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

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Information Privacy and Other Privacy Interests
3.30 Another important point from the judgment delivered by Ribeiro JA in the Eastweek case
is that he has made clear the scope of privacy interests as protected under the
Ordinance as follows (95I to 96E):
Personal data protection and not a general right to privacy.
Mr. Griffiths stressed the limited protection to privacy afforded by the Ordinance. As its long
title states, it is “an ordinance to protect the privacy of individuals in relation to personal data,
and to provide for matters incidental thereto or connected therewith.” It is therefore not
intended to establish general privacy rights against all possible forms of intrusion into an
individual’s private sphere or, as an American judge succinctly put it in an early textbook, a
general right “to be let alone” (Judge Cooley in Cooley on Torts, (2nd ed.) p.29, cited in
Warren & Brandeis, The Right to Privacy (1890) 4 Harv LR 193).
The distinction between other interests in privacy and the protection of personal data is well
recognized. Thus, the Law Reform Commission of Hong Kong, whose Report on Reform of the
Law Relating to the Protection of Personal Data provided the basis for the Ordinance as
enacted, cited four privacy “interests” identified by the Australian Law Reform Commission as
follows:
(a) the interest of the person in controlling the information held by others about him, or
“information privacy” (or “informational self-determination”) as it is referred to in Europe;
(b) the interest in controlling entry to the “personal place” or “territorial privacy”;
(c) the interest in freedom from interference with one’s person or “personal privacy”;
(d) the interest in freedom from surveillance and from interception of one’s communications,
or “communications and surveillance privacy”.
The Law Reform Commission made it clear that it was only concerned in its Report with
“information privacy.” Protection of that particular interest is plainly also the aim of the
Ordinance.
3.31 Sometimes a complainant who believes that his privacy right may have been infringed,
for instance, by being stalked by someone, lodges a complaint with the Commissioner.6
Unless it can be shown that information about him has been recorded and collected as
a result, e.g. by being photographed or recorded, the infringement of personal privacy
as opposed to personal data privacy is a matter outside the remit of the Ordinance.
3.32 Communications and surveillance privacy cover issues such as intrusion (by electronic or
other means) into private premises and the interception of communications which
sometimes overlap in certain situations. It should however be noted that surveillance
activities, though causing interference with the personal privacy of the individual, do not
6 This comes within the area of stalking. See the LRC’s Report on Stalking, October 2000 and the Consultation Paper on
Stalking issued by the Constitutional and Mainland Affairs Bureau in December 2011. The Commissioner had submitted
his views in response to the consultation, details of which are available on the Website:
The Bureau issued a paper on the summary
of the views received on the Consultation Paper in November 2012 (LC Paper No. CB(2)196/12-13(04)) and another
paper on overseas experience in implementing anti-stalking legislation in December 2013 (LC Paper No. CB(2)471/13-
14(03)).