20 / 192
3.5
The Court of Appeal, by a 2-1 majority, reversed the decision of the Court of First
Instance, and quashed the Commissioner’s finding of contravention. In its judgment
delivered by Ribeiro JA, the Court of Appeal held that in deciding whether there was
contravention of DPP1(2)(b), two elements must be proved, i.e. (i) an act of personal
data collection; and (ii) doing this by means which are unfair in the circumstances of the
case. Although a photograph of a person constitutes his personal data within the
definition of the Ordinance, the Court ruled that in all the circumstances of the present
case, there had been no “collection” of personal data by the magazine publisher and
hence DPP1 was not engaged at all. The tests applied by the Court in deciding whether
“collection” took place or not set out the judicial interpretation of “collect” as provided
in the Ordinance.
The Meaning of “Collect”
3.6
The following statement from the judgment of Ribeiro JA (at 90I), which was repeated
almost word for word in the judgment given by Godfrey VP (at 102D), is of particular
importance for the purposes of understanding an act of collection of personal data:
It is . . . of the essence of the required act of personal data collection that the data user must
thereby be compiling information about an identified person or about a person whom the
data user intends or seeks to identify.
3.7
The above statement lays down two conditions for an act of collection of personal data:
• the collecting party must be thereby compiling information about an individual
(“Condition A”); and
• the individual must be one whom the collector of information has identified or intends
or seeks to identify (“Condition B”).
3.8
Furthermore, the following statement from Ribeiro JA’s judgment (at 93C) clarifies the
requirements of Condition B:
In my view, many of the other provisions of the Ordinance and in the data protection
principles can only operate sensibly on the premise that the data collected relates to a
subject whose identity is known or sought to be known by the data user as an
important item
of information
. [emphasis added]
3.9
Elsewhere in Ribeiro JA’s judgment, reference was made to the facts of the case as well
as other hypothetical scenarios. Referring to the facts of the case, the judge stressed the
irrelevance of the identity of the person photographed to the appellant that published
the photograph in its magazine, and the appellant’s indifference to such identity (91E to
H). In an example quoted, he referred to the lack of concern on the part of market
surveyors about the identity of respondents (91J to 92B). In yet another example, he
mentioned the lack of interest on the part of the photographers and publishers of
newspapers in the identity of individuals whose photographs were published in
newspapers (93B), etc. All these were considered factors leading to the conclusion that
there was no collection of personal data.