EASTWEEK PUBLISHER LTD. AND ANOTEHR v. THE PRIVACY COMMISSIONER FOR PERSONAL DATA

HCAL 98/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 98 OF 1998

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J U D G M E N T

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Introduction

1. This case is all about a photograph. It appeared in a magazine. The young woman depicted in the photograph complained about it to the Privacy Commissioner for Personal Data ("the Commissioner"). He upheld her complaint. In this application for judicial review, the Commissioner's decision to uphold that complaint is challenged. This is the first time that the exercise of the Commissioner's powers have been the subject of judicial review.

The facts

2. "Eastweek" is a glossy weekly magazine in colour with a wide circulation in Hong Kong. It is in the Chinese language. The photograph with which this case is concerned appeared in its issue of 25th September 1997. It was one of five photographs used to illustrate an article about women's fashion in Hong Kong. The photograph in question showed a young woman apparently waiting to cross the road. It was sufficiently large and clear for her to be recognised by anyone who knew her.

3. The photograph had been taken at some distance by a photographer using a long-range lens. The complainant was unaware that she was being photographed. Indeed, it is conceded by the photographer that that was intentional. He claimed that the reporter wanted to capture the woman's natural pose, and informing her beforehand of his intention to photograph her would have defeated that object.

4. If the matter had been up to me, I would have been very sceptical of this justification for not informing her of what he was going to do. The women in three of the four other photographs used to illustrate the article were clearly posing. They are shown facing and smiling at the camera. If the photographer was content for them to pose for the camera, why was he so keen to catch the complainant's natural pose? And if the article was about women's fashion, why was a natural pose so desirable? Moreover, the comments in the article about the three women who were posing were far more flattering than the comments about the other women. That especially applies to the complainant, whose dress sense was criticised. One is left with the distinct impression that the reason why she was not asked to consent to her photograph being taken was not because of the need to catch her natural pose, but because it was thought that she would not consent to being photographed if she had been told that the photograph would be used to illustrate unflattering comments about her dress sense. However, the Commissioner proceeded on the basis that the photographer's justification for not informing her beforehand of his intention to photograph her was true, and in the circumstances I have laid my scepticism to one side.

5. It is common ground that the complainant's consent for the photograph to be published was not obtained either. The photographer claimed that, immediately after the photograph had been taken, he and the reporter accompanying him had gone at once to where the complainant had been standing to ask for her permission for the photograph to be published. However, they were obstructed by traffic, and when they got to where she had been, she was no longer there and could not be seen. Again, the Commissioner could not have been criticised if he had been sceptical as to whether an attempt had truly been made to speak to the complainant, but since the Commissioner did not doubt that such an attempt had been made, I have again put my own scepticism to one side.

6. Although the Commissioner did not doubt that an attempt had been made to obtain the complainant's consent to the publication of the photograph, he also took the view that at the time when the photograph had been taken, the photographer had not had reasonable grounds for believing that he or the reporter would succeed in reaching the complainant to ask for her consent. That view of the Commissioner was based on (a) the distance between the complainant and the photographer when the photograph was taken, and (b) the fact that the street was crowded at the time, the photograph having been taken in Causeway Bay at about noon on a Saturday.

7. In due course, the photographs which had been taken were submitted to the magazine's editorial department. The editorial department was informed which of the photographs had been taken with the consent of the women depicted in them and which had not been. It is not disputed that the editorial department must have known that the complainant's consent to the publication of the photograph had not been subsequently obtained either. Despite that, the photograph was published - and published without the complainant's face being obliterated. The complainant recognised herself, and on 29th September she lodged a complaint against the magazine with the Commissioner under the Personal Data (Privacy) Ordinance (Cap. 486) ("the Ordinance").

8. In her complaint, the complainant complained that the photograph had been published in the magazine without her consent. She referred to the unflattering criticism of her dress sense which the article contained. I note that she also complained that the photograph had been taken without her knowledge or consent, but it may be that she would not have minded about that, or even about the publication of the photograph, if the article which accompanied it had not been so unflattering. The irony is that although it may have been the unflattering comments about her which prompted her to complain in the first place, the language and structure of the Ordinance made it necessary for her complaint to be targeted at the circumstances in which the photograph was taken.

