Following are two submissions issued by the HKJA on 4 December 1999, on the reports by the Law Reform Commission’s Sub-committee on Privacy regarding (1) the regulation of media intrusion and (2) Civil Liability for Invasion of Privacy: (1) A SUBMISSION BY THE HONG KONG JOURNALISTS ASSOCIATION on the report by the Law Reform Commission’s […]
Following are two submissions issued by the HKJA on 4 December 1999, on the reports by the Law Reform Commission’s Sub-committee on Privacy regarding (1) the regulation of media intrusion and (2) Civil Liability for Invasion of Privacy:
(1)
A SUBMISSION BY THE HONG KONG JOURNALISTS ASSOCIATION
on the report by the Law Reform Commission’s Sub-committee on Privacy regarding the regulation of media intrusion
1. OVERVIEW
1.1 The Hong Kong Journalists Association (HKJA) has for several years expressed its concern about the deteriorating standards of ethics in the printed media in Hong Kong, including on occasion the media’s dubious intrusion of privacy. It has expressed particular concern over media
ethics since the outbreak of intense competition between the market leaders in the Chinese-language press in 1995.
1.2 That said, the HKJA strongly disagrees that the solution to this difficult and complex issue lies in the creation of a statutory press council for the protection of privacy, much less one that would in effect be government-appointed. Indeed, a survey of more than 1,000 journalists conducted by four media organisations — the HKJA, the News Executives Association, the Federation of Journalists and the Press Photographers Association — shows widespread and unequivocal opposition within the profession to the creation of a statutory press council for the protection of privacy. A total of 73 percent of respondents oppose the proposal. Just nine percent back the recommendation.
1.3 The HKJA itself has many objections to the proposal. First and foremost, it is our long-held view that there should be absolutely no government involvement in the regulation of media content and ethics. This is markedly more important in Hong Kong*s context, where democracy (and thus the checks and balances on executive power) is fragile and incomplete. It is true that the privacy sub-committee has made an effort to confer an air of independence on the proposed press council. But this is misleading. The fact that the chief executive will play a key role in the appointment process in our view weakens — even seriously compromises — any notional independence the body may have. The sub-committee also admits, in paragraph 8.87 of its report, that the government might have to finance the council. The sub-committee should be aware that the attempt to set up a press council in the mid-1980s died partly because it was being pushed by a former attorney-general. Suspicions of government involvement and interference have continued to this day.
1.4 Also of concern is the manner in which the privacy sub-committee appears to be elevating privacy concerns above those of freedom of expression. This raises questions about whether the government, if it put in place the whole gamut of weapons proposed in the sub-committee report, would bring privacy protection into serious conflict with the protection of freedom of expression under article 19 of the International Covenant on Civil and Political Rights (ICCPR), and may even be running roughshod over the established jurisprudence relating to the permissible restrictions on freedom of expression.
1.5 THE KEY TEST: The privacy sub-committee is correct in identifying the limitations on freedom of expression under article 19 of the ICCPR, in particular as they pertain to respect for the rights or reputations of others. It also notes that restrictions may be imposed only if they are provided for by law, and are necessary for respect of the rights or reputations of others. The sub-committee also recognises (in paragraph 1.19) the established principle that “(t)he requirement of necessity implies that the restriction must be proportional in severity and intensity to the purpose being sought.”
1.6 The privacy sub-committee goes on to argue that there is a pressing social need for strong action to be taken against intrusion by media organisations. In our view, however, the sub-committee fails to explain adequately why a statutory press council is strictly “necessary” (set against the test of being proportional to the purpose sought) as a remedy for such intrusion. It alleges merely that the industry is incapable of regulating itself.
1.7 THE SCALE OF THE PROBLEM: While the HKJA recognises there may be a need for some sort of action to be taken — possibly through the media industry and its representative organisations, the Broadcasting Authority and the privacy commission — the setting up of a statutory press council would be wholly disproportionate to the scale of the problem. These are complex issues and the government needs to reflect long and hard on the competing interests of privacy and freedom of expression and the legal and social framework in which they fall. At present, the sub-committee*s approach falls short of demonstrating the situation is so serious as to merit immediate legislation, and in some places shows a certain naivety about the workings of the media. Indeed, the failure of strong criminal and civil privacy laws in other jurisdictions suggests that ethical self-regulation is more appropriate for addressing these concerns.
1.8 The HKJA accepts complaints and has often criticised members and non-members for breaches of professional ethics in their work. In addition, in extreme cases, the HKJA has issued immediate statements condemning the most flagrant breaches of professional ethics. It is our contention that, while it may have its imperfections, such a system, if it were to be improved and expanded and based on mutual consent, would be the appropriate means of balancing the rights of privacy and freedom of expression.
2. THE PROBLEMS AS SEEN BY THE SUB-COMMITTEE
Below the HKJA examines some of the specific issues raised by the sub-committee:
2.1 VICTIMS OF CRIME AND TRAGEDY (2.6)/SURVIVING VICTIMS AND RELATIVES
(2.28). In many ways, this is one of the most disturbing aspects of local media coverage. In many cases, the HKJA agrees with the sub-committee that coverage can be insensitive and the agony of being a victim or surviving relative may be compounded by insensitive reporting. In addition, the HKJA agrees that in some cases it may discourage victims of crime from coming forward to the police or even compromise their safety.
