.
(iii) The focus of the articles was not on rebutting the denials of cohabitation, but rather to boost sales by exhibiting the intimate acts or the naked body of the artists.
The Commissioner expressly stated that “what may be of interest or curiosity value to the public is not necessarily in the public interest” and found that the magazines used unfair means to collect PD. An enforcement notice was issued to the magazine mandating the permanent deletion of the photographs and the establishment of privacy guidelines on systematic covert monitoring/photographing as well as proper staff training and supervision to ensure compliance.
The Appeals
On appeal, the AAB endorsed the Commissioner’s view that public interest is a factor in determining whether PD collection is fair and that it was not in the public interest to take and publish the photographs. The AAB dismissed both appeals and distinguished the below cases on the ground that the Hong Kong artists never actively sought publicity of their personal relationships.
- The UK Court of Appeal case Woodward v Hutchins [1977] 1 WLR 760 – where a pop group starring Tom Jones and Engelbert Humperdink wanted to restrain their former press officer from publishing articles disclosing aspects of their private life. Lord Denning noted that where a pop group “sought publicity” and “wanted to have themselves presented to the public in a favourable light”, they then “cannot complain if a servant or employee of theirs afterwards discloses the truth above them”.
- The House of Lords case Campbell v MGN Ltd [2004] 2 AC 457– where Naomi Campbell claimed the publication of her treatment at Narcotics Anonymous (“NA”) infringed her right to be respected for her private life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It was held that as Campbell has repeated made public assertions that she did not take drugs, she no longer had a reasonable expectation of privacy on this topic and that the press was “free to expose the truth and put the record straight”.
The House of Lords balanced the rights under Article 8 and Article 10 (freedom of expression) before concluding by a 3:2 judgment that the press was justified to publish the fact that (a) Campbell had a drug addiction and (b) was receiving judgment, but not (c) the fact that the treatment was at NA, (d) the details of the treatment or (e) the visual portrayal of Campbell leaving a meeting.
A Responsible Press
Entertainment reporters do not get a free pass to intrude into the private life of artists. The taking of paparazzi photographs would almost always amount to PD collection. Before embarking on such ventures, the media must consider whether an artist would have a reasonable expectation of privacy and whether there is any public interest in reporting on the matter.
Part 2 of this article will review some scenarios in which a publisher may incur liabilities if it sources or publishes objectionable materials.
David S. Ma, LLM in Law, Science and Technology, Stanford Law School
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