A Lawyer’s Duty of Technological Competence

“Last night the internet stopped working so I spent a few hours with my family… They seem like good people”

- Jokes about the Internet

Since the advent of the internet, humanity has been spending more and more hours online. What was supposed to be a tool to make our lives easier has also, as a result of law enforcement and Courts not having caught up with technology, become a place of nightmare with cyber bullying being a constant.

The dangers posed by the internet has been exemplified in recent times by a phenomenon called doxxing (a form of cyber stalking), where perpetrators collate information about a victim and dump them in public with the malintent to elicit critical comments from bystanders. Victims are often times left traumatized, terrorized, and it sometimes can even be fatal.

History of Doxxing

Doxxing is by no means a new phenomenon in Chinese history. Even before the advent of the internet, early historic example includes King Zhou of Shang (商紂王) in his search for Daji (妲己).

In the above example, King Zhou was the instigators where he incited the entire population of his country’s officials to data search the fine maiden (e.g. Daji) he has become infatuated when he passed by her during a visit to the country side.

Translating it to modern day Hong Kong, often times we see men taking photos of attractive girls and asking the population of the internet to identify such girls (where many of their information ends up being displayed publicly quite quickly).

The parties to doxxing and the current situation

To recognize what doxing is, it is important to also know who the parties to a doxing campaign are, and they can be identified as follows:

  • Perpetrators: individuals who research, collect and dump data of a victim on the internet
  • Victims: data owners that is the target of a doxxing operation
  • Bystanders: those who sees dumped data and comment on it – causing distress to a victim
  • Instigators: those who provokes the doxing to start; and
  • Upstanders: those who will come out to defend a victim.

Due to the lack of understanding of social media, law enforcements don’t know how to investigate the crime.

Our Courts have similarly been ill-equipped with no clear guidance on how to address such acts. For example, victims of dumped data (e.g. illicit videos being uploaded) do not have clear legal recourse to pull uploaded videos as issue of copyright (e.g. whether a domain owns it or the data owner owns it) might arise (and litigation in Hong Kong takes a long time to be resolved).

Ultimately, the fact that such issues may require adjudication (resulting in even more people watching such content – e.g. investigators, parties’ lawyers, etc.) ironically means that victims who wishes certain private information to remain private must first go through the phase of exposing such private information to strangers before a decision on its content can be made.

It is also noteworthy that the vast majority of the victims of doxing are underaged children who may not know how to deal with such online harassments. The situation is therefore far from ideal.

Potential Legal Liabilities

That being said, there are traditional legal routes which may still be used to impose liabilities on the perpetrators of such heinous actions. These includes:

  1. Breach of DPP1 & 3 pursuant to the Personal Data (Privacy) Ordinance, Cap 486 – where offences can be prosecuted pursuant to s.64 of the ordinance;
  2. Harassment and Defamation suits – which can result in the imposition of awards for damages, cease & desist orders;
  3. Copyright Infringement Liabilities under s.23, 24 and 26 of the Copyrights Ordinance, Cap 528 (though this route is far from ideal – one must prove copyright of the data owner first);
  4. Control of Obscene and Indecent Articles Ordinance, Cap 390 which provides that it is an offence to publish / display of indecent articles;
  5. Injunction – recently an injunction was granted in HCA 1957 of 2019against persons unknown after a massive doxxing campaign was orchestrated.

Conclusion

Always remember, anyone can be a victim of doxxing. It therefore pays to be prepared whereby:

  1. One should know what data about them is public already;
  2. One should be familiar with the Terms & Conditions of platforms which might publish your content (e.g. this is how you can demand for removal);
  3. Know if you are searchable (and whether your personal information is on any public list);
  4. Secure all of your online accounts (to prevent information theft from hacking); and
  5. Know your rights.

– Joshua Chu, Solicitor, ONC Lawyers
– Francesca Lee, Trainee Solicitor, ONC Lawyers

 

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Solicitor, ONC Lawyers

Joshua Chu is a Litigation Solicitor qualified to practice in Hong Kong. Before becoming a lawyer, Joshua worked in the healthcare industry serving as the IT department head at a private hospital as well as overseeing their procurement operations.

Since embarking upon his legal career, his past legal experience includes representing the successful party in one of Hong Kong’s first cryptocurrency litigation cases as well as appearing before the Review Body on Bid Challenges under the World Trade Organization Government Procurement Agreement concerning a health care industry related tender.

Today, Joshua’s practice is mainly focused in the field of dispute resolution and technology law.

Aside from his legal practice, Joshua is currently also a Senior Consultant with a regulatory consulting firm which had been founded by ex-SFC Regulators as well as being a management consultant for the Korean Blockchain Centre.

Trainee Solicitor, ONC Lawyers