2.1.2 In and of themselves, though, we do not believe these to be a legal infringement of privacy, particularly where balanced by the competing right to freedom of expression. Moreover, the questions raised here are complicated by issues of taste. While many people may find pictures of dead bodies distasteful, it must be remembered that there are issues of culture and custom which are beyond the report’s terms of reference. It is editorial discretion and sensitivity — the excision of
names and disguising of faces — which need to be brought to bear through pressure from within the profession rather than cumbersome and tendentious external legislation.
2.1.3 The HKJA and other media bodies have had some experience and some success applying such pressure, notably in the coverage of student suicides. Recognising there may be a “copy-cat” link between highly visible student suicides and new student suicides, it is general practice now among some newspapers to cover such incidents with greater circumspection. However, while the HKJA does not encourage sensationalist coverage of suicides, it does not advocate a boycott of
such stories either. It should be noted that an individual story, albeit tragic, might highlight a social problem in a far more dramatic and purposeful fashion than dry statistics.
2.1.4 There are laws, too, which can be brought to bear where media reports intrude on the accepted and reasonable (legal) privacy of victims and relatives. They are not always used. The authorities, for example, could have prosecuted in two cases where a newspaper article gave sufficient information to enable friends and relatives to identify victims of a sexual offence. They did not, although the police did issue statements on these cases. These are examples where adequate powers already exist to protect privacy in what are broadly accepted special
circumstances.
2.1.5 The privacy sub-committee must also guard against what are, in some cases, misleading examples. In the case of the housewife whose photograph was taken during a public protest, for example, surely the sub-committee is not suggesting that privacy rules should apply during
very public events? In sub-paragraph (e), the sub-committee appears also to be suggesting that information already in the public domain (albeit overseas) should be suppressed in Hong Kong for privacy reasons. It also suggests in sub-paragraph (g) that a story about the sordid side of the insurance business should be suppressed.
2.1.6 We also note that in paragraph 2.33, the sub-committee appears to have moved outside its area of referral. It is not within the terms of reference for it to speculate on the ethics of publishing pictures of a body in a bag or “the right to die with dignity.”
2.2 RECORDING IN HOSPITALS (2.21). The HKJA has many times had discussions with the Hospital Authority on this issue, and has made some progress with demarcation of areas to ensure media activities do not interfere with vital medical functions. The HKJA believes that the
special issue concerning hospitals is one of unauthorised entry and obstruction of medical activities. This is not strictly a privacy issue, because it is unacceptable even if no data is collected or published. Clearer regulations and more aggressive follow-up action by the Hospital Authority should help to improve the situation.
2.3 IDENTITY OF PARTIES AND WITNESSES IN COURT HEARINGS (2.37). If the sub-committee’s reasoning is taken to its logical conclusion – that no-one must suffer any form of inconvenience or embarrassment as a result of court proceedings — then court reporting would be stayed until the end of the trial to see whether the defendant is guilty or not. This is clearly unacceptable. The identification of witnesses and victims is a powerful disincentive against perjury. Moreover, the well-established principle that justice must be open, and be seen to be open, means the media have an important role to play in reporting the facts of court proceedings, including the identities of those involved (except in accepted circumstances where the victim is a minor or the
offence sexual in nature). If someone is robbed of their handbag, it is difficult to see why they suffer extra trauma by being named as a victim in open court.
2.3.2 Judges already enjoy very wide powers to restrict publication of identities. These powers are used intermittently (and sometimes wrongly). A more logical approach than a press council, therefore, would be for the judiciary to examine its own practices and come up with a code of its own, following consultation with the media and other relevant parties.
2.3.3 Further, the sub-committee is wrong to imply that newspapers voluntarily do not name victims in court if they are wealthy and powerful. Editors enjoy legal privilege in publishing this information. The reality would appear to be that courts are increasingly obliging to wealthy victims who turn up with a Senior Counsel and request a court order preventing their identity on sometimes flimsy grounds.
2.4 PAST CRIMINAL RECORDS (2.45). The HKJA believes that this is a complex issue and the sub-committee should not have come up with a “back-of-the-envelope” list of six guidelines without proper study or consultation. It should be considered as part of a review of rehabilitation, and not as a media issue.
2.5 JUVENILES IN COURT PROCEEDINGS (2.48), CHILDREN (2.100). The HKJA agrees that there is a case for reassessing the law in this area. The law has inconsistencies and is applied inconsistently. It should, however, be addressed through the Juvenile Offenders Ordinance and not
by a press council.
2.6 HARASSMENT AND FOLLOWING (2.58), DOORSTEPPING (2.64). In a previous reply to the Law Reform Commission, the HKJA stated clearly that while it understood that there could be a problem with harassment, the privacy sub-committee had failed to provide proper safeguards for honest, tough reporting. We said: “Many of those who wish to escape media attention are not victims but victimisers. They have good lawyers and should not be given a new weapon to harass reporters who are doing their job ethically.”
2.6.2 In many cases there are existing legal remedies. In the case of the paparazzi watch against a Court of Appeal judge (2.63), a staff member of the newspaper involved received a substantial prison sentence. It is difficult to see therefore how this case shows the media is somehow lacking regulation.
2.7 GATHERING INFORMATION BY CLANDESTINE METHODS (2.67). Much of this has been covered by a previous Law Reform Commission report. The HKJA believes that some examples of clandestine reporting cannot be justified, and that these generally would not satisfy a basic public interest test. However, there are many occasions when it is vital to high-quality investigative journalism. This is an area in which the HKJA is particularly concerned about the possibility of a press council abusing its powers.
2.7.2 In particular, it should be remembered that journalists would be prevented from investigating many issues of legitimate public interest if they were not able to use clandestine methods. An expose of links between illegal oil stations and customs officers, for instance, cannot be substantiated by ringing up the illegal oil operators and asking to speak to their spokesman. Someone will have to hide him or herself and watch activities at the illegal oil depot, perhaps for days and quite likely with a camera with a long lens.
2.7.3 There are dozens of examples of important investigations facilitated by such techniques. In many cases, the activities investigated are not illegal and thus no other agency apart from the
media would investigate them. But these inquiries may highlight facts of vital importance to the general public. Would the privacy sub-committee condemn a newspaper for using clandestine methods that showed prominent politicians visiting PR girls in a bar in southern China? Or that a very senior civil servant and his wife were shopping for fake goods?
2.7.4 The HKJA believes journalists should think very carefully about the use of clandestine methods, and should use them only where the public interest is at stake. But at the same time, it does not wish to see any obstacles placed in the way of such reporting, especially on public policy issues.
2.7.5 Finally, the HKJA would like to state that those who are exposed as a result of (legitimate) clandestine investigations should not be able to complain for having been found out. In paragraph 2.73, the report complains that the media may expose men “walking on the street in the company of a young lady.” It went on to note that such reporting could lead to family disputes. There is a Cantonese saying, not inappropriate in this context: “Those who eat salty fish will have to accept being thirsty.”
2.8 PUBLIC FIGURES AND THEIR FAMILY MEMBERS (2.89). The sub-committee is naive in its understanding of news values in this section. If a close relative of the chief executive were to buy, for example, Hong Kong’s largest shoe shop or become sick with a rare disease, then this is a
story in the public interest. It would allow the reader to make a more informed assessment, for example, of any government assistance to the shoe retailing industry or of a sudden announcement of medical research funds.
2.8.2 In addition, it fails to understand that many celebrity exposes are nothing of the sort. Newspapers do not normally waste manpower by ordering reporters to hang around flats owned by second-rate TV stars. Many supposed scoops are rigged by publicity agents desperate for coverage of fading or rising celebrities. In cases where the subject is a public figure whose professional success depends on public opinion, and for which there has usually been a great deal of money spent attracting media interest, it is questionable whether such individuals, having opened up their private lives to public scrutiny in pursuit of fame and wealth, can simply decide to exclude the media whenever it suits them. This seems particularly apt in cases where a celebrity has
assiduously cultivated a wholesome, family-oriented image in the media, only to be exposed as having a love-child by a mistress.
2.8.3 The point here is that while there may be abuse in some instances, he entertainment industry itself is not wholly innocent. The complex relationship between the media and entertainers makes privacy concerns much more difficult to evaluate. The sub-committee appears to have ignored such complexities.
2.9 ACCURACY (2.105). This is well outside the terms of reference of the sub-committee, and an area of great sensitivity, given that it is sometimes extremely difficult to determine where the truth lies. In some cases, an untruth may also be actionable in court, as with the case of the prominent businessman who was mistakenly reported as having terminal cancer.
2.10 CONCLUDING POINTS ON THE SCALE OF THE PROBLEM. A key fear of the HKJA is that any statutory press council will not be restricted to privacy issues, but will move into more sensitive areas of accuracy, taste and bias. It is not encouraging that the sub-committee itself has
moved outside its terms of reference and repeatedly made comments unrelated to privacy. For example, it commented on the ethics of publishing pictures of the dead; the quality of legal reporting in Hong Kong (2.38); and proper behaviour at funerals. If the sub-committee cannot restrict its opinions to privacy issues, what guarantee can there be that the Legislative Council or any press council will also feel so constrained?
2.10.2 Inevitably, newspapers do make honest mistakes under time pressure. In general, such mistakes are corrected. In cases where mistakes are deliberate or negligent, libel action is often the proper channel of recourse. Any failings in the libel laws, such as high lawyers’ fees, should not be plugged with a press council, but addressed directly. The HKJA is already concerned that newspapers come under strong pressure to “correct” articles that are accurate but embarrassing
to the rich and powerful.
2.10.3 The privacy sub-committee must also make a distinction between privacy as a right and minor issues of discomfort. It condemns, for example, “candid camera” type programmes (2.109). Are these such a social evil that laws must be passed to regulate them? It must not also become embroiled in issues of taste and news judgment. The subcommittee has devoted more than a page of its report to the case of the widower who preferred to visit women in Dongguan rather than attend the funeral of his wife and children. This issue was the subject of unprecedented
comment by the HKJA. In the event, the newspaper most at fault printed a front-page apology. The fact remains, though, that the widower voluntarily appeared on many TV shows and posed for photographs. This case was therefore an issue of taste and news judgment, not privacy.
