Personal Data (Privacy) Law in Hong Kong – A Practical Guide on Compliance

186 / 192

12.87 The first criterion is straightforward and easy to apply. What is less clear is the second part
on what constitutes “reasonable belief” and “public interest” as both of these terms are
not defined in the Ordinance. The terms as the Commissioner understands and applies
them are illustrated in a complaint concerning the disclosure by the principal of a
college of the personal data of the complainant (who was a member of staff) to
journalists. Such personal data was contained in an accident investigation report with
regard to an employee compensation claim.
12.88 The disclosure was made in circumstances where the principal was confronted by
reporters who sought to verify with him the allegation made by the complainant’s wife
that the college had procrastinated in releasing compensation money to the
complainant. In rebutting the allegation, the principal found it necessary to disclose
information contained in the investigation report. In response to the complaint later
lodged by the complainant with the Commissioner on alleged contravention of DPP3,
the college raised the section 61 exemption as a defence since the principal had
reasonable grounds to believe that disclosure of the personal data in question was in
the public interest, i.e. in defending the image of the college and to enable the
journalists to present a balanced news report. The Commissioner was satisfied that the
requirements in section 61(2) were met.
12.89 Dissatisfied with the decision, the complainant appealed to the AAB under AAB No.
23/1997. The AAB agreed with the Commissioner’s findings but did not give any definitive
ruling on what constituted “public interest”, considering that each case should be
decided on its own facts.
12.90 In handling complaints of this sort, the Commissioner is inclined to take a broad view of
what constitutes the “public interest” in section 61(2). The case is strengthened when the
personal data is disclosed to the media for the purpose of serious news reporting. The
Commissioner would in such cases be more ready to find that reasonable grounds exist
to disclose the information in the public interest. Although the term “public interest” is not
defined, a distinction needs to be drawn between what the public is interested in
knowing and what is in the public’s interest. 14
12.91 Section 61(1) also exempts from application the provisions of DPP6 and section 18(1)(b),
in preventing access to personal data unless the data is published or broadcast. This
quells the concerns of journalists caused by requests from individuals to access the
personal data they have collected in their news gathering activities prior to such data
being published or broadcast.
14 The question of public interest was considered in two investigation cases (Investigation Reports Nos. R12-9159:
and
R12-9164:
concerning journalists who took photographs of artistes through the use of long-lens cameras whilst the artistes were at
home. The media appealed against the two decisions in AAB No. 5 & 6 of 2012. The AAB agreed with the Commissioner’s
view and stated that public interest does not equate things that the public is interested to know. More details of the
cases are found in paragraph 5.45 in Chapter 5.