52 / 192
of which are bulwarks of a free society. It is a case of the co-existence of two great
principles that need to be carefully balanced. A free press is, after all, a responsible press.
Freedom, of whatever form, will only thrive under law.
5.50
In the subsequent appeal against the Commissioner’s decisions in these cases
concerning the artistes (AAB No. 5 & 6 of 2012), the AAB upheld the decision of the
Commissioner and agreed that the collection of the photographs of the artistes in
question was by means which were unfair in the circumstances, in contravention of
DPP1(2). The AAB accepted that public interest was one of the factors to be considered,
and that where there were competing considerations, it is a question of balancing the
fairness in collecting the personal data against the public interest in knowing the truth. In
the circumstances of these cases, the AAB found that what the appellants sought to
expose (namely, the cohabitation between the artistes in question) was not in the
interest of the public. The AAB agreed with the observation made by the LRC of Hong
Kong (in paragraph 7.72) in its Report on Civil Liability for Invasion of Privacy that the
“mere fact that a person is an artiste or is engaged in some occupation which brings
him into public notice is not of itself enough to make his private life a matter of public
interest”. What may interest the public is not necessarily something in the public interest.
Employees Providing Past Medical Records and Consequential Disciplinary Actions
5.51
The fairness of the means of collection was also considered in the CX case mentioned in
paragraph 5.27 above. Although the collection of the cabin crew members’ medical
data was considered necessary under DPP1(1) in view of the airline’s duty to comply
with the Civil Aviation Directives to ensure that cabin crew members were physically fit
to perform cabin crew duties, the Commissioner found that there was an element of
threat in the manner the airline expressed this requirement especially through its
newsletter in which it was indicated that failure to provide consent would be treated as
a disciplinary matter. To that extent, the Commissioner concluded that the means of
collection of the past medical data by the airline was unfair in the circumstances. On
appeal to the AAB in AAB No. 3/2007, the AAB upheld the decision of the Commissioner.
5.52
CX subsequently applied to the Court of First Instance of the High Court for a judicial
review of the decisions made by both the Commissioner and the AAB.
37
The High Court
held that in circumstances where disclosure of personal data was properly rendered
mandatory, it was necessary for CX to advise the cabin crew of the adverse
consequences of failing to make disclosure, hence, the advice given by CX to its cabin
crew members did not of itself pose a threat or amount to an exertion of undue
influence on the latter. The Court quashed the decisions of the Commissioner and the
AAB.
5.53
In its judgment, the Court observed that the disquiet expressed by the Commissioner
and the AAB, “was to a material degree, based on the blunt and brusque manner in
which certain information concerning the failure to consent to deliver up medical
records under the [airline’s relevant policy] was conveyed to cabin crew members” in a
“threatening or oppressive tone of relevant literature”. In the learned judges’ views,
“fairness is a broad principle and, as to the manner in which personal data is to be
37
HCAL 50/2008
.