2.10.4 The HKJA is also concerned about the tone of the report, which appears to suggest that journalists should focus only on serious issues and not on more light-hearted stories and features. This is the debate concerning reports which are “in the public interest”, and those “of public interest” (1.48). The reality is that many readers wish to read entertaining articles. The sub-committee must admit that readers are by and large more interested in the love life of Jackie Chan than the district council elections. It would be a sad day if only high-brow news was to be recognised, and all our newspapers were turned into copies of the People’s Daily or Pravda.
2.10.5 The HKJA has never hidden its view that there are ethical problems in the media. However, if the sub-committee removes cases unrelated to privacy and those in which an avenue of redress already exists, then the problem looks considerably less dramatic. The sub-committee, in brief, has failed to make a convincing case for the kind of draconian solution it is proposing.
3. THE SUB-COMMITTEE’S ARGUMENT FOR A STATUTORY PRESS COUNCIL
3.1 The privacy sub-committee devotes an entire chapter to the way overseas countries and territories tackle the problem of media ethics. It focuses on press councils in nine jurisdictions. In one, the United States, the national system collapsed, leaving just a few local councils. Many of the other jurisdictions, including Taiwan, have non-statutory councils. Indeed, this is the trend in many democratic countries. Only where Britain is concerned is reference made to calls for a statutory body, in the form of the Calcutt report. This proposal was eventually rejected in favour of a non-statutory press complaints commission.
3.2 The privacy sub-committee, in putting forward its argument for a statutory body, appears to ignore the success of many non-statutory bodies. Indeed, in at least one instance, it appears to mislead where, in using the British example, it claims in paragraph 4.12 “that a code drafted, issued and enforced by the industry is unlikely to command the confidence of the public.” The fact is that the British commission’s code of practise was written by a committee of editors, and ratified by
the full commission, which had been set up and financed by the industry.
3.3 It would appear that in its enthusiasm for the statutory route, the privacy sub-committee wishes to bring out the negative side of non-statutory councils. True such bodies do have their credibility
problems, but so too do their statutory counterparts. It would be absurd to suggest that the government could solve all ethical problems simply by setting up a statutory council in Hong Kong. Indeed, it can be argued, as we do below, that such a move in itself would create serious credibility problems.
3.4 A MISGUIDED APPROACH: The privacy sub-committee suggests that a statutory press council would not diminish press freedom because there is already a functioning precedent in the form of the Broadcasting Authority, which operates in a similar way to a press council. The
sub-committee appears to ignore the fact that limits on the number of possible broadcasters and the far greater influence of radio and television have necessitated the establishment of a statutory framework.
3.5 These limitations do not apply to the printed media. The approach in many democracies has therefore been to limit controls on the media to traditional areas such as contempt of court and defamation, and to shy away from ethical issues, which should best be left to the industry.
3.6 THE NEED FOR CAUTION: The privacy sub-committee appears to be obsessed by the failure of the popular press to do anything to curb its excesses. It argues in many sections of its report that Hong Kong must have a statutory press council because the industry is incapable of getting its act together (4.30, 4.42, 7.19, 7.45 and 7.46). The HKJA has been the first to admit problems of an ethical nature in the media, though in our view it is not accurate to characterise the printed media
as somehow acting in an utterly irresponsible and wholly unrestrained fashion. Nor has it been wholly unresponsive.
3.7 The reality is that the press has never been given a real opportunity to get its act together. No organisation will give up its autonomy voluntarily or lightly, and this is as true with the media as
for other groups. The attempt to set up a media council in the mid-1980s failed because it was perceived by many to be a government-engineered move. Further, the media was more concerned at the time about press freedom issues in the run-up to the handover.
3.8 The privacy sub-committee recognises this latter concern in paragraph 4.43, although it goes on to argue that because of Basic Law guarantees of press freedom, now is the time to put more emphasis on journalistic ethics. While the HKJA would subscribe to this latter line of thinking, it would reject the assertion that press freedom is now safe simply because of the existence of article 27 of the Basic Law. The threat of Basic Law article 23 offences continues to loom over the
industry. There will always be a need to balance freedom of expression and privacy issues, but Hong Kong must still remain extra-vigilant over the former, particularly given the SAR*s democratic deficit.
3.9 Given the relatively recent deterioration in ethical standards, the HKJA would argue that the media should not move quickly to a position of last resort, in the form of a statutory press council. In Britain, for example, the first press council was set up in 1953. The non-statutory Press Complaints Commission was not set up until 1991, almost forty years later. Hong Kong should likewise not rush into decisions which it may regret at a later date. However, that does not mean that nothing should be done. The HKJA will outline an alternative approach in a later part of this paper.
