The Complaint
Summary of Facts
The complainant sustained an injury during an accident (“Accident”) while he was working for his former employer (“Employer”). An insurer acting for and on behalf of the Employer (“Insurer”) disclosed to the complainant a surveillance report and a DVD prepared by a private detective agency (“Agency”). The report and DVD contained surveillance photographs and videos of the complainant’s daily activities, including his visit to a public hospital (“Hospital”). The complainant therefore complained to the PCPD against the Insurer and the Agency for taking photographs and videos of his daily activities without his consent.
Issue of the Case
Whether the taking of the surveillance photographs and videos of the complainant’s daily activities was in contravention of DPP1(1) and DPP 1(2).
Information provided by the Insurer and the Agency
- The Insurer stated that it was their professional judgment that the complainant should have recovered from the injury caused by the Accident but the complainant continued to apply for sick leave.
- The Insurer thereupon instructed the Agency to conduct surveillance on the complainant in order to gather evidence in relation to the complainant’s physical and mental conditions.
- The Agency admitted that it was not necessary for them to take photographs and videos of the complainant’s activities in the Hospital for the purpose of carrying out surveillance on him.
Outcome
Except the relevant photographs and videos taken in the Hospital, the taking of photographs and videos of the complainant’s activities in other places was not unlawful. Such act was directly related to the Insurer’s function or activity and was not excessive for the purpose of handling the complainant’s claims for compensation and damages.
Action by the PCPD
However, the PCPD took the view that the taking of the relevant photographs and videos in the Hospital was contrary to the relevant hospital bylaws. This amounted to unlawful collection of personal data which contravened DPP1(2). By virtue of section 65(2) of the Ordinance, the Insurer was liable for the acts of the Agency.
Remedial Action by the Party Complained Against
To rectify the situation, the Insurer and the Agency confirmed that they had destroyed the relevant photographs and videos taken in the Hospital. The Insurer undertook to the PCPD that they would (a) give specific instructions to their appointed agents not to take photographs and videos in hospitals, and (b) incorporate such terms in their contracts for engaging private detective agents in future. The Agency also confirmed that they had issued guidelines to its staff members reminding them to comply with all laws of Hong Kong and hospital bylaws when conducting surveillance, and they would also give adequate education and training to their staff members. Case was therefore closed under section 39(2)(d) of the Ordinance.
uploaded in March 2014