Case Notes

(AAB Appeal No. 23 of 2019)

Personal data shall be collected by lawful and fair means – photo-taking in a hospital – contravention of Hospital Authority Bylaws – the lawfulness of taking photographs and collecting data

Coram:
Mr. Erik Ignatius SHUM Sze-man (Presiding Chairman)
Mr Simon Chan Cham-man (Member)
Mr Lawrence Ng San-wa, MH(Member)

Date of Decision: 10 November 2020

The Complaint

The Appellant alleged that someone sneaked a photograph of him when he was waiting in the Accident & Emergency Department of a hospital. Subsequently, a news report relating to him was published online by a local newspaper. The news report also included a photograph of him in the hospital, with his eyes redacted.

The Appellant then made a complaint to the Commissioner alleging that a staff member of the news agency took a photograph of him in the hospital and published his personal data to the public. The taking of photograph in a hospital contravened bylaw 7(1)(f) of the Hospital Authority Bylaws.

The Commissioner’s Decision

Upon consideration of all relevant information, the Commissioner decided not to carry out an investigation into the Appellant’s complaint pursuant to section 39(2)(d) of the Personal Data (Privacy) Ordinance (“PDPO”) and paragraph 8(e) & (i) of the Complaint Handling Policy. Reasons are as follows:-

1. The news report only mentioned the Appellant’s surname, his age and the name of the concerned residential building. His eyes on the photograph were redacted. To an ordinary person, it would not be reasonably practicable to ascertain a person’s identity solely based on his surname and partial facial image. Hence, the news report (including the written depiction and the photograph) did not amount to personal data under the PDPO.

Being dissatisfied with the Commissioner’s decision, the Appellant lodged an appeal to the AAB.

The Appeal

The AAB allowed the appeal for the following reasons:

1. “Collection of personal data” and “news reporting” were two separate matters. The Commissioner should investigate whether there was any contravention of DPP1(2) during the collection of data in the present case, and should investigate whether the manner of collection was unlawful.
2. The AAB took the view that the collection of the Appellant’s photograph was a prima facie case of contravention of DPP1(2), because the photograph was taken in a hospital without the consent of the Appellant. Photo-taking of a patient without his consent in a hospital was prohibited by virtue of bylaw 7(1) of the Hospital Authority Bylaws.
3. The Commissioner should re-investigate the relevant matter and make a decision.

The AAB’s Decision

The appeal was allowed and the complaint was remitted for the Commissioner’s investigation.

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