When private facts become a public matter

1
When private facts become a public matter

• Privacy vs public interest

2
What is the main concern?

• Privacy of individuals
• Public interest
• Public disclosure of private facts
• Relevance to the media

3
What is protected under existing law?

• Defamation or malicious falsehood -- not for true
  facts
• Breach of confidence Contempt of court --
  relevant for true facts
• PDO -- protects an individual against
  unauthorized disclosure of personal data, eg,
  limit the purpose of a disclosure, require
  consent, but has exemptions for journalists under
  DPP

4
The need to strengthen protection

• Inadequate civil remedy -- no general right to
  privacy or tort
• Truth can be embarrassing and damaging
• The private commercial interest of the media or
  newsworthiness
• Public figures, victims

5
The Warren and Brandeis essays

• Gossip is no longer the resource of the idle and
  of the vicious, but has become a trade, which is
  pursued with industry as well as effrontery. To
  satisfy a prurient taste the details of sexual
  relations are spread broadcast in the columns of
  the daily newspapers.
• --- in 1890 , about the American press

6
More

• Under our system of government, an individual
  can never be compelled to express his thoughts,
  sentiments and emotions (except when upon the
  witness-stand) and even if he has chosen to give
  them expression, he generally retains the power
  to fix the limits of the publicity which shall be
  given them.

7
Public figures major target

• Present life of former public figures
• Should a person receive more or less privacy
  protection because he is a public figure?
• What part of life of the public figures is of
  public concern?
• Celebrities paparazzi target in increasing
  privacy legislations, trespassing, stalking

8
Privacy of former public figures

• In the American case Melvin V Reid (1931), the
  defendant made a film depicting the plaintiff as
  a prostitute who had been involved in a murder
  case. The scandalous behavior shown took place
  many years ago, but when the film was released,
  the plaintiff had been entirely rehabilitated.
  The court held that the defendant had violated
  the plaintiffs right to privacy by using her
  real name in the film.

9
A public survey

• A survey by HKU in 1997 said that 91.6 of the
  respondents thought public figures and
  celebrities should enjoy the same level of
  privacy as ordinary citizens. 40.2 said the
  privacy of celebrities or the publics right to
  know were of equal importance. Only 21.7 said
  the latter was more important.
• In HK, ordinary people are also often victims of
  privacy invasion by the media

10
Legislative proposal in HK

• Consultation Paper on Civil Liability for
  Invasion of Privacy, HK Law Reform Commission,
  1999
• Creating a tort of invasion of privacy for public
  disclosure of a matter concerning the private
  life of another if the disclosure is seriously
  offensive and objectionable to a reasonable
  person.
• Defining private matters information about an
  individuals private communications, home life,
  personal or family relationships, private
  behavior, health or personal financial affairs.

11
Determining elements

• A reasonable expectation of privacy
• location, normally not in public places
• Nature of personal information disclosed
  intimacy details?
• Public disclosure -- put in ridicule or favorable
  light in the publics eye
• Means of obtaining information liable even if
  the means is lawful
• Offensiveness to a reasonable person

12
Examples of offensiveness

• Photos of people in emotional distress
• In the US case Daily Times Democrat V Graham
  (1964), it has been held that a newspaper was
  liable for publishing a photograph of a woman
  with her skirt blown up while she was standing
  over the air vent in a fun house.

13
More private suits for disclosure of private facts

• Victims of crimes
• The victim of a sexual assault in a jail in South
  Carolina sued a newspaper for printing his name
  in a story about the crime. The state Supreme
  Court held that the man could not prevail because
  the crime was a matter of public significance.
  (Doe v. Berkeley Publishers)

14
Disclosure of individuals' medical conditions

• The Colorado and Indiana Supreme Courts recently
  dealt with cases involving revelation of
  individuals' HIV status in the workplace. Though
  both courts concluded that the person claiming
  invasion of privacy had no valid claim, their
  decisions were based at least in part on holdings
  that the people being sued had not spread the
  AIDS rumors to enough other people to constitute
  "public disclosure." (Robert C. Ozer P.C. v.
  Borquez, Doe v. Methodist Hospital)

15
Proposed defenses for the disclosure tort in HK

• Consent to public disclosure
• Lawful authority of publication
• Protection of person or property
• Absolute or qualified privilege in defamation law
• Information in the public domainrecords,
  already-known private facts
• Public interest

16
Public interest

• What the public wants to know?
• Or what the public needs to know?
• Newspaper articles describing the private lives
  of ordinary individuals are not protected if they
  merely satisfy public curiosity and do not
  contribute to the formation of public opinion.
• --- Consultation paper of civil liability

17
Matters of legitimate concern to the public
(proposed)

• The prevention or investigation of crime
• The prevention of unlawful or seriously improper
  conduct, public dishonesty or serious
  malpractice
• The ability of a person to discharge his public
  duties
• The fitness of a person for any public office
  held by him or which he seeks to hold
• The protection of public health or safety,
  national security and security in respect of Hong
  Kong

18
Liability of intrusion another aspect of
privacy protection

• Intrusion often goes together with the public
  disclosure tort
• The means of acquiring private information is
  often intrusive
• The defense of public interest is only available
  for public disclosure of private facts,
  irrelevant to media intrusion two separate
  issues

19
Newsworthiness

• Protected by the US First Amendment social
  value an important factor
• Difficult to apply in practice anything
  published in the press is by definition
  newsworthy, depends on judges
• The privacy commercial interest of the media,
  circulation-driven
• Balancing freedom of press and right to privacy
  still a hard battle

20
Social responsibility of the media

• An obligation to inform the public
• An eye on the conduct of officers in public
  bodies and companies
• But it should also respect lawful rights of
  others in the privacy sphere
• A careful balance should be struck between the
  interests of expression and the interests of
  privacy.

21
Privacy or dishonesty a media v media privacy
case

• In German, a magazine report gave a detailed
  account of the adulterous affairs of a publisher
  of a local newspaper who was depicted as a man of
  low morals. The court held that the action
  against the magazine failed because the publisher
  was not a moralist as he had repeatedly
  publishing in his own newspaper articles blaming
  political opponents for their moral indecency.