newspaper used the personal data it obtained from a legal proceedings (to which it was a party) for news reporting. Under the circumstances of the case, the collection of the data was not by means that was unlawful or unfair, and the data were used for the original purpose of collection or directly related purpose.
"Fair" in DPP1(2)(b) refers to fairness to a data subject, not to others - DPP1(3) is only applicable where personal data are collected from a data subject - "Purpose" in DDP3(a) refers to the purpose at the time of the collection of the data by the data user, not the intention or purpose of the data subject - DPP1(2), DPP1(3), DPP3
The Complaint
The Complainant filed a civil action against a newspaper of giving a negative report on mental patients. A writ of summons was served by the Complainant upon the newspaper. Upon receipt of the writ of summons, the newspaper reported the action the next day, in which the particulars of the claim including the name of the Complainant and that he was a mental patient ("the data") were disclosed. The Complainant believed that the disclosure of the data by the newspaper had contravened the Personal Data (Privacy) Ordinance ("the Ordinance").
Findings by Privacy Commissioner
The Privacy Commissioner had considered the following: (i) the functions and activities of the newspaper included reporting of court news; (ii) since the action had commenced, anyone could access the writ of summons and obtain the data inside through the court registry; (iii) the data were contained in the writ of summons. The disclosure of the data by the newspaper was directly related to the reporting of the action, and there was no information showing that the newspaper disclosed the data for other purposes; (iv) there was no statute or court order prohibiting the newspaper from disclosing the data when reporting the action.
Having considered all the evidence provided by the Complainant and all the circumstances of the case, the Privacy Commissioner found that there was no prima facie evidence showing that the newspaper had contravened DPP3 in the disclosure of the data in reporting the action. Therefore, the Privacy Commissioner decided not to carry out an investigation under section 39(2)(d) of the Ordinance. The Complainant lodged an appeal with the Administrative Appeals Board against the decision.
The Appeal
As the newspaper was the defendant in the action, it obtained the writ of summons according to legal process. In the instant case, the newspaper did not have to follow the practice of other newspapers in obtaining the writ of summons upon payment of the prescribed fee. The Board found that the means of collecting the data by the newspaper was not unlawful, and therefore there was no contravention of DPP1(2)(a).
As the defendant in the civil action, the newspaper obtained the data contained in the writ of summons before the other newspapers did. Even if this could be said to be unfair to other newspapers, it could not be taken to be unfair means of collection vis-a-vis the Complainant. Therefore, the newspaper had not contravened DPP1(2)(b).
The Complainant alleged that since the newspaper had not implied to him that it would use the data for news reporting purpose, it had contravened DPP1(3). The Board ruled that DPP1(3) was only applicable where a data user collected personal data directly from a data subject. As the writ of summons was served by the Complainant upon the newspaper, who did not take an active part in the collection, DPP1(3) was not applicable.
The Board considered that, generally speaking, the function of a newspaper is news reporting. In the circumstances of the case, the newspaper collected the data for news reporting and not for other purposes. DPP3 stipulates that personal data shall not, without the prescribed consent of the data subject, be used for any purpose other than the purpose for which the data were to be used at the time of the collection of the data (i.e. original purpose) or a purpose directly related to the original purpose. The Board found that the original purpose was the newspaper's purpose of data collection, not the intention or purpose of the Complainant. As the newspaper’s use of the data by way of court news reporting was the same as and directly related to the original purpose, the Board found that the newspaper had not contravened DPP3.
The AAB Decision
The Appeal was dismissed.
uploaded on web in January 2009