The Commissioner's decision

9. A series of data protection principles ("the DPPs") lie at the core of the Ordinance. Section 4 of the Ordinance prohibits their contravention. DPP 1 identifies, amongst other things, the manner in which personal data may be collected. Thus, DPP 1(2) provides as follows:

"Personal data shall be collected by means which are -

(a) lawful; and

(b) fair in the circumstances of the case."

The investigation which the Commissioner conducted focused on that principle. It was not suggested that the taking of the photograph of the complainant had been unlawful. The issue was whether the means by which the photograph had been taken were fair in the circumstances of the case. The Commissioner decided that the means by which the photograph had been taken had been unfair. He notified the publisher's solicitors of that by a letter dated 19th May 1998.

10. However, they complained that the Commissioner should have convened a hearing before adjudicating on the complainant's complaint. Without accepting the correctness of that assertion, the Commissioner decided to convene such a hearing. That hearing was attended by counsel for the publisher, and the photographer gave evidence. In due course, the Commissioner confirmed his view that the means by which the photograph had been taken had been unfair. That is the decision challenged in this case. It was notified to the magazine's solicitors by a letter dated 5th October 1998 ("the decision letter"). The decision letter concluded:

".... I take the view that the means by which the personal data of the complainant were collected by your client through the photographer acting as its agent was not fair in the circumstances, in that the photograph of the complainant was taken with neither her consent nor knowledge and:

1. the photographer did not have at the relevant time any reasonable ground to believe that he would succeed in reaching the complainant afterwards or to assume that the complainant would not object to the taking of her photograph; and

2. your client did not have an appropriate policy on the taking of adequate measures to ensure the protection of the privacy rights of individuals photographed without their knowledge whose position on the matter cannot be ascertained, such as a policy of either not publishing those photographs or only publishing them in a way that [the] subject is not identifiable."

The appropriate applicant

11. Throughout his investigation, the Commissioner believed that Eastweek Ltd. ("Eastweek") was the publisher of the magazine. He can be forgiven for thinking that. When he notified the magazine of the complainant's complaint, the response came from solicitors who said that they were acting for Eastweek. At no time did they, or the solicitors who succeeded them, suggest that Eastweek was not the publisher of the magazine. Indeed, when a query arose as to the relationship between Eastweek and the company which employed the photographer and the reporter, Eastweek's solicitors confirmed that the photographer had been acting as Eastweek's agent.

12. In fact, it is now accepted by everyone that the publisher of the magazine was Eastweek Publisher Ltd. ("Eastweek Publisher"). Accordingly, if a finding that there had been a contravention of any of the DPPs was appropriate, that finding should have been made against Eastweek Publisher. In those circumstances, the Commissioner originally contended that this application for judicial review (in which Eastweek Publisher was originally the only applicant) had to be dismissed without a consideration of the merits. That was because his decision was directed (albeit erroneously) against Eastweek, and Eastweek Publisher had no standing to challenge that decision.

13. The magazine sought to overcome that problem (which had been created by its own failure to correct the mistakes made by its solicitors) by applying for Eastweek to be joined as an additional applicant in these proceedings, and for consequential amendments to be made to the Notice of Application for leave to apply for judicial review and to the Notice of Motion. The Commissioner consented to that application. However, in my view, such an application was unnecessary. On its true analysis, the Commissioner's decision was that the publisher of the magazine had contravened DPP 1(2). That is not affected by the fact that the Commissioner had been misled into thinking that Eastweek, rather than Eastweek Publisher, was the publisher of the magazine. It follows that (a) since his decision was directed to the publisher of the magazine, and (b) since Eastweek Publisher was the publisher of the magazine, Eastweek Publisher has the standing to challenge the decision. It also follows that there was no need for Eastweek to be joined as an additional applicant, since the application for it to be joined was made in case the court found that Eastweek Publisher did not have the standing to challenge the decision. In fact, it is Eastweek which does not have the standing to challenge the decision, and its application for judicial review must be dismissed.

