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

Systematic Surveillance and Using a Long-Focus Lens

5.45

The adoption of systematic surveillance and use of long-focus lens cameras to record

images of three artistes were the key issues considered by the Commissioner in his

investigations against Sudden Weekly Limited and Face Magazine Limited (the

magazines).

The images were published in the magazines depicting the daily life of the

artistes and intimate acts, with intent to be suggestive of their cohabiting.

The primary

issue before the Commissioner was whether the images (being the personal data of the

artistes) were collected by unfair means in the circumstances.

5.46

The Commissioner considered the following factors in his deliberations, namely, (i)

whether the artistes had a reasonable expectation of privacy in the circumstances of

being watched and photographed; and (ii) whether the publishers’ collection of the

artistes’ personal data involved any public interest.

5.47

For factor (i), while an artiste may welcome some publicity in public places or when

engaged in public activities, the Commissioner was of the view that he has a reasonable

expectation of privacy in his own home. It transpired from the facts that the photographs

were taken from a far distance and the artistes were at their places of residence which

were not easily visible to the public.

The photographs were taken over a period of days and some of the images were

captured at night. Although the artistes might expect that entertainment reporters

would take photographs of them, they would not reasonably expect someone to stay at

the site, night and day for several days to take photographs of them by means of a

long-focus lens camera. The Commissioner found the photographers’ act of prolonged

and systematic surveillance of the artistes’ activities inside their residences and the

shooting of the photographs of these artistes from a long distance by special

photographic equipment had seriously intruded upon their privacy. Intrusive acts of this

sort could only be justified on the grounds of overriding public interest.

5.48

For factor (ii), the Commissioner considered that the distinction should be drawn

between the acts of reporting facts capable of contributing to a debate of general

public interest and making tawdry descriptions about an individual’s private life. If the

reporting does not involve a matter of public interest and its purpose is merely to expose

an artiste’s private life, the media must collect the artiste’s personal data by fair and not

privacy intrusive means.

5.49

Having taken the above factors into account, the Commissioner found that the

magazine publishers’ acts (committed through their photographers) of collecting the

artistes’ personal data in the circumstances were unfair. The Commissioner emphasised

the importance of striking a proper balance between the freedom of the press and

privacy protection, referring to the judgment of the Eastweek case:

49. …. There is no such thing as unqualified freedom of the press or absolute right of the

individual. This is not a case of freedom of the press versus the right of the individual both

See Investigation Reports Nos. R12-9159 and R12-9164, available on the Website: