WONG WING YUE ROSALINE v. NEXT MEDIA INTERACTIVE LTD AND OTHERS

HCA 2701/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2701 OF 2016

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DECISION

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Introduction

1.  The plaintiff seeks interlocutory relief at the early stage of the present action. It is necessary to give a brief introduction of this action for the understanding of this decision.

2.  This action concerns two photographs published by the 1^st defendant (“the Infringing Photos”) in a video together with an article (“the Infringing Article”) on its website (nextplus.nextmedia.com) (“the Website”) depicting the plaintiff and two other persons. The Website is an instant news site which is used by both the 1^st and 2^nd defendants to upload materials as the electronic version of Next Magazine to internet users. Not all such materials would be published in the paper versions of Next Magazine.

3.  The plaintiff recognizes that the Infirnging Photos were the edited copy of the two photographs (“the Original Photos”) taken by her domestic helper with a mobile phone provided to her for her use in the course of her employment. In the Infringing Photos, the faces of the two other persons have been blurred.

4.  The plaintiff claims that she has only sent the Original Photos to a handful close friends through either WhatsApp or Wechat. She claims copyright in them and that they are private and confidential in nature. The plaintiff avers that she has a reasonable expectation of privacy in respect of the Original Photos.

5.  The plaintiff says that the creation and the subsequent publication of the Infringing Photos by the 1^st and 2^nd defendants without her authorization and consent infringe her copyright in the Original Photos.

6.  On the other hand, the plaintiff claims that the publication of the Infringing Photos and the Infringing Article constitute a breach of confidence in that the confidential information contained in the Original Photos particularly its description of the appearance of the two other persons is disclosed to the public.

7.  Thus, the claim of the plaintiff is premised on copyright infringement and breach of confidence.

8.  On the very day that the writ herein was issued, i.e. 17 October 2016, the plaintiff obtained an ex parte order from Au Yeung J (“the Ex Parte Order”). The Ex Parte Order contained some interlocutory injunctions in respect of the Infringing Photos and the Infringing Articles. On the following day, the plaintiff took out a summons (“the Summons”) for the continuation of the interlocutory injunctions and her application for further certain delivery and disclosure orders against the defendants.

9.  On the return day of the Summons, i.e. 22 October 2016 this court continued the Ex Parte Order pending the resolution of the Summons.

10.  As indicated by the Affirmation of Wong Lai Sheung Louise filed on behalf of the 1^st and 2^nd defendants, the 1^st and 2^nd defendants do not oppose the continuation of the interlocutory injunctions save the one which concerns publication of information relating to or in respect of the Original Photos, i.e. paragraph 1(a)(e) of the Ex Parte Order. They also agree to abide by the delivery order in the Summons with qualifications explained below.

11.  The present debate is therefore confined to the continuation of paragraph 1(a)(e) of the Ex Parte Order and paragraph 3 of the Summons. For the former, the plaintiff applied to have the application be heard in camera due to the likely intrusion into the plaintiff’s privacy. The 1^st and 2^nd defendants adopt a neutral position in regard to this application. After hearing both Mr Lin, for the plaintiff, and Ms Lau, for the 1^st and 2^nd defendants, I agree to deal with the application to continue paragraph 1(a)(e) of the Ex Parte Order in camera and a separate written decision will be handed down to the parties in confidence.

The application for disclosures

12.  In this Decision, I deal with paragraph 3 of the Summons only, which is in the following terms:

“There be an order that

(a) the 1^st and 2^nd defendants must inform the plaintiff in writing:

(i) the name(s) and address(es) of the person or persons who supplied or provided the Infringing Photos to them; and

(ii) the date(s) when and the manner and circumstances in which the Infringing Photos were so supplied or provided to them;

(b) the information must be confirmed in an affidavit which must be served on the plaintiff’s solicitors within 7 days from the date of the making of this order.”   

13.  It is common ground that the 1^st and 2^nd defendants received a copy of the Original Photos/Infringing Photos from a third party. It is not adequately explained in their affirmation whether they actually received a copy of the Original Photos and they did the editing to blur the faces of the two other persons to produce the Infringing Photos themselves or they simply received the edited version, i.e. the Infringing Photos from the third party.

