Office of the Privacy Commissioner for Personal Data. Personal Data Privacy Liberal Studies Net Public Interest and Privacy Right

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Kelley Griffith
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1 Office of the Privacy Commissioner for Personal Data Personal Data Privacy Liberal Studies Net Public Interest and Privacy Right (A) Suggested Time: approx. 50 minutes (B) Area of Study: Related Modules Themes Key Questions for Discussion Module 2: Hong Kong Today Quality of life How do Hong Kong people view the priorities with respect to various aspects of quality of life? How can individuals or organisations contribute to the maintenance and improvement of the quality of life in Hong Kong? What are the obstacles to their efforts? Which groups of people are the most affected if these obstacles are not removed? Module 2: Hong Kong Today Rule of law and socio-political participation In what ways does the rule of law protect rights and promote the observance of responsibilities among Hong Kong people? (C) Course Outline: Item Item Suggested Key Teaching Points No. Time (mins.) 1 Warm-up Activity 10 Conduct a simple opinion survey in class 2 Background Information 10 Distribute background information about clandestine photo-taking of artistes by the media 3 Basic Knowledge 5 Introduce relevant requirements of the Personal Data (Privacy) Ordinance 4 Multi-Perspective Analysis 5 Think about clandestine photo-taking of artistes by media organisation from different perspectives 5 Classroom Activity 20 Instruct students to write feature reports 50 1

of quality of life? How can individuals or organisations contribute to the maintenance and improvement of the quality of life in Hong Kong? What are the obstacles to their efforts?

2 (D) Key Teaching Points: (1) Help students consider how to strike a balance between freedom of speech and privacy right. (2) Help students consider the relationship between public interest and privacy right. Item 1: Warm-up Activity Objective: Activity: Time: Help students understand the relationship between personal data privacy and public interest. Collect results from the class. 10 minutes In your opinion, which of the following item of personal data is most related to public interest? 1. Candid photos of artistes in the process of changing clothes 2. Medical records of senior government officials 3. Candid photos of civil servants during loafing 4. Photos of intimate acts of the general public on the street Count the results and invite students to analyse the reasons. Item 2: Background Information Objective: Activity: Help students fully understand the PCPD s rationale for determining that the two media organisations which had taken candid photos of artistes contravened the Personal Data (Privacy) Ordinance and study the case in depth. Distribute background information of the case to students for group discussion. Investigation report: Clandestine photo-taking of artistes by media organisations The PCPD published two investigation reports on 28 March 2012 on the collection of 2

Item 1: Warm-up Activity Objective: Activity: Time: Help students understand the relationship between personal data privacy and public interest. Collect results from the class.

3 the complainants personal data by Sudden Weekly and FACE Magazine respectively, which contravened the Data Protection Principle ( DPP ) of the Personal Data (Privacy) Ordinance ( the Ordinance ) regarding collection of personal data. Background The three complainants in these two cases are TV artistes ( Artiste A, Artiste B, and Artiste C ). Sudden Weekly and Face Magazine, through systematic surveillance means and using photographic equipment such as long-focus lens and magnifier, took photos clandestinely of their private activities at home and published the photos in their magazines. Most of the photos of Artiste A published in Sudden Weekly showed his naked body. Photos of Artiste B and Artiste C published in Face Magazine depicted their daily life and intimate acts at their home premises. Ground 1: The artistes reasonable expectation of privacy 1. An individual should be protected from unwarranted intrusion to his/her private life, irrespective of his/her social status and occupation. The complainants in question should not be deprived of this privacy right just because they are TV artistes. 2. In the circumstances of the present cases, the artistes have a legitimately high expectation of their privacy as they were staying in their homes which had an open view. Artiste A s flat was on a high floor of a building which was not exposed to public view within normal viewing distance. He would not reasonably expect that photos showing him in the nude would be taken by someone from a far distance using special photographic equipment such as long-focus lens and magnifier. Likewise, the flat where artistes B and C stayed faced a hillside not normally accessible to the public. They would not reasonably expect that photos of their intimate acts at home would be taken clandestinely. 3. The PCPD noted in particular that the clandestine photo-taking was arranged through systematic surveillance. The photographers spent several days, night and day to carry out their job. This amounted to a serious intrusion on the artistes privacy and could not be accepted as fair unless there were legitimate justifications. Ground 2: Public interest considerations Sudden Weekly argued that the photos and the accompanying article published in its magazine served a public interest as they showed that Artiste A was cohabiting with a female artiste, thus proving that his earlier denial to the media of cohabitation was 3