An alternative remedy

14. When the Commissioner notified the magazine's solicitors of his decision, he referred to his power under section 50(1) of the Ordinance to serve an enforcement notice on the publisher. He requested the publisher to provide him with an acceptable undertaking about its future conduct, and deferred his decision on whether to serve an enforcement notice for the time being. By the time the application for leave to apply for judicial review had been filed, the Commissioner had not been provided with an acceptable undertaking, nor had the Commissioner decided whether to serve an enforcement notice.

15. An appeal against an enforcement notice lies to the Administrative Appeals Board ("the Board"): see section 50(7) of the Ordinance. In these circumstances, Mr. John Scott S.C. for the Commissioner contended that this application for judicial review was premature. The publisher should have waited until an enforcement notice had been served, and then appealed against it to the Board. Since there would have been this alternative route by which the Commissioner's decision could have been challenged, an application for judicial review is not appropriate.

16. I reject this argument for two reasons. First, it presupposes that the Commissioner would have served an enforcement notice if an acceptable undertaking was not forthcoming from the magazine. In his affidavit, he has not said that he would have done that. I am not prepared to assume that he would have done that. It may be that he would have thought that a finding that the publisher of the magazine had contravened DPP 1(2) would have been sufficient. Secondly, an examination of section 50 of the Ordinance shows that whether an enforcement notice should be issued depends on much more than whether on one particular occasion a requirement of the Ordinance had been contravened. Accordingly, it does not follow that, on an appeal against any enforcement notice, the question of whether the taking of the complainant's photograph was fair in all the circumstances of the case would necessarily have been decided.

The criticisms of the Commissioner's decision

17. The Commissioner's decision that the taking of the photograph was unfair in all the circumstances of the case is attacked on seven grounds. It is necessary for me to deal with each of them, though it is important to remember that the Commissioner's focus was on the taking of the photograph, and not its subsequent publication in the magazine. That is because DPP 1(2), which the publisher was found to have contravened, relates, as I have said, to the means by which the data was collected. Its use is governed by DPP 3.

(i) News gathering. The Commissioner accepted that, generally speaking, the fact that data is collected in the course of news gathering is relevant to the fairness of the collection. He concluded, however, that the taking of the complainant's photograph could not be regarded as an example of news gathering, even if the phrase "news gathering" could be equated (as the publisher contended) with the definition of "news activity" in section 61(3) of the Ordinance, which defines "news activity" as meaning "any journalistic activity" and as including, amongst other things, "observations on .... current affairs". The taking of the complainant's photograph for the purpose of illustrating an article about current fashion trends in Hong Kong is said to amount to the collection of data in the course of a journalistic assignment relating to current affairs. It is therefore said to amount to the collection of data in the course of news gathering.

18. In my view, the Commissioner's rejection of that argument cannot be characterised as irrational. I am prepared to assume in the publisher's flavour, but without deciding, that the gathering of material for responsible "lifestyle" articles featuring aspects of modern living can constitute "news gathering" just as much as gathering "hard" news in the context of reporting the news. I am also prepared to assume in the publisher's favour, but again without deciding, that taking a photograph of a person - even someone who has no public profile, and who is going about her ordinary daily business - for the purpose of illustrating a responsible article about women's fashion is capable of constituting news gathering. However, the reason why the Commissioner did not regard the taking of the complainant's photograph as news gathering related to the particular article which the photograph was to illustrate. He made it clear in the decision letter that it was "the contents of the Article" which made him conclude that the taking of the photograph did not amount news gathering. He explained what he meant by that in his affidavit when he said:

".... the article was only a commentary on dress sense and criticism of individual taste of a few individuals based on the random thoughts of the reporter, rather than a report on fashion trends or street fashion."

Having read a translation of the article, I have concluded that it was open to the Commissioner to regard the article in that way. He was entitled to conclude that it was no more than an article illustrating and commenting on the ability of the various women who were photographed to choose clothes and accessories which co-ordinated with each other. It was therefore open to him to conclude that the taking of the complainant's photograph to illustrate such an article did not amount news gathering, even on an expanded definition of the phrase by reference to section 61(3) of the Ordinance.