14.  Mr Lin explains that the plaintiff seeks to invoke the court’s Norwich Pharmacal jurisdiction to order disclosures. He refers this court to the following paragraphs in the judgment of DHCJ To (as he then was) in AXA China Region Insurance Co Ltd v Pacific Century Insurance Co Ltd [2003] 3 HKC 1:

“243. In granting the interlocutory injunction against the defendants, I am satisfied that AXA have shown that there is a serious issue to be tried as to whether the defendants were in breach of their duty of fidelity or of confidence to AXA and that an award of damages is inadequate. The evidence shows that large volumes of Client Data had been printed out by the Individual Defendants, but only a small amount has been delivered up or accounted for. It is likely that the defendants have used or will use the Client Data to AXA’s detriment. Not only that should be stopped, but those who have been parties or who would be likely parties to the wrongful act must be identified so that AXA could bring them to justice and have their loss compensated for. Under the principle in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, the defendants, being prima facie wrongdoers themselves, must assist AXA by disclosing the identity of other wrongdoers or potential wrongdoers as well as full information to AXA. Each such person who supplied such documents to any of the defendants would potentially be a wrongdoer because of the unauthorised disclosure of the confidential information. The same applies to recipients of the confidential information who, by reason of the nature of the data, must have known that the information is confidential and supplied in circumstances involving breach of the duty of fidelity or duty of confidence.

244. At this stage, there is no need for AXA to establish that these other persons had definitely committed wrongful acts against them: P v T Ltd [1997] 1 WLR 1309, nor do they need to make out a strong case: Wellcome Foundation Ltd v Attorney General [1992] 1 HKC 171 at 188. Only the defendants are in the best position to supply the information and the plaintiff should not be put to further expenses in identifying those other wrongdoers.” (emphasis supplied by the plaintiff)

15.  Indeed in copyright infringement actions, it is commonplace for the plaintiffs to apply for such disclosure orders as an interlocutory relief. The following passage in Copinger and Stone James on Copyright Vol.1 17^th Ed. At §21-212, explains clearly the nature of such applications:

“... in an action for infringement of copyright or related rights, the court now frequently exercises its jurisdiction, on an interim application, to make an order requiring a defendant to make an affidavit setting out the names and addresses of the supplies and purchasers of infringing material and articles known to him. He is also required to state in the affidavit the dates and quantities supplied, and to exhibit documents relating to supplies and purchases. This is valuable form of order because it enables the claimant in a copyright action, for example, to obtain from retailers of infringing goods details as to the wholesale or manufacturing sources of supply. The basis of the jurisdiction is that a person, whether he is himself an infringer, or has become innocently involved without personal liability in the wrongdoing of others, is under a duty to assist those injured by those acts to give full information by way of disclosure of documents and of the identity of the wrongdoers. It matters not if they are out of the jurisdiction. The application should be made promptly.”

16.  I pause to note that the disclosures sought by the plaintiff exceed the usual ambit of a Norwich Pharmacal order. Paragraph 3(a)(ii) of the Summons is akin to interrogatories.

17.  Mr Lin further explains that the disclosure of the identity of the supplier(s) of the Original Photos/Infringing Photos is necessary so that these potential wrongdoers can be brought to justice.

18.  On the evidence, the 1^st and 2^nd defendants oppose disclosure of the source of the Original Photos/Infringing Photos on the basis that the source is insistent on its confidentiality. Ms Wong avers that the smooth operation of a free press is wholly dependent on the disclosure of information matched by an express or implied undertaking to keep the source confidential.

19.  Ms Lau with references to some authorities provides the legal basis for this opposition. She highlights the importance of protection of journalistic sources so as to protect freedom of speech and press freedom. This concern was not present in the AXA case relied on by Mr Lin.

20.  She first refers this court to the decision of the European Court of Human Rights in Goodwin v UK (1996) 22 EHRR 123. There, a journalist in the United Kingdom refused to disclose the identity of his informant who wished to remain anonymous despite a disclosure order made against him under section 10 of the Contempt of Court Act 1981 (“the Act”). The informant disclosed to the journalist sensitive information regarding the financial status of a company, which apparently had come from a confidential document of the company. The confidential document was found missing from the company.  

