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necessarily involve the collection of “personal information”.
7
Surveillance activities
carried out by law enforcement agencies are regulated under the Interception of
Communications and Surveillance Ordinance, Cap 589, Laws of Hong Kong and the
personal data collected as a result is by virtue of section 58A exempt from the provisions
of the Ordinance.
3.33
While personal privacy may be interpreted to mean the right to seclusion or solitude, the
Hong Kong Law Reform Commission (“LRC”) addressed the issue in its Report on Stalking,
October 2000, concerning reform of the law relating to domestic violence and stalking.
The LRC recommended that when a person pursues a course of conduct that amounts
to harassment of another which he knows or ought to know amounts to harassment of
the other, he should be guilty of an offence. In the area of media intrusion upon the
privacy of individuals, the LRC recognised the limitation of the Ordinance as it is not
intended to establish general privacy rights against all possible forms of intrusion into an
individual’s private sphere.
8
3.34
To follow up on the report, the government issued a consultation document in 2011
inviting views on issues including whether there is a need for legislation against stalking,
whether stalking should be made a criminal offence, the level of penalty and the
recommended defences. Consideration was also given to the provision of civil remedies
for victims. In response to the consultation, the Commissioner expressed general support
for more stringent regulation against stalking as a stalker may engage in a series of acts
like collection and dissemination of the personal data of the victim. Given the wide
definition of stalking, a data user’s persistent and unfair collection of the data subject’s
personal data may be considered as stalking. There are scenarios where a breach of
personal data privacy rights would overlap with the act of stalking, for instance, the
pursuit of covert photography of artistes by the media. While the Commissioner agrees
that it would be reasonable for the media to pursue a course of conduct in order to
report on a matter of public interest, if the story is about the private life of an individual
with no public interest involved, the media should not pursue the individual to the point
of causing alarm or distress to the individual. A balance is needed between press
freedom and other fundamental human rights, including the right to privacy. The
Commissioner supports the creation of a separate defence on “legitimate news
gathering activities”. In debt collection related activities, the Commissioner takes the
view that establishing stalking as a criminal offence would be a more direct sanction
against abusive debt collection practices, such as repeated telephone calls and
posting up copies of a debtor or guarantor’s identity card with an abusive message. The
Commissioner supports legislating against stalking and making it a criminal offence with
civil remedies available to victims.
3.35
The views received during the public consultation on stalking in 2011/12 indicated that
while there was support for introducing an anti-stalking legislation to afford better
protection to the victims, there were also serious concerns expressed over the
implications that such legislation may have on constitutional rights such as freedom of
7
See the LRC's
Report on Privacy: Regulating the Interception of Communications
, December 1996, paragraphs 6 to 9.
The Privacy Guidelines: Monitoring and Personal Data Privacy at Work
issued by the Commissioner focuses on the
monitoring activities carried out by employers where personal data of employees are collected.
8
See the LRC's
Report on Privacy and Media Intrusion
, December 2004, at paragraph 9.39.