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Consultation Paper on Civil Liability for Invasion of Privacy

13 December 1999

The Secretary
The Privacy Sub-Committee
The Law Reform Commission
20^th Floor, Harcourt House
39 Gloucester Road
Wanchai
Hong Kong

Dear Sir/Madam,

Consultation Paper on Civil Liability for Invasion of Privacy

We thank you for agreeing to extend the time within which we may comment on the Consultation Paper.

We agree with the general conclusion and with the specific recommendations (Recommendations 1, 3, 4, 9, 10, 11, 12, 13, 14, 15, 18, 19, 21, 22, 23, 24, 25, 26 and 28) in the Consultation Paper that a statutory privacy tort be introduced in Hong Kong to provide remedies to individuals whose solitude or seclusion is intruded upon or whose private life is given publicity, where the intrusion or disclosure is seriously offensive and objectionable.

The lack of a privacy tort in the English (and Hong Kong) Common Law has long been recognised as a "lacuna". Over the years this has resulted in somewhat of a lottery for victims of invasions of privacy. Some such victims have been provided a legal remedy if they have been able to establish a cause of action falling within one or other of the recognised torts such as trespass, nuisance or defamation; others who have failed to establish such a cause of action have had no remedy at law.

Furthermore, it is a matter for concern that Hong Kong has not so far implemented to the full, through its own laws, and as required by Article 39 of the Basic Law, the requirements of Article 17 of the International Covenant on Civil and Political Rights that no one 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. It is of fundamental importance, and a requirement of the Basic Law, that Article 17 be implemented by the enactment of legislation such as that proposed in the Consultation Paper. We recognise the potential for conflict between Article 17 and Article 19 of the International Covenant. Article 19 requires that everyone shall have the right to freedom of expression, including freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media. In a sense, though, Article 19 itself recognises that the right to freedom of expression may be made subordinate to other rights such as the right to privacy under Article 17. Paragraph 2 of Article 19 recognises this by stating that the right to freedom of expression carries with it special duties and responsibilities and may, therefore, be subject to certain restrictions, as are provided by law and are necessary for respect of the rights or reputations of others and for the protection of national security, public order, or public health or morals. We agree that the rights of privacy and of freedom of expression provided by the International Covenant are not mutually exclusive; they are of equal importance, but in certain circumstances the right to freedom of expression should give way to the right to privacy and vice versa. Neither right is an absolute and both are circumscribed to some extent by the other.

We believe that in formulating the proposed statutory torts of invasion of privacy in terms of Recommendations 1 and 3 and in formulating the proposed statutory defences in terms of Recommendations 9, 10, 12, 13, 14, 15 and, in particular, 18 and 19, the right balance has been struck.

As regards the other Recommendations in the Consultation Paper not mentioned above, we endorse these without further comment.

Finally, we would like to compliment the Privacy Sub-Committee and Mr. Godrey K.F. Kan, who was principally responsible for the writing of the Consultation Paper, on the thoroughness and clarity of thought which the Paper demonstrates.

Yours sincerely,

Alan LUNG Ka-lun
Chairman