21.  Section 10 of the Act under the heading “Sources of Information” provides that no court may require a person to disclose the source of information contained in a publication for which he is responsible, unless it be established to the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

22.  The journalist challenged the validity of the disclosure order first in the Court of Appeal and then in the House of Lords. He failed on both occasions and he was ultimately fined for contempt of court in his refusal to comply with the disclosure order. He therefore filed a complaint to the Commission that his rights to freedom of expression under Article 10 of the European Convention on Human Rights (“the Convention”) had been violated.

23.  In gist, Article 10 of the Convention relates to freedom of expression and to receive and impart information and ideas without interference by public authority. In the end, the journalist’s complaint was upheld and the European Court found that his freedom of expression under Article 10 was violated by the disclosure order.

24.  The material part of the judgment (§§38 and 39) is as follows:

“38. The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.

Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.

These considerations are to be taken into account in applying to the facts of the present case the test of necessity in a democratic society under Article 10(2) .

40. As a matter of general principle, the “necessity” for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest willweigh heavily in the balance in determining, as must be done under Article 10(2), whether the restriction was proportionate to the legitimate aim pursued. In sum, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court.

The Court's task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.

25.  Ms Lau underscores to this court that the European Court (at §45) expressly refused to find that interests of the company in eliminating, by proceedings against the source, the residual threat of damage through dissemination of the confidential information otherwise than by the press sufficient to outweigh the vital public interest in the protection of the applicant journalist’s source. The European Court concluded that the further purposes served by the disclosure order, when measured against the standards imposed by the Convention, amount to an overriding requirement in the public interest.

26.  The Goodwin case was considered by the House of Lords in Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033. There, the computer database of the hospital where a convicted murderer on hunger strike was hospitalized was disclosed to the defendant’s newspaper. The database comprised the medical information of all other patients. I need only cite the following part of the holding for present purposes:

“... that disclosure of a journalist’s source of information would not be ordered “in the interests of justice” within section 10 of the Contempt of Court Act 1981 unless that was necessary and proportionate response in the circumstances of the case; but that, in view of the need for the integrity of the authority’s records to be protected and the authority’s need to identify and punish the informant, the disclosure ordered by the judge had been justified.”

27.  In a nutshell, the House of Lords (at §66) agreed that there were exceptional circumstances to justify disclosure of sources. Security of patients’ record essential to the care of the patients and the need to deter the same or similar wrongdoing in the future rendered disclosure necessary and proportionate and justified.

28.  It is noteworthy that Laws LJ in the Court of Appeal in the Ashworth Hospital Authority case[1] at §101 had this to say about the public interest in the non-disclosure of press sources,

“It is in my judgment of the first importance to recognise that the potential vice—the “chilling effect”—of court orders requiring the disclosure of press sources is in no way lessened, and certainly not abrogated, simply because the case is one in which the information actually published is of no legitimate, objective public interest. Nor is it to the least degree lessened or abrogated by the fact (where it is so) that the source is a disloyal and greedy individual, prepared for money to betray his employer’s confidences. The public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication, and the particular source. The suggestion (which at one stage was canvassed in the course of argument) that it may be no bad thing to impose a “chilling effect” in some circumstances is in my view a misreading of the principles which are engaged in cases of this kind. In my judgment, the true position is that it is always prima facie (I can do no better than the Latin) contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way.”

29.  Mr Lin submits that the authorities relied upon by Ms Lau were decided on the basis of section 10 of the Act and Article 10 of the Convention and neither of them has a local statutory equivalents in Hong Kong. He reminds this court that there should not be unlawful incorporation of provisions of foreign conventions or legislations into Hong Kong domestic legislation: Ga v Director of Immigration [2014] 3 HKC 11 (CFA).

30.   That said, Mr Lin accepts that freedom of expression, freedom of the press and freedom of publication are enshrined in Article 27 of the Basic Law. He nevertheless argues that such rights are enjoyed by Hong Kong residents only but not by local corporations, let alone a foreign corporation such as the 1^st defendant. He further highlights that the plaintiff too enjoys protection of her right of private ownership of property including the intellectual property right in the Original Photos under Article 6 of the Basic Law.