(ii) The complainant's lack of knowledge. In the decision letter, the Commissioner wrote:

"I accept the argument raised by Counsel that in order to capture a person's natural expression in a photograph, the seeking of his or her prior consent would be impracticable and therefore should not be considered as an absolute requirement. However, in the present case the photograph was taken not only without the consent, but also without the knowledge of the complainant with a long-range lens. I consider that the taking of an individual's photograph in such a way is unfair unless there are other justifying circumstances, e.g. the existence of a policy on the taking of adequate measures to ensure that the privacy rights of the individual are subsequently protected."

Mr. Jason Pow for the Applicants argued that this reasoning is flawed. The long-range lens enabled the photograph to be taken of the complainant without her knowledge. If the need to capture the complainant's natural pose justified taking a photograph of her without her consent, it should also have justified taking a photograph of her with a long-range lens which enabled it to be taken of her without her knowledge.

19. At first blush, there is something in this argument. Given that the Commissioner thought that taking the photograph without the complainant's consent could be justified, it would not have been right for the Commissioner to find that the taking of the photograph was unfair merely because it was taken without her knowledge. But when one looks at the decision letter as a whole, it is plain that the Commissioner did not find the taking of the photograph to have been unfair on that ground only. What rendered the taking of the photograph unfair was the fact that it was taken without the complainant's knowledge or consent at a time when (a) the photographer did not have reasonable grounds for thinking that he would be able to obtain her consent to its publication, and (b) the magazine did not have a policy of publishing someone's photograph (obtained without the person's knowledge or consent) in such a way that the person cannot be identified. As we shall see, it was open to the Commissioner to uphold the complaint on those grounds.

(iii) Attempts to obtain consent. DPP 1(3) requires the data user to take all practicable steps to give certain specified information to the data subject when data is collected from the data subject. On 15th November 1997, the Commissioner informed the publisher's solicitors that compliance with the requirements of the Ordinance included taking all practicable steps to ensure that the complainant had been informed of the matters set out in DPP 1(3). However, it is plain from the letter which he sent to the publisher's solicitors on 19th May 1998 that by then he had decided to treat the complainant's complaint as simply a complaint that the publisher had contravened DPP 1(2). Why did he decide not to treat it as a complaint that the publisher had contravened DPP 1(3) as well? Mr. Pow contended that it was because he had decided to accept that all practicable steps had been taken to obtain the complainant's consent to the publication of the photograph.

20. I cannot go along with this argument. By 19th May 1998, the only information which the publisher had given the Commissioner was that the complainant's consent could not be obtained before the photograph had been taken. Even that was not true: it was subsequently accepted that no steps had been taken to obtain her consent to the photograph being taken. But what is important for present purposes is that the publisher had not informed the Commissioner what steps, if any, had been taken after the photograph had been taken to obtain the complainant's consent to the publication of the photograph. There was therefore no material on which the Commissioner could have made the finding of fact which Mr. Pow contended he must have made.

21. So why did the Commissioner decide not to investigate a possible contravention of DPP 1(3)? It is unnecessary for me to decide that question, but it may be that the Commissioner thought that DPP 1(3) did not cover this particular case. DPP 1(3) provides, so far as is material:

"Where the person from whom personal data are or are to be collected is the data subject, all practicable steps shall be taken to ensure that -

(a) he is explicitly or implicitly informed, on or before collecting the data, of -

(i) whether it is obligatory or voluntary for him to supply the data; and

(ii) where it is obligatory for him to supply the data, the consequences for him if he fails to supply the data; ...

unless to comply with the provisions of this subsection would be likely to prejudice the purpose for which the data were collected ..."

Thus, DPP 1(3) only applies where "the person from whom personal data are or are to be collected is the data subject". It may be that the Commissioner thought that the taking of someone's photograph without that person's knowledge could not amount to the "collection" of data "from" that person. The reference in (a)(i) to the "supply" of data by that person could be said to support that view. The Commissioner may have thought that the taking of someone's photograph without that person's consent could not amount to the "supply" of data by that person.

(iv) Reasonable grounds. I have referred to the Commissioner's finding that the photographer did not have reasonable grounds for thinking that he would be able to obtain the complainant's consent to the publication of the photograph. Mr. Pow argued that that was an irrelevant consideration. Provided that the photographer honestly believed that he would be able to obtain the complainant's consent to the publication of the photograph, the fact that that belief was not based on reasonable grounds was immaterial. It was the subjective state of mind of the photographer which was all important. I reject that argument. There is no warrant for reading DPP 1(2) in so restricted a manner. The fairness of the means by which personal data is to be collected has to be judged by reference to the circumstances of the case. The circumstances of the case must be regarded as including the reasonableness of the data user's belief that the means employed by him to collect the data are fair. It would be absurd if a wholly unreasonable belief that such means are fair could render fair means which would otherwise be regarded as unfair.

22. I should add that Mr. Pow also challenged the Commissioner's finding of fact that the photographer did not have reasonable grounds for thinking that he would be able to obtain the complainant's consent to the publication of the photograph. To the extent that the argument is that it was not reasonably open to the Commissioner to reach that conclusion, I reject it. After all, I have already referred to (a) the distance between the photographer and the complainant when the photograph was taken, and (b) the fact that the street was crowded at the time. But what is also said is that the Commissioner failed to take into account a relevant fact, namely that the complainant was stationary at the time and apparently waiting to cross the road. I reject that argument as well. I acknowledge that that was not specifically mentioned in the decision letter, but the Commissioner did not have to spell that out because it was apparent from the photograph. The suggestion that he did not take that into account simply because he did not refer to it in the decision letter is fanciful.

(v) The subsequent use of the photograph. The decision letter made it clear that in considering whether the photograph was fairly taken, the Commissioner regarded as relevant the question whether the magazine maintained a policy of ensuring that a photograph taken without the subject's knowledge or consent, and without the subject's subsequent consent to its publication, would either not be used at all or would only be used in such a way that the identity of the subject would not be revealed. It was contended on behalf of the magazine that this was an irrelevant consideration. It related not to the fairness of the means by which the photograph was taken (which is what DPP 1(2) focuses on) but to the fairness of the use of the photograph later (which is what DPP 3 focuses on, the contravention of which the publisher was not charged with). The factors which were relevant to an alleged contravention of DPP 1(2) related to the equipment which was used and the circumstances in which the photograph was taken, i.e. on a genuine journalistic assignment in a public place with standard (albeit long-range) equipment involving neither trickery nor deception nor intrusive or covert operations.

23. The latter factors are all, of course, relevant factors, but I cannot go along with the argument that the consideration which the Commissioner took into account was an irrelevant one. If the persons responsible for the taking of the photograph (the photographer himself and the reporter who commissioned it) knew that there was no policy in existence prohibiting its use without consent, that is relevant to whether the fact that it was taken without the complainant's knowledge or consent rendered the taking of the photograph unfair. As Mr. Scott succinctly put it in his skeleton argument:

"As one measure (amongst others) of the fairness of collection of the data, it was appropriate for the Commissioner to have regard to whether the data would be used fairly thereafter."

That is especially so when the DPP relating to the use of data (DPP 3) focuses not on the fairness of the use but on its purpose. The absence of any express prohibition on the unfair use of data strongly suggests that an intention to use it in an unfair manner is a matter which can be taken into account in determining whether its original collection was by unfair means.

(vi) The photographer's assumption. In the decision letter, the Commissioner said that:

"... the photographer was not entitled simply to assume that the complainant would not object to the taking of the photograph."

Indeed, in explaining why he concluded that the taking of the photograph was unfair, he added that:

".... the photographer did not have at the relevant time any reasonable ground .... to assume that the complainant would not object to the taking of her photograph ...."

It is said that the photographer had never said that he had made such an assumption.

24. It is not easy to tell from the transcript of the hearing whether the photographer had said that he had made such an assumption. But even if he had not, I do not think that the Commissioner's misunderstanding of what the photographer had been saying undermines his conclusion. Whether or not the photographer assumed that the complainant would not object is beside the point. The important point - and I have no doubt that this was what the Commissioner had in mind - was that the complainant's consent to the taking of the photograph or to its subsequent publication was not something which could be taken for granted.

(vii) Procedural unfairness. It is said that it was unfair for the Commissioner to take into account the absence of any policy as to the publication of photographs taken without the subject's knowledge or consent without notifying the publisher of the relevance of that factor - especially as this factor had not been mentioned in his letter of 19th May 1998. Had he done so, the publisher would have taken the opportunity to place evidence of such a policy before him.

