1.The Privacy Commissioner for Personal Data (“the Commissioner”) Mr. Allan Chiang published two investigation reports today (28 March) on the collection of the complainants’ personal data by Sudden Weekly Limited (“Sudden Weekly”) and FACE Magazine Limited (“Face Magazine”) respectively, which contravened the Data Protection Principle (“DPP”) of the Personal Data (Privacy) Ordinance (“the Ordinance”) regarding collection of personal data.
Background
2.The three complainants in these two cases are TV artistes (“Artiste A”, “Artiste B”, and “Artiste C”). Sudden Weekly and Face Magazine, through systematic surveillance means and using photographic equipment such as long-focus lens and magnifier, took photos clandestinely of their private activities at home and published the photos in their magazines. Most of the photos of Artiste A published in Sudden Weekly showed his naked body. Photos of Artiste B and Artiste C published in Face Magazine depicted their daily life and intimate acts at their home premises.
Results of investigation
3.The Commissioner considered that the taking of the photos amounted to collection of the personal data of the artistes. He determined that this was not done by means which were fair in the circumstances of the case, thus contravening DPP1(2). The artistes’ reasonable expectation of privacy
4.“An individual should be protected from unwarranted intrusion to his/her private life, irrespective of his/her social status and occupation. The complainants in question should not be deprived of this privacy right just because they are TV artistes,” Mr. Chiang said.
5.“Although DPP1(2) does not require media organizations to obtain the artistes’ consent before collecting their personal data, they must take into account the artistes’ reasonable expectation of privacy before doing so. In the circumstances of the present cases, the artistes have a legitimately high expectation of their privacy as they were staying in their homes which had an open view. Artiste A’s flat was on a high floor of a building which was not exposed to public view within normal viewing distance. He would not reasonably expect that photos showing him in the nude would be taken by someone from a far distance using special photographic equipment such as long-focus lens and magnifier. Likewise, the flat where artistes B and C stayed faced a hillside not normally accessible to the public. They would not reasonably expect that photos of their intimate acts at home would be taken clandestinely.”
6.“I note in particular that the clandestine photo-taking was arranged through systematic surveillance. The photographers spent several days, night and day to carry out their job. This amounted to a serious intrusion on the artistes’ privacy and could not be accepted as fair unless there were legitimate justifications.”
Public interest considerations
7.Sudden Weekly argued that the photos and the accompanying article published in its magazine served a public interest as they showed that Artiste A was cohabiting with a female artiste, thus proving that his earlier denial to the media of cohabitation was untruthful. Similarly, FACE Magazine also argued that its publication of the photos and the accompanying article was in the public interest as they showed the couple’s cohabitation, contrary to their earlier denial to the media. 8.“I do not accept these arguments. Firstly, the state of cohabitation or otherwise is an individual’s sensitive personal data which he or she is under no obligation to divulge to others. There is no evidence that the artistes have talked about cohabitation on their own volition or in a high profile manner. They have responded to “gossip gathering” questions from the press instead of actively touting publicity. Their responses could be taken as a natural response to protect their privacy. They are gossip news rather than matters of public interest.” Mr. Chiang commented.
9.“Unlike marriage, cohabitation is an ill-defined term subject to different interpretations. Even if photos taken of a couple staying together at home may show their cohabitation at the time of shooting, they provide no clue as to whether such a relationship existed in the past. In other words, any attempt by the two magazines to prove the falsity of the artistes’ earlier denial of cohabitation is doomed to be a futile exercise.”
10.“Further, there should be many ways to show a couple’s cohabitation relationship. The disproportionate use of lurid and sensational photos by the two magazines casts grave doubt on their contention that they have acted in the public interest rather than to satisfy readers’ curiosity of the private lives of the artistes concerned.”
11.“I must point out that what may be of interest or curiosity value to the public is not necessarily in the public interest. Public interest must involve a matter of legitimate public concern. There is a distinction to be drawn between reporting facts capable of contributing to a debate of general public interest and making tawdry descriptions about a public figure’s private life,” Mr. Chiang emphasized.
Unfair collection of personal data
12.Having considered all the circumstances of the two cases, the Commissioner concluded that the clandestine photo-taking by the two magazines were highly privacy intrusive and not supported by public interest considerations. It constituted unfair collection of personal data and a contravention of DPP1(2) under the Ordinance. Enforcement notice
13.The Commissioner has served enforcement notices on both Sudden Weekly and FACE Magazine directing them to take steps to remedy the contravention and the matters occasioning it. In response, the two magazines respectively lodged appeals against the enforcement notices with the Administrative Appeals Board.
Views of Hong Kong Journalists Association
14.The Commissioner has enquired with the Hong Kong Journalists Association and found that his determination on the two cases is consistent with the established professional standard of the media industry.
Balance between ‘Freedom of expression’ and ‘Privacy right’
15.“The present cases pose the important question of balancing the “freedom of expression” with the “right to privacy”. I very much respect the freedom of speech and of the press. This is a fundamental right preserved by the Basic Law and the Hong Kong Bill of Rights. The exercise of this right by the media serves the noble purpose of public scrutiny by unveiling important social phenomena or problems, and reporting incidents involving significant public interest.” Mr. Chiang remarked.
16.“However, the right to freedom of speech and of the press has to be balanced with the equally important fundamental right of privacy, which is also protected by the Basic Law and the Hong Kong Bill of Rights. It should not be exploited by media organizations as a privilege to, without legitimate grounds, make use of information of other people’s private lives for attaining commercial gains. In particular, it does not entitle the press to use privacy intrusive means to acquire personal data which others wish to keep private, unless there are legitimate justifications such as an overriding public interest.”
17.“Neither the freedom of the press nor the right to privacy is absolute. They are of equal value in a civil society and none has pre-eminence over the other. It is therefore necessary to find a way of balancing the exercise of these rights. In this regard, the Law Reform Commission issued a consultation document ‘Privacy and Media Intrusion’ in 1999 and released the consultation report in December 2004. I hope the Government will follow up and lead a public discussion on this issue to gather the opinion of different stakeholders, with a view to introducing appropriate legislation to balance the two rights.” Mr. Chiang concluded.
18.“Meanwhile, I hope that the investigation reports will serve as a lesson to those media organizations using similar privacy-intrusive means to collect artistes’ personal data. Although the Ordinance does not prohibit them from taking candid photos of their targets and each case turns on its own facts, they will need to carefully find a balance between the right of freedom of the press and their targets’ privacy right. In general, the more intrusive the relevant means of data collection, the more likely that it would be regarded as unfair, unless the public interest involved can override such intrusive act.” Mr. Chiang advised.　Collection of the Report
19.For details of the case background, findings, the Commissioner’s recommendations and other comments, please refer to the two investigation reports, copies of which can be obtained from the Office of the Privacy Commissioner for Personal Data at 12/F., Sunlight Tower, 248 Queen's Road East, Wan Chai, Hong Kong or downloaded from its website (http://www.pcpd.org.hk/english/enforcement/commissioners_findings/investigation_reports/invest_report.html).
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