Is The Tort Of Invasion Of Privacy Itself A Moral Fiction Rather Than A Legal Issue In Hong Kong?

 

23 March, 2017

 

 

The explosion of social media over the past decade has made it nearly impossible to have a private life, whether by choice or not.  For those who opt for a less public life, it may be more difficult to achieve since in Hong Kong invasion of privacy is not an actionable tort per se as between private individuals.  However, in May 2016, the UK Supreme Court in PJS v. News Group Newspapers Ltd.[1] delivered what many have characterized as a landmark case in the realm of invasion of privacy tort law.  Since then, there has been a lot of discussion regarding the impact the PJS case will have on future cases in the UK and also in Hong Kong. Given the rapidly evolving nature of social media and the internet, it seems the PJS decision was not a surprising one.  We had an opportunity to speak with the commercial litigation team at Hill Dickinson Hong Kong on the current state of the law governing privacy torts in Hong Kong and the impact the PJS case may have, if any, on lawsuits between private individuals, and here is what they had to say.

 

Conventus Law: Before we delve into the impact of this case, can you tell me a little bit about the factual background and procedural history of the case?

 

Hill Dickinson: The factual background is straightforward. The Claimant PJS (a celebrity) was engaged in a three-way sexual encounter with two other people who approached some mass media for publication of the story. PJS applied for an urgent injunction on the ground of invasion of privacy to prevent any publication.

 

The High Court refused PJS’s application. Despite the High Court’s recognition of PJS’s reasonable expectation of privacy regarding his sexual activities, it was held that the expectation had been reduced by his own conduct; more importantly, the Court found that there was public interest in correcting the image of commitment PJS held out with his partner YMA, who is also a celebrity.

 

PJS appealed to the Court of Appeal, which was allowed – interim injunction was granted to restrict publication of PJS’s sexual story. Nevertheless, details of PJS’ activities and the names of the parties involved were subsequently published in the USA, Canada and Scotland. The Respondent of the current case, News Group Newspaper Ltd (“NGN”) therefore applied to the Court of Appeal to discharge the injunction in that the information protected by the injunction had now entered the public domain, and the injunction thereby served no useful purpose. The Court of Appeal granted NGN’s application subject to a stay to allow PJS to seek permission from the Supreme Court for a further appeal.

 

The Supreme Court subsequently allowed PJS’s appeal, which will be further discussed below.

 

CL: What is the current law on similar invasion of privacy rights and the right to sue for it in a tort cause of action in Hong Kong? 

 

186. : In relation to the Hong Kong position, it is necessary to consider public authorities and private individuals separately.

 

Invasion of privacy by public authorities

 

In Hong Kong, the right to privacy is constitutional, as guaranteed by the Basic Law:

 

• Article 29 prohibits arbitrary or unlawful intrusion into a resident’s home or other premises;
• Article 30 prohibits infringement of privacy of communication. [2]

 

Similarly, the International Covenant on Civil and Political Rights (which guarantees an array of individual rights including the right to privacy) was given constitutional status by Article 39 of the Basic Law and was incorporated into Hong Kong law by the Hong Kong Bill of Rights Ordinance (Cap 383) (“BORO”).  The BORO binds only the government, public authorities and their agents.

Section 8 article 14 of the BORO provides that no one may be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to the protection of the law against such interference or attacks. Breach of the BORO by public authorities is a civil wrong and an actionable tort under which the aggrieved party can claim damages and other remedies as the case may be.

 

There is also other relevant legislation which provides for specific circumstances.

 

The Interception of Communications and Surveillance Ordinance (Cap 589) (“ICSO”) was implemented to restrict the government and its law enforcement agencies from arbitrary use of interception and surveillance devices on its subjects. Under sections 43 and 44 of the ICSO, any individual suspecting that a wrongful interception / surveillance has been carried out against him may apply to the Commissioner on Interception of Communications and Surveillance for an examination. He may also request compensation which the Commissioner may order against the Government.

 

Additionally, the Personal Data (Privacy) Ordinance (Cap 486) (“PDPO”) operates to protect personal data (from which the identity of the individual can practicably be ascertained) from abuse and dissemination without consent. An aggrieved individual may claim damages against data users for breach of the PDPO under section 66. Apart from the Government, the PDPO also applies to data users in the private sector. In other words, both the government and private data users have a duty to protect personal data from unauthorized dissemination; otherwise, the aggrieved individual may claim damages against the data user, whether public or private.

 

Aside from the Basic Law and other domestic legislation mentioned above, any member of the public may also sue the Government in tort when the relevant circumstances fall within a recognised category of tort. However, the recourse to tort law is more common as between private individuals – see below.

 

Invasion of privacy as between private individuals

 

Invasion of privacy is not an actionable tort per se in Hong Kong as between private individuals. However, depending on the circumstances, the factual situation leading to an invasion of privacy may fall within an existing recognised category of tort.