Sudden Weekly and Face Magazine, through systematic surveillance means and using photographic equipment such as long-focus lens and magnifier, took photos clandestinely of their private activities at

4 untruthful. Similarly, FACE Magazine also argued that its publication of the photos and the accompanying article was in the public interest as they showed the couple s cohabitation, contrary to their earlier denial to the media. But PCPD did not accept these arguments for the following reasons: 1. The state of cohabitation or otherwise is an individual s sensitive personal data which he or she is under no obligation to divulge to others. 2. There is no evidence that the artistes have talked about cohabitation on their own volition or in a high profile manner. They have responded to gossip gathering questions from the press instead of actively touting publicity. Their responses could be taken as a natural response to protect their privacy. Gossip news involves matters of interest of public, other than matters of public interest. 3. Unlike marriage, cohabitation is an ill-defined term subject to different interpretations. Even if photos taken of a couple staying together at home may show their cohabitation at the time of shooting, they provide no clue as to whether such a relationship existed in the past. In other words, any attempt by the two magazines to prove the falsity of the artistes earlier denial of cohabitation is doomed to be a futile exercise. 4. There should be many ways to show a couple s cohabitation relationship. The disproportionate use of lurid and sensational photos by the two magazines casts grave doubt on their contention that they have acted in the public interest rather than to satisfy readers curiosity of the private lives of the artistes concerned. The PCPD stressed that what may be of interest or curiosity value to the public is not necessarily in the public interest. Public interest must involve a matter of legitimate public concern. There is a distinction to be drawn between reporting facts capable of contributing to a debate of general public interest and making tawdry descriptions about a public figure s private life. Results of investigation Having considered all the circumstances of the two cases, the PCPD concluded that the clandestine photo-taking by the two magazines were highly privacy intrusive and not supported by public interest considerations. It constituted unfair collection of personal data and a contravention of DPP1(2) under the Ordinance. Questions for Discussion: 1. Do you think that the PCPD s rationale for the determination is reasonable? Why? 4

denial to the media. But PCPD did not accept these arguments for the following reasons: 1.

5 2. What is public interest? What is interest of public? In your opinion, which one does the private life of artistes belong to? Why? Item 3: Basic Knowledge Relevant requirements of the Personal Data (Privacy) Ordinance: Personal Data under Section 2 of the Ordinance Personal data is defined as any data relating directly or indirectly to a living individual; from which it is practicable for the identity of the individual to be directly or indirectly ascertained; and in a form in which access to or processing of the data is practicable. DPP1(2) Purpose and manner of collection of personal data Data users shall collect personal data by lawful and fair means. Item 4: Multi-Perspective Analysis 1. There is no definition of clandestine photo-taking under the current Ordinance. Do you agree that clandestine photo-taking should be prohibited by law? Why? 2. Some journalism scholars think that the boundary of gossip news is not clear, and sometimes gossip news may involve public interest. Do you agree with this? 3. Can you give some examples of incidents related to public interest and privacy right? Item 5: Classroom Activity: Objective: Detail: Train students ability of research writing Instruct students to write a feature report of about 500 words on the relationship between press freedom and personal data privacy based on the PCPD s investigation report. 5

indirectly to a living individual; from which it is practicable for the identity of the individual to be directly or indirectly ascertained; and in a form in which access to or processing of the data

6 References: 1. Office of the Privacy Commissioner for Personal Data (2012), Media Statement: Investigation Reports: Unfair Collection of Personal Data of Artistes by Media Organizations ( 2. Office of the Privacy Commissioner for Personal Data (2012), Investigation Report: Unfair Collection of Two Artistes Personal Data by FACE Magazine Limited ( 3. Office of the Privacy Commissioner for Personal Data (2012), Investigation Report: Unfair Collection of an Artiste's Personal Data by Sudden Weekly Limited ( 6

(http://www.pcpd.org.hk/english/infocentre/press_20120328.html) 2.

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