Analysis

31.   With or without the relevant provisions of the Act and the Convention, public policy is always a prime consideration in the grant of a Norwich Pharmacal order: Norwich Pharmacal Co. and Ors.v Customs & Excise Commissioners [1974] AC 133 per Lord Reed at p.175D.

32.   Hong Kong residents’ rights under Article 27 of the Basic Law are guaranteed and cannot be easily taken away just because the newspaper is not published by a natural person or a local incorporation. It is illogical to say that such freedoms are only confined to such newspapers published by natural persons who are Hong Kong residents. It plainly cannot be the true and meaningful construction of Article 27.

33.   Though the authorities cited by Ms Lau can have no strict application to the present case, I accept that in exercising my discretion to grant or refuse to grant disclosure orders at this interlocutory stage, I have to undertake a balancing exercise, weighing the individual rights on the one hand against the public interests on the other. Moreover, judges should be vigilant to protect the freedom of the press, which is the bulwark of a democratic society. I agree that protection of press sources is of paramount importance to the freedom of the press, which can only be removed in view of cogent reasons.

34.   However, neither individual rights nor freedom of the press are absolute. When they represent conflicting interests in a particular case, the court has to strike a balance carefully.

35.   I must say that the arguments are finely balanced in this case. I take in account that given that there is no valid challenge to the copyright claim in the Original Photos, whoever produced another copy of such Photos, be it electronic or paper, to the 1^st and 2^nd defendants are likely to be primary copyright infringers. The plaintiff also has an arguable case of breach of confidence in that she has a reasonable expectation of privacy in respect of the Original Photos, which were not taken in an entirely public setting or at least no members of the public was expected to be able to take such photos without the permission of the plaintiff. I understand that the confidentiality of the Original Photos arises very much from the particular circumstances of the plaintiff. I can appreciate her expectation of privacy of them though she sent copies of the same to her friends without any express warning against their disclosure.

36.   I can accept that the plaintiff should have a legitimate right to bring such infringer(s) to justice and to avoid further unauthorized publication of the Original Photos and production of their infringing copies, thereby curbing further copyright infringement and breach of confidence.

37.   On the other hand, I cannot accept the submission of Mr Lin that there is no issue of public interest here in that the 1^st and 2^nd defendants had no public interest to take care of in their publication of the Infringing Photos and they only had commercial interest in mind. Though I am inclined to agree that the publication of the Infringing Photos per se served little public interest, it is the public interest in the non-disclosure of press sources that this court has to protect.  As forcefully pointed out by Laws LJ in the Ashworth Hospital Authority case, such public interest is constant whatever the merits of the particular publication.

38.   Returning to the particular facts of the present case, on her own evidence, after the publication of the Infringing Photos, the plaintiff has already obtained the reassurance from the handful close friends of hers who received the copies of the Original Photos from her that they have never supplied any of the Original Photos to others and they will never do so without her consent. The plaintiff does not disbelieve any one of them seemingly.

39.   Up till now, there is no evidence of any imminent or likely further copyright infringement and breach of confidence. Nor is there any evidence that due to the infringing acts of the 1^st and 2^nd defendants under complaint, the plaintiff has suffered any substantial financial loss.

40.   Looking at the matter in the round, weighing her private rights against the need to protect press sources, I conclude that I should refuse to exercise my discretion to order such disclosures.

Conclusion and Order

41.   For the reasons given above, I refuse to make the disclosure order under paragraph 3 of the Summons. I agree with Mr Lau that given this conclusion the delivery order to be made under paragraph 2 of the Summons in the absence of objection should be confined to delivery up of such materials in redacted forms so as to exclude any information leading to the identification of the supplier(s) of the Original/Infringing Photos.

42.   I shall make an order in terms of paragraph 1 save that paragraph 1(a)(e) of the Ex Parte Order should be excluded from continuation pending my determination on this particular provision in another decision. I also allow paragraph 2 as qualified in the preceding paragraph hereof.

43.   I make a costs order nisi that costs be in the cause.   

44.   Lastly, I thank Mr Lin and Ms Lau for their helpful submissions.