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

Chapter 3

The Meaning of “Collect”

The main questions:

• What is the meaning of the word “collect” as applied to personal data, in the light of

the ruling made in the Eastweek case?

• How does the ruling affect the scope and interpretation of the Ordinance?

• What are the different kinds of privacy interests and which of them is protected under

the Ordinance?

These questions are discussed in this Chapter concerning the Eastweek case and the meaning

of “collect”. They have been selected on the basis of their practical importance in light of the

Commissioner’s own experience. Before reading this Chapter, readers should read paragraphs

1.7 to 1.11 in Chapter 1 —

Introduction, which contain important general information on using

this Book.

The

Eastweek

Case

3.1

The Eastweek case is of cardinal importance in the following two aspects:

• it defines the meaning of the word “collect” as it applies to personal data; and

• in addition, it contains other important judicial dicta which help to provide

clarification on the scope of the Ordinance.

3.2

The case arose from a complaint lodged with the Commissioner. The complainant, while

walking on the street one day, was photographed by a magazine photographer

without her knowledge or consent. The photograph was subsequently published in the

magazine accompanied by unflattering and critical comments on her style of dress. The

matter caused embarrassment and inconvenience to the complainant amongst her

clients and colleagues.

3.3

After conducting an investigation of the case, the Commissioner decided that the

magazine in question contravened DPP1(2)(b) of the Ordinance on the grounds that the

personal data of the complainant in the photograph was collected by the magazine by

unfair means. The magazine publisher took the decision to the Court for judicial review

and applied for an order of certiorari to quash the Commissioner’s decision.

3.4

In the judicial review held in the Court of First Instance, Keith JA dismissed the application

and the magazine publisher appealed to the Court of Appeal.