4. THE SUB-COMMITTEE’S PROPOSAL FOR A STATUTORY PRESS COUNCIL
4.1 The HKJA has argued above that the reasons advanced by the sub-committee for establishing a statutory press council do not meet the high standards of necessity and proportionality (recognised by the sub-committee itself), and in some cases are spurious, ill-informed or flawed. Below we examine the subcommittee*s proposals for the setting up of such a body. We will argue that:
4.2 — The method of appointment of members of the proposed statutory press council ignores the reality of today’s political environment in which Hong Kong faces a democratic deficit;
— The appointment system will put the body in danger of being a government tool;
— The operating powers of the council are too wide. They go far beyond the tests imposed by the ICCPR. It therefore risks becoming a tool of harassment, which could drive newspapers to acquiescence or even insolvency;
— Its operation will be expensive.
4.3 THE FALLACY OF DEMOCRACY. The sub-committee is misguided in suggesting in paragraphs 7.23 to 7.26 that the legislation setting up a press council will be endorsed by a legislature which represents the public interest and is fast moving towards full democracy. In short, the method of appointment of members ignores the reality of today’s political environment.
4.3.1 The reality is that Hong Kong has less democracy than even before the handover. The government should therefore restrict its activities in line with its negligible popular mandate. In fact, the sub-committee’s proposals take a naive view of Hong Kong’s current political system:
4.3.2 CLAIM: “First, the Basic Law has promised that all members of the Legislative Council shall ultimately be returned by universal suffrage. It is highly unlikely that a legislature constituted by election would modify the mechanism in such a way as would knowingly infringe fundamental human rights.” (7.24)
4.3.3 REALITY: Government officials have never made any promise to have a fully-elected legislature at any date at all, and will not even consider the issue in detail until shortly before 2007. Even then, any change is likely to be slow and tortuous, with entrenched interests, such as the functional constituencies, unwilling to give up their Legco seats.
4.3.4 CLAIM: “The legislature, as the body representing the interests of the general public, is well suited to define the parameters within which press regulation should operate if the press fails to regulate itself effectively.” (7.26)
4.3.5 REALITY: The legislature does not represent the interests of the general public. A minority of members are directly elected. The majority are elected by a system of “rotten boroughs” that include constituencies where individual electors can control a multitude of votes.
4.3.6 The HKJA does not fear that any body will act outside its legal powers. Indeed, we believe that at present, the courts would swiftly put an end to that. Our fear is that this group of highly unaccountable legislators will pass government proposals irrespective of their merits. Under current Legco rules, any legislators supporting the protection of freedoms would be unable to introduce amendments to make the proposals more palatable.
4.3.7 In conclusion, the HKJA believes that the Legislative Council cannot be trusted with a law of this sensitivity until every member is directly elected through universal and equal suffrage.
4.4 THE APPOINTMENT SYSTEM COULD MAKE THE COUNCIL A GOVERNMENT TOOL. The reality is that in Hong Kong for the foreseeable future, political power will be concentrated in the hands of a chief executive steered into power through a wholly undemocratic process. The chief executive is the person who must start the ball rolling by finding the individual who selects the appointments committee. What kind of person is the chief executive likely to put forward? Is it going to be a feisty champion of press freedom? Or a pro-establishment personality with a talent for agreeing with the government?
4.4.1 It is not necessary to speculate. In July, an English-language newspaper carried an analysis of 3,500 advisors on 374 committees. It showed clearly that democrats, grassroots organisers, women and people with a direct personal stake in the policy being formulated were systematically excluded from government advisory committees.
4.4.2 The proposal that the individual responsible for choosing an appointments committee should be appointed in consultation with the industry is a good one. But the reality is that this relies on trust between the chief executive and the press, which is not at all certain, or healthy, given the underlying tension that exists between the government and most sections of the media. It also ignores the very real risk that the chief executive and the press may be unable to agree, and
that the choice of some pro-government editors may be adopted.
4.4.3 If a bad choice is made, that will be reflected further down the line. The reality is that if a conservative, pro-Beijing businessman is selected to choose the appointments committee, he or she will never choose a liberal figure to serve on the appointments committee, and this means that the so-called “public members” are likely to consist of Gold Bauhinia recipients and the heads of large businesses.
4.4.4 The HKJA concludes that the method of initiating the process of creating a press council is so flawed that it would on its own render the body unacceptable.
4.4.5 In an attempt to bolster its argument, the Law Reform Commission quotes “other examples of statutory bodies which are independent of the Government and have won the respect of the public.” They include the Judicial Officers Recommendation Commission and the Independent Police Complaints Council. Perhaps it would be wise to remember that Sir Joseph Hotung was dropped from the Judicial Officers Recommendation Commission at the time of the handover. Sir Joseph is a well-known supporter of human rights, and even made a financial contribution to Ms Emily Lau. As for the Independent Police Complaints Council, this body oversees a system held in widespread contempt.
4.4.6 There is one further anomaly in this part of the proposal — the recommendation that the privacy commissioner should be named to the council as a voting public member. This proposal seems bizarre, in that a direct appointee of the chief executive takes away one seat from the
public element. It would appear fairer to the appointment system if the privacy commissioner was a non-voting member. (Separately, there are also strong arguments for suggesting that the commissioner should no longer be appointed by the chief executive, or that he or she should be
appointed only after a process of legislative ratification.)