25. There are three answers to this argument. First, when the Commissioner first notified the publisher of the complaint, the publisher was requested to provide the Commissioner with information on a number of topics. One of those topics was:

".... your company's policy and procedures of photo-taking with respect to protection of the privacy of individuals in relation to personal data ..."

Accordingly, the publisher must or should have appreciated that the existence or otherwise of such a policy was regarded as a relevant factor by the Commissioner. The publisher did not therefore need to be expressly notified of the relevance of this consideration, and it should not have been lulled into a belief that its policy was irrelevant by virtue of the absence of a reference to it in the letter of 19th May.

26. Secondly, the Commissioner had in fact been informed of such policy as the publisher had. In answer to the request for information about its policy, the publisher's solicitors had informed the Commissioner that such policy as it had consisted of "an understanding amongst the photographers, reporters and editors that consent should be obtained as far as possible in the circumstances". The Commissioner was entitled to assume that the publisher had nothing more to say on the topic.

27. Thirdly, the publisher has in fact had nothing further to say on the topic. It could have chosen to file evidence in these proceedings of what else it would have chosen to tell the Commissioner on the topic had it appreciated that the Commissioner regarded the matter as relevant. It did not do so. Mr. Pow told me from the Bar Table that the reason why it does not have a policy about what is to be done if consent is not obtained was to enable the magazine to approach each occasion when the issue arose with a degree of flexibility. Had the Commissioner been told that, I expect that he would have regarded that as no justification for not having a policy on the topic.

The meaning of "data"

28. For these reasons, I reject the seven grounds on which the Commissioner's decision is attacked. However, that is not necessarily the end of the matter. When this application was first listed for hearing on 15th March, I raised with counsel a question which had been concerning me. That was whether the photograph which had been taken of the complainant could be regarded as "data". I had no difficulty in concluding that if it was data, it amounted to "personal data". My concern was whether it was data, having regard to the definition of "data" in section 2(1) of the Ordinance. That provides that

"... unless the context otherwise requires ... 'data' means any representation of information (including an expression of opinion) in any document, and includes a personal identifier ...."

It struck me as straining the language of the Ordinance to describe a photograph of someone as a "representation of information". My provisional view was that "data" related to information about someone, e.g. the balance of someone's bank account, and the representation of that information related to, for example, a printout on which that information is contained. Leaving aside the unfavourable comments about her dress sense, the complainant's real complaint, therefore, related to the invasion of her privacy which the publication of her photograph in the newspaper represented, rather than the unfair collection of "data" about her.

29. This issue raised important questions as to the scope of the Ordinance and the Commissioner's powers, and where the line between the protection of personal data and the protection of privacy is to be drawn. The publisher had not intended to argue that the photograph did not amount to "data", and Mr. Pow was not in a position to address me on the topic. The same applied to Mr. Scott. It was to enable them to prepare submissions on the topic that the hearing of the application was adjourned.

30. At the subsequent hearing, I was provided with helpful written submissions on the topic. In a nutshell, the Commissioner argued that the photograph amounted to data, the information which the photograph contained being the physical features of the complainant. For his part, Mr. Pow adopted a neutral stance on the issue. He drew my attention to a number of materials, but he did not go so far as to contend that the photograph did not amount to data. I confess that I remain extremely sceptical about the correctness of the Commissioner's view, but since neither party wished to argue that the photograph did not amount to data, and because I have not had the benefit of any argument in support of my provisional view, I do not think that I should consider the matter further. The consequence is that, although I have real doubts as to whether the photograph of the complainant amounts to data about her, and although I therefore have real doubts as to whether the DPPs were even engaged, I have concluded that I should not give effect to these doubts.

Conclusion

31. It follows that, for the reasons I have given, Eastweek Publisher's application for judicial review must be dismissed. Save for one matter, I do not at present see any reason why costs should not follow the event, and the order nisi which I make as to costs is that the Applicants must pay to the Commissioner his costs of this application, to be taxed if not agreed. However, since a second day's hearing was only required because I wanted to hear representations on whether the photograph amounted to "data", the order nisi must include an order that there be no order as to the costs of the hearing on 17th September.