 

Trespass to Land / Nuisance

 

Unjustified entry into one’s private premises is a trespass to land. This will be the case when a person installs a listening device on another person’s private premises.[3] Similarly, this could be the case when a surveillance camera is installed inside another person’s land without authorisation. However, even if the aggrieved person could obtain an injunction against the act of trespass, he/she may not be able to obtain an injunction against the publication of photographs / recording obtained during the trespass,[4] since the law of trespass protects a person’s property and his/her employment of it but not his/her privacy as such. In other circumstances where there is prolonged interference to one’s enjoyment of the property, he may have a cause of action under nuisance. This is the case when one is harassed by repeated telephone calls causing nothing but annoyance.[5] Watching or overseeing private premises may also constitute nuisance.[6] However, an isolated incident where there is similar invasion of privacy is not protected by the tort of nuisance.

 

Breach of Confidence

 

It is a breach of confidence to disclose information obtained from another person knowing that the other person intends the information to be kept confidential. However, the tort of breach of confidence aims to protect only confidentiality and the trust which the informant has reposed in the confidant. Its aim is not to provide protection from emotional distress or embarrassment caused by an infringement of privacy, especially where there is no trust placed by the aggrieved in the discloser, as in the PJS case.

 

Infringement of Copyright

 

It could be an infringement of copyright if a person publishes a private letter or photograph without authorisation from the author. However, infringement of copyright is only actionable by the copyright owner, who usually is the author. For example, a person whose photograph was taken by another person has no action under copyright even if the photo is publicly published and hence his/her privacy is invaded. Similarly, a person mentioned in a private letter which is publicised does not have a cause of action if he/she is not the copyright owner of the letter.

 

Other causes of action

 

Other situations may provide causes of action such as defamation and malicious falsehood. Nevertheless, the information publicised must have been false to give rise to these actions. If the facts do not fall within the ambit of any recognised existing tort, then no action arises simply because there arguably is an invasion of privacy.

 

Presently in Hong Kong, invasion of privacy itself is a moral fiction rather than a legal issue.

 

CL: While the courts of Hong Kong are not bound by the decisions reached by the UK court, they do tend to treat the UK decisions as more or less persuasive authority.  In light of this, do you think the PJS case will have an effect on future invasion of privacy cases in Hong Kong? 

 

HD: What is significant about the UK decision in the PJS case is that it represents a break between privacy and confidentiality.  Traditionally, the tort of breach of confidence was always relied on in pre-Human Rights Act 1998 English cases seen to protect personal privacy.  However, the PJS case turns on the balancing exercise between Article 8 (right to respect for private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights (“ECHR”) (which do not have a Hong Kong equivalent), as well as the consideration of public interest. It does not turn on the tort of breach of confidence. As Lord Neuberger (majority judgement) acknowledged: “If PJS’s case was simply based on confidentiality (or secrecy), then, while I would not characterise his claim for a permanent injunction as hopeless, it would have substantial difficulties. … there comes a point where it is simply unrealistic for a court to stop a story being published in a national newspaper on the ground of confidentiality, and, on the current state of the evidence, I would, I think, accept that, if one was solely concerned with confidentiality, that point had indeed been passed in this case.”

 

In Hong Kong, articles 29 and 30 of the Basic Law and section 8 article 14 of the BORO resemble article 8 of the ECHR. They also have a ‘prevailing’ effect over the other laws in Hong Kong, which is akin to the position of ECHR vis-à-vis UK domestic laws. In Hong Kong, there have been no cases between private individuals in relation to the invasion of one’s privacy argued at the constitutional level, i.e. resorting to the Basic Law. The PJS case may affect the future development of privacy law jurisprudence in two ways.

 

First, the PJS case may inspire litigants to resort to the Basic Law and the BORO rather than relying merely on existing tort law when pursuing a claim for a de facto invasion of privacy (although it may also fall within recognised torts such as breach of confidence).

 

Secondly, when litigants are inspired to raise such an argument, the PJS case will very likely be the only authority that the Hong Kong courts could refer to. Unsurprisingly (and with respect), the UK Supreme Court’s analysis on privacy rights presented no flaw in legal reasoning, and hence in the author’s view it may be very persuasive authority for a Hong Kong court. The more probable variant factor is the ‘public interest’ element in the decision of the UK court.

 

In assessing whether there is any ‘public interest’ in the allegedly private information disclosed or sought to be disclosed, the outcome is both more factual and moral than legal. Although the UK Supreme Court cited a number of precedents to set out the definition and elements of ‘public interest’, the precedents were drawn from the European Court of Human Rights. It is also not unlikely that even if the identical legal principles are adopted in Hong Kong, their application and hence the outcome could be different, simply because (it may be argued) social values in Hong Kong differ from that in the UK.

 

On the other hand, there has long been voices urging the development of privacy tort in Hong Kong. The Law Reform Commission of Hong Kong (“LRC”) published a consultation paper in 1999 in respect of the civil liability for invasion of privacy. The report was published in 2004. The LRC’s conclusion and recommendation are positive towards the implementation of a statutory tort on the invasion of privacy in addition to the abovementioned existing tort. With the momentum given by the PJS case, it can be envisaged that both common law jurisprudence and legislation will move faster to establish civil liability for invasion of individual’s private life than it did in the past twenty years.