4.5 THE OPERATING POWERS OF THE COUNCIL ARE TOO WIDE. Any press council
should be victim-centred. In other words, it should have as its primary focus the righting of wrongs from the point of view of someone whose privacy is invaded. However, the wide powers proposed for the proposed council make it very easy for the committee to teach the press a lesson, even in the absence of any complaints. In particular, it could pursue a vendetta against individual newspapers. The excessive powers are as follows:
4.5.1 Accepting third-party complaints: The HKJA believes that third-party complaints are contrary to the spirit of putting the victim at the centre of the process. Any council should accept complaints only from the victim or those with a close, clearly definable relationship with the victim, such as the next of kin of someone who has died;
4.5.2 Initiating investigations without the receipt of a complaint: The element of discretion involved in this mechanism opens the door to political favouritism. Anti-government newspapers might find themselves suddenly facing a mysterious number of investigations. It is difficult
to see how any safeguards can prevent this. Allowing investigations without receipt of a complaint is unacceptable. It should be dropped;
4.5.3 Preventing legal representation: This may well be contrary to guarantees in the Basic Law and the ICCPR, given the statutory nature of the proposed council and the enormous size of the fine that could be levied. Instead of banning lawyers, the council should make sure that those without lawyers, such as poor complainants, are not put at a disadvantage;
4.5.4 Complete discretion to drop investigations: What guarantee is there that pro-government newspapers will not get favourable treatment? None. The HKJA can think of no way of solving this;
4.5.5 Allowing investigations to continue even if an individual has withdrawn his or her complaint: So much for the press council protecting the rights of victims. This approach appears to betray the reality that victims are not the focus of the council. The focus is teaching the press a lesson;
4.5.6 Holding hearings in private: Is this 1999? Or 1899? Many reporters in Hong Kong remember when Legislative Council committee meetings were held in private. They wrote their reports based on what Legco members told them. Those days, however, have thankfully passed. The council will
be able to exercise quasi-judicial functions and will have the power to levy huge fines. All meetings of the full council and its complaints committees should therefore be held in public;
4.5.7 The ability to impose fines of HK$1 million: This is perhaps the most bizarre aspect of the commission’s proposal. The idea that the council should be able to decide on a fine of up to HK$1 million without the victim of the alleged intrusion even making a complaint is sinister. That any victim would not even see a single dollar of the fine is bizarre. Quite how this would, as the privacy sub-committee claims, “convince the public that it is worth making an effort to make a complaint” is difficult to see. Indeed, the proposal almost seems designed to undermine public confidence in the system. After a few people have won their case, only to see large fines levied and then
disappear into government or press council coffers, the body would be held in public contempt;
4.5.8 The council’s operations will be expensive: The UK Press Complaints Commission costs, according to the report, more than one million pounds a year. Will the Hong Kong council cost any less? It seems unlikely. For a start, salaries and office accommodation are more expensive in Hong Kong. The “retired judge or senior lawyer” who will chair the council will, if lawyers’ fees in Hong Kong are anything to go by, want more than his or her counterpart in the UK.
4.5.8a If legislation restricts the council’s activities to privacy, it might receive fewer complaints than its British counterpart. However, by accepting third-party complaints, it is opening the floodgates to a mountain of work. For example, the Broadcasting Authority receives about 250 complaints a month, according to the body’s latest annual report (1997/98). It allows third-party complaints, including the following:
* TVB’s Super Trio Mega Show broadcast on 30th August 1999: Twelve viewers complained about the programme. Most of the complainants alleged that the wastage of food portrayed in the game segment exerted a bad influence on children;
* An advertisement for “Park’n Shop–Price Watch.” A viewer complained that the advertising claim “(Park’n Shop — Cheapest Price Watch)” was not true given that the advertisement had revealed that the same commodities in a direct sale shop would only cost HK$280, which was
lower than the HK$282 charged by Park’n Shop. In fact, an investigation by the Broadcasting Authority showed that the price being charged by Park’n Shop’s major rival was HK$285;
* A complaint about “Police Magazine”: A viewer wanted the programme presenter to be replaced as her hairstyle, attire and manner of speaking were poor and did not suit the serious nature of the programme.
4.5.8b Weather forecasts, music videos and mobile phone adverts: All had to be investigated as the complaints flooded in. Often civil servants must replay tapes of whole programmes after allegations of foul language which sometimes turn out to be caused by a viewer mishearing a perfectly innocent remark. In other words, there is every chance the new body will receive a large number of trivial or eccentric complaints.
4.5.8c The funding mechanism proposed by the Commission also gives the press council no incentive to reduce its costs. It can simply increase its levy with no external (democratic) supervision at all. Indeed, if a levy system is not practical, the sub-committee makes it clear that
funding should be allocated by the government. Such a move would open the body to further accusations that it is not independent. Further, funding requests could become hostage to political wrangling in the Legislative Council’s finance committee.
