The entertainment press should behave responsibly and evaluate whether the materials are legally sourced and whether their publication would be legal to steer clear of criminal prosecutions and civil lawsuits.
A magazine published a cropped photograph of an actress in the nude taken against her will. While the eyes of the actresses were blurred in the photograph, it did not effectively conceal her identity. The publisher argued that the article is a “morality piece” and that it was in the public interest to publish the photograph in order to reveal the dark side of the entertainment industry. The Court of Appeal commented that
“[t]here may be occasions when distressing photographs of individuals may be published quite legitimately. This was plainly not such an occasion when the actress in question had been photographed in a state of undress and under compulsion as the magazine article itself made clear.”
The Chief Editor of the magazine was sentenced to five-month imprisonment under the Control of Obscene and Indecent Articles Ordinance for publishing obscene material (the definition of “obscenity” includes violence, depravity and repulsiveness) that is not suitable to be published to anyone. In addition, the publishing company and the printing company were each fined and the Senior Editor and Editor were sentenced to Community Service Orders.
Materials Obtained Illegally
In 2008, over a thousands photographs of actor Edison Chen surfaced on the Internet in which he was engaging with different actresses in sexual activities. It transpired that a technician copied the photographs when the actor took his laptop to the shop for repair. The technician was sentenced to eight-and-a-half-month imprisonment for the offence of accessing a computer with a view to dishonest gain under the Crimes Ordinance.
In the Edison Chen incident, the actor admitted that he took the photographs of himself and the actresses. As such, he is the author and owner of the copyright in the photographs. He issued a statement through his legal representatives claiming that any download or reproduction of the photographs constitutes copyright infringement. As various media already published redacted versions of the photographs, the matter has lost some momentum by the time the statement was issued. If this were not the case, the court would have had a chance to examine whether the fair dealing exemption of “reporting current events” under the Copyright Ordinance would apply to this scenario.
Breach of Confidence and Right of Privacy
In the case of Sima Sai Er v Next Magazine HCA 1500/2014 An actress was successful in obtaining interlocutory injunction to stop seven news agencies from further publishing photographs and videos of her dancing seductively in lingerie. The court held that there was at least a serious issue to be tried that the actress had a reasonable expectation of privacy and that the publications constitute “breaches of the plaintiff’s right to privacy such as to give rise to causes of action for breach of confidence”, and that further publication would harm the health and reputation of the actress and serve no public interest.
The court rejected the argument that prior extensive publication rendered the material in public domain and held (citing Douglas v Hello! Ltd  QB 125 and OBG Ltd v Allan  1 AC 1) that each publication of photographs or videos is a fresh intrusion of privacy.
Public Interest in Press Sources
In the case of Wong Wing Yue Rosaline v Next Media HCA2701/2016 a barrister obtained interlocutory injunction to stop publication of photographs of her and her children on the grounds of copyright infringement and breach of confidence. The barrister instructed her maid to take the photographs (rendering the barrister the copyright owner), and it was unclear how the photographs came into the possession of the news agency. The court refused to order disclosure of the source of supply of the photographs on the ground of public interest.
The judge noted that although he “inclined to agree” that the publication of the photographs per se served little public interest, it is the public interest in the non-disclosure of press sources that the court must protect – “As forcefully pointed out by Laws LJ in the Ashworth Hospital Authority case [Ashworth Hospital Authority v MGN Ltd  1 WLR 2033], such public interest is constant whatever the merits of the particular publication.”
In 2009, following an artist’s denial to the press that he was married, a news agency searched the public records of Clark County, Nevada to discover the marriage record of that artist, along with those of a few other artists. The publication of these details did not prompt the artists to pursue any legal action against the publication. This was probably because such publication was factual and not as offensive or intrusive as the publication of the photographs mentioned in the foregoing cases.
David S. Ma, LLM in Law, Science and Technology, Stanford Law School