Greenleaf, Graham --- "Hong Kong's privacy tort proposals" [2001] PrivLawPRpr 59; (2001) 8(7) Privacy Law and Policy Reporter 135

Hong Kong’s privacy tort proposals

Graham Greenleaf

In its 1999 consultation paper Civil Liability for Invasion of Privacy (available at <www.info.gov.hk/hkreform/reports/index.htm>), the Hong Kong Law Reform Commission (HKLRC) put forward 28 draft recommendations for discussion, principally relating to the creation of two statutory privacy torts. The Commission is expected to make its final report on this reference by the end of 2002. If these final recommendations and subsequent legislation resemble the draft recommendations, then Hong Kong will become the leading jurisdiction in the common law world, outside the US, in providing enforceable privacy rights other than sets of information privacy principles.

The Hong Kong draft recommendations (reproduced below) are of interest in indicating possible approaches to defining general privacy torts and the defences to such torts. The HKLRC recommends the creation of torts of intrusion (rec 1) and of public disclosure of private facts (rec 3 and 4), but not the two other ‘US privacy torts’ (see the casenote concerning Lenah v ABC in this issue of PLPR for a summary) of appropriation of name or likeness (rec 7) or placing a person in a false light (rec 8). The general limitations on these actions for invasion of privacy would be that they must be carried out intentionally or recklessly (unlike most breaches of information privacy principles), and must be ‘seriously offensive and objectionable to a reasonable person of ordinary sensibilities’. No attempt is made to exhaustively define ‘private facts’ (rec 4).

The defences and exceptions to the torts of invasion of privacy recommended by the Commission are extensive (see recs 9-15, 18-20 and 27), and in many respects are similar to the defences to collection and disclosure of personal data found in information privacy legislation. The recommended defences to public disclosure of private facts are however much broader than for the disclosure of personal data in information privacy legislation, as they include:

• defamation defences such as qualified privilege (rec 14);
• matters ‘found in a public record which was readily accessible to the public’ (rec 15); and
• matters ‘of legitimate concern to the public’ (rec 18).

These are more carefully crafted definitions of privacy torts than have been found in most previous attempts to create statutory privacy torts; the Commission’s final recommendations and their progress will be of great interest.

Graham Greenleaf, General Editor.