5. CONCLUSION AND ALTERNATIVES
5.1 CONCLUSION: The HKJA must conclude that the proposal to set up a statutory press council for the protection of privacy is a misguided attempt to deal with a problem, which although serious, is not irredeemable. The resort to legislation to tackle an ethical problem could well threaten the very freedom that is meant to be protected in article 19 of the International Covenant on Civil and Political Rights. This could cause irreparable harm not only to freedoms as a whole in the Special Administrative Region, but also to the SAR’s international reputation. It is surely in Hong Kong’s best interest to steer well clear of the statutory route.
5.2 ALTERNATIVE APPROACHES: The HKJA is of the firm view that a non-statutory approach must be adopted. Conceivably, this could involve efforts by the Privacy Commissioner and the Broadcasting Authority to draw up codes of practise on privacy, although the HKJA has serious
reservations about whether the powers of these bodies should be extended. However, if the government does adopt this course of action, then the drafters must involve the media in the process, and clear public interest defences must be included, to ensure that legitimate
investigative journalism is not threatened.
5.2.1 The HKJA believes that the best approach to the problem of intrusion is for the media to involve itself in a process of self-regulation. How this should be done, however, has been a bone of
considerable contention. The survey carried out by four media groups among more than 1,000 journalists also shows considerable confusion on this issue. When asked to give their views on the best mechanisms to strengthen professional standards, 52 percent of respondents opted for internal regulatory mechanisms as their preferred choice. Thirty-five percent chose a non-governmental statutory monitoring body. Many respondents pointed to the need for professional associations to
strengthen their complaints mechanisms, the creation of a non-statutory monitoring organisation formed by media practitioners, and the formulation of a media-wide code of practise.
5.2.2 At the same time, respondents indicated doubts about whether internal mechanisms could work. A significant 42.5 percent of respondents were neutral on this question. About 27 percent thought the measures would work, while almost 20 percent believed they would not. In response to the following question, about whether a statutory non-government monitoring organisation should be set up, almost 56 percent agreed to a greater or lesser extent.
5.2.3 The ambivalence inherent in the survey results prompts the HKJA to take a cautious approach towards the question of media self-regulation. While there are concrete steps which the media can take in the near future, the industry should not rush into setting up a press council. The HKJA has therefore proposed the following action plan:
1. Media groups and newspapers should draft and adopt a common code of ethics. It should be more detailed than the Hong Kong Journalists Association’s code, in use now for the past 30 years. It needs also to be more detailed than the draft recently drawn up by the News Executives Association. For example, it should address concerns about intrusion in a detailed manner.
2. Once there is sufficient agreement on a code, representative organisations should try to get it worked into the job contracts of news executives and frontline journalists. This would provide protection for journalists who are asked to adopt a non-ethical approach to news-gathering. It would also allow an employer to take some form of disciplinary action against an employee who breaches the code of ethics.
3. Representative organisations should work hard to persuade individual newspapers to print letters from aggrieved readers. The publication of letters from complainants goes a long way to avoiding the subsequent lodging of formal complaints. Newspapers should also be encouraged to appoint their own independent ombudsmen, to accept and investigate complaints from the public.
4. In the longer term, media organisations should consider setting up an industry-wide ethics committee to take public complaints based on alleged breaches of the common code of ethics.
5. The profession should set a timetable for considering whether to set up a non-statutory press council with public representation. The timetable should be long enough to allow participants in the review adequate time to evaluate the effectiveness of the above measures adopted by media organisations and individual publications.
HKJA Executive Committee
December 4th, 1999
**************
(2)
SUBMISSION ON THE REPORT BY THE LAW REFORM COMMISSION’S SUB-COMMITTEE ON PRIVACY REGARDING CIVIL LIABILITY FOR INVASION OF PRIVACY
1. The Hong Kong Journalists Association (HKJA) notes the privacy sub-committee’s consultation paper on civil liability for invasion of privacy. While the HKJA has been sympathetic to moves to bring about greater respect for privacy, it has serious concerns about the direction being contemplated in this latest report.
2. The sub-committee is proposing two new torts – intrusion upon the solitude or seclusion of another, and giving publicity to a matter concerning the private life of another.
3. The tort of giving publicity to a matter concerning the private life of another is undoubtedly a restriction on free speech. The other tort, intrusion upon the solitude or seclusion of another, is not an immediate restriction on free speech, although it could have a serious effect on the investigative activities of journalists.
4. As such, these torts must meet the test laid down in Article 19 of the International Covenant on Civil and Political Rights for restrictions on freedom of epxression. This means they must be aimed at meeting a pressing social need. The sub-committee’s report appears to fall short in this regard.
5. One of the few examples given in the report is the case of the university student whose hostel bedroom was subject to covert video-taping. This case has already been subject to legal action. It is
therefore difficult to see how this particular case shows that Hong Kong is lacking in redress mechanisms.
6. Further, there appears to be an experimental nature to the sub-committee’s proposals. It quotes from many overseas law reform commissions, which have studied privacy issues. But the reality is that many common law jurisdictions have shied away from specific privacy torts. The enactment of such torts in Hong Kong could open the door to abuse, irrespective of the public interest and other defences that are being proposed.
7. The sub-committee is proposing that it should be a defence to an action for invasion of privacy based on public disclosure of private facts if the matter publicised was a matter of legitimate concern to the public. It goes on to list six areas which may be considered to be in the public interest.
