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the media and freedom of expression. Having considered the views received from the
public consultation, the Government decided in 2014 that there were “no favourable
conditions to pursue the matter further”.
3.36
Since the law as it presently stands does not afford an aggrieved party the general civil
remedy for invasion of the different types of privacy interests (other than information
privacy), it would no doubt be helpful if a general tort on invasion of privacy be
introduced so as to widen the channel for redress to an individual whose privacy right
has been infringed.
9
3.37
For a data subject who suffers damage as a result of the contravention of a requirement
under the Ordinance, section 66 confers a right on the aggrieved data subject to
commence civil proceedings to seek compensation from that data user for the
damage suffered. Damage may include injury to feelings.
10
Up until now, few actions
have been filed against data users under section 66. Data subjects may have been
inhibited from instituting a civil law suit which is often costly and time-consuming. This
situation has been redressed under the Ordinance
11
by the Commissioner’s new power
to grant legal assistance to an aggrieved individual to claim compensation from a data
user for any damage suffered as a result of infringement of his personal data privacy
when certain criteria are met.
9
Recently, there has been some development in the area of a general tort of privacy. The Ontario Court of Appeal, in
the case of
Jones v Tsige, 2012 ONCA 32
, for the first time introduced a general common law tort of privacy, in relation
to intrusion upon seclusion.
10
In
Dr. Alice Li Miu-ling v The Hong Kong Polytechnic University, DCEO 1/2004
, the plaintiff claimed for damage suffered as
a result of the delay of the defendant in providing her with all the personal data requested in her data access request.
The Court ruled that there was no evidence to show that the plaintiff had suffered any damage or loss or in what way
her feelings were injured as a result of the defendant’s delay in complying with her data access request. In view of the
broad scope of personal data requested by the plaintiff, the Court accepted that the defendant needed more time
and resources to locate the requested data and was satisfied that the defendant had exercised due diligence and
taken reasonable care to provide the plaintiff with her requested personal data. A defence was successfully made out
by the defendant under section 66(3).
11
Section 66B of the Ordinance confers power upon the Commissioner to grant assistance in respect of proceedings
instituted to seek compensation under section 66 if (a) the case raises a question of principle; or (b) it is unreasonable,
regarding the complexity of the case or the applicant’s position in relation to the respondent or another person involved
or any other matter, to expect the applicant to deal with the case unaided.