8. The HKJA is concerned about how broadly or narrowly they may be interpreted. Middle-class, well-educated judges may have a very narrow view of the concept of “legitimate concern to the public”, and may make rulings which restrain what journalists would consider to be legitimate
investigative reporting. The proposed safety-net is therefore not secure.
9. Further, the sub-committee appears to be arguing, in paragraph 11.120, that there should be no public interest defence for those intruding upon another’s solitude or seclusion. It argues that “(t)he
means of acquiring personal information and the publication of the information acquired by such means are separate issues which should not be conflated.” In other words, a journalist may argue a “public interest” defence for publication, but at the same time may face action for the act of intrusion.
10. The HKJA would argue that there may be occasions, admittedly rare, when an intrusion may be justified. The sub-committee’s proposals appear to be precluding any such possibility, and would therefore be a serious impediment to investigative journalism.
11. The HKJA would also argue that prior publication should be a defence in all circumstances, even if the information had been culled from newspaper clippings several years before re-publication. The argument that this defence should apply only to prior publication in a public
record “which was readily accessible to the public” threatens the activities of the investigative journalist who may have the time and resources to delve into archives which are not so readily accessible to the public. The only possible exception would appear to be the question of spent convictions.
12. We are further concerned about references by the sub-committee to incidents which happen in the public domain. There seems to be some confusion about whether an incident which takes place in public, and which might be highly embarrassing, should be considered to be in the public domain. Paragraph 11.37 clearly states that it should; yet in paragraph 8.35, the sub-committee appears to be arguing that there may be exceptions. The HKJA rejects this latter approach.
13. This brings the HKJA to a larger issue, and one which is now worrying journalists more than in the past – the way that privacy concerns are impinging increasingly on freedom of expression and press freedom. Indeed, 72 percent of journalists surveyed by four media organisations in October 1999 expressed disagreement or strong disagreement with the proposal that the Privacy Commissioner should formulate and enforce a code of practise on privacy for the news media.
14. There is a growing feeling among journalists that the privacy commissioner may be delving into potentially dangerous areas. These include the taking of photographs in public places, and the possible drawing up of a code of practise governing when photographers may do this, and when they may not. The sub-committee accepts, in paragraph 7.33 and footnote 25, that this area is problematic. Indeed, Mr Justice Keith has recently questioned whether the taking of photographs in a public place constitutes the collection of data.
15. The HKJA makes these points to argue that much of what is happening in the area of privacy is being done in a piecemeal manner. While the government embraced with enthusiasm the Law Reform Commission’s proposal to enact the Data Protection (Privacy) Ordinance, it appears to be
shying away from doing anything about the controversial issue of interception of communications. Ironically, this latter area is the one with the greatest impact on personal privacy, since it allows the law enforcement authorities to tap telephones with virtual impunity.
16. The government needs to review the dual questions of privacy and freedom of expression, so that a proper balance might be achieved. Indeed, the HKJA feels that the government and the Law Reform Commission should avoid the temptation of seeing legislation as the solution to all problems. The issue of intrusion into solitude is in many ways one of morals, taste and
good manners, and the law is a blunt tool in these areas.
17. It should also be noted that legal action is out of the reach of many people in Hong Kong, and their ability to protect themselves through a tort action is limited. By contrast, a rich business executive is more than capable of using any legal avenue available to harass diligent journalists and put them off what may be a legitimate trail. The fact that torts give rise to civil actions with a lower threshold of proof only increases this risk. If the intrusion is of such a scale that it constitutes harassment or intimidation, it should quite simply be treated as such and dealt with under existing laws or the proposed legislation on stalking, if that is enacted.
18. Finally, the HKJA is deeply concerned that the existing Legislative Council, in which members elected through a genuine democratic process are in a minority, should not enact legislation affecting such a fundamental right as freedom of expression. Until the legislature is properly elected, Hong Kong has a “democratic deficit”, in which members not accountable to the general public can twist even a well-meaning bill into an ordinance that is harmful.
19. In conclusion, the HKJA cannot accept the proposal to create two new civil torts under current circumstances. Such a move would be a potentially dangerous experiment with harmful repercussions for the media and investigative journalism. If the sub-committee believes that
these torts would be useful, it should prepare an account of real problems facing Hong Kong residents that cannot be solved by existing laws, and demonstrate that the new torts will solve them.
20. However, there is one area in which the HKJA would back the sub-committee. We agree that there is scope for improving protection for victims of sexual offences, and would support any move to extend the protection afforded under sections 156 and 157 of the Crimes Ordinance. The government should consider how best to protect such victims from the time a sexual offence takes place.
21. At the same time, though, we would urge caution in pursuing the question of anonymity for victims of other crimes, as proposed in recommendation 17. While it may be wholly legitimate to protect the identity of an AIDS sufferer, there may be other cases in which an influential personality may wish to seek a court order preventing identification merely to protect him or her from some relatively inconsequential embarrassment. Any change to the law should therefore be
worded in such a way as to preclude any such possibility.
HKJA Executive Committee
December 4th, 1999
