In May this year, the UK Supreme Court handed down a landmark ruling on the protection of privacy under English law. The Supreme Court ruled that individuals may obtain injunctions against intrusions into their privacy, even when the information they are seeking to injunct is well known to many or can be very easily ascertained from the internet. In doing so, the court unhitched the law of privacy from the workhorse of confidentiality to which it had long been unhappily tethered.
The decision is a very welcome one, in that it has been long coming. In the age of the internet, big data, private and public big brother-style surveillance and data leaks, such as the Panama Papers, it is almost impossible to be certain that any information will remain confidential. Technology now exists to scan faces from CCTV footage so that people’s movements can be traced long after an event. People post many pieces of embarrassing information on the internet which can often be recovered with the right tools without even a need to hack. Things that would in the past have been long forgotten or never easily proved can with the help of technology be accessed and then spread to the world.
The big question for Hong Kong is: can and should the Hong Kong courts follow the lead of the UK Supreme Court in creating a tort of invasion of privacy?
The UK decision was based on Art. 8(1) of the European Convention on Human Rights (“ECHR”) that provides:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
There is no equivalent provision of Hong Kong law that can be directly applied, but there are provisions that would allow the courts to reach a similar conclusion to the PJS case.
The PJS Case
PJS is the husband of a very well known male British entertainer (referred to as YMA in the judgment). They have young children. In 2009, PJS met and had homosexual encounters with AB who was in a relationship with CD. The relationship culminated in PJS, AB and CD having a three-way sexual encounter. They did not use protection. After this, the sexual relationship ended but PJS and AB remained friends. YMA was said to have been aware of the relationship between PJS and AB.
PJS and AB exchanged a number of explicit messages on Facebook messenger which AB kept. These clearly proved the nature of the relationship and that the three-way sexual encounter had occurred.
In early January 2016, AB and CD approached the British tabloid the Sun on Sunday, part of the News Group, and sold their story to the paper. The editor of the Sun then informed PJS he intended to publish the story. PJS applied for an injunction that Cranston J refused at first instance. He did grant a temporary injunction pending appeal. The Court of Appeal on 22 January 2016, granted an injunction. The Court of Appeal held there was no public interest in publishing the story. The Sun had sought to argue that PJS and YMA had publicly advocated safe sex and the story was therefore in the public interest to show that they were hypocritical. This was rejected.
AB and CD then sold their story to the National Enquirer, a gossip magazine in the US, that published a lurid expose including screenshots of the Facebook messages between PJS and AB. After representations from PJS’s solicitors, the National Enquirer geo-blocked the online story so that it was only available in the US. Nevertheless many internet users re-posted the story and one newspaper in Scotland (where the English injunction did not extend) published the story.
Given the wide availability of the story on the internet, the News Group applied to the Court of Appeal to discharge the injunction on the basis that the information that was the subject of the injunction was now in the public domain and the injunction no longer served any useful purpose. The Court of Appeal discharged the injunction on this ground but granted a stay pending an appeal to the Supreme Court.
The Supreme Court by a 4–1 majority allowed the appeal holding, effectively, that Art. 8 of the ECHR created a tort of invasion of privacy; and even though the information which was sought to be published was no longer confidential, PJS was entitled to restrain its publication. Lord Toulson dissented primarily on the basis that what is not confidential is not private. The majority, on the other hand, noted that there was a world of difference between the information being available to those searching the internet with a prurient interest and the information being splashed on the front page of newspapers in lurid detail, where even those who had no interest would see it. Further, the effect of the publication on PJS and YMA’s young children was a relevant matter to be taken into account. The Supreme Court agreed that there was no public interest in the publication of the details of the relationship and therefore ordered the injunction continue until trial. As it was necessary to balance the right against intrusion of privacy with freedom of expression, the injunction was granted on the basis that the plaintiff was likely to succeed at trial (and not the normal test of a triable issue as set forth in American Cyanamid Co v Ethicon Ltd  AC 396) as required by Art. 12 of the ECHR.
The Supreme Court downplayed the groundbreaking nature of this decision, referring to a number of first instance decisions made since use of the internet had become widespread where English courts had granted injunctions to prevent the intrusion of privacy. Nevertheless, the decision of the Supreme Court, the Court of Appeal and, even the dissent of Lord Toulson, illustrate the important change in the law this case has brought. Until the Supreme Court decision, privacy and confidentiality were generally seen to go hand-in-hand. Something could not be private if it was not confidential. The law on the protection of privacy had grown out of the law of confidentiality. Or as Lord Nichols put it in Douglas v Hello! Ltd (No 3)  QB 125, the law of privacy had been “shoehorned” into the law of confidentiality. This has often led to strange results. Photos taken in public streets were held to reveal private matters, when traditionally anything occurring in public has never been considered confidential. In New Zealand in response to these difficulties, the Court of Appeal held in Hosking v Runting  1 NZLR 1 that there was an independent right to privacy. Courts in Australia, England and Hong Kong did not follow suit.
Implications for Hong Kong
What are the implications of the PJS decision for Hong Kong?
In a case in 2014 in Hong Kong, X v Y  5 HKLRD 823 Chow J hinted at the difficulties that a Hong Kong plaintiff may face. In that case, X a well known Hong Kong person had had an intimate relationship with Y. Gifts were exchanged and photos taken privately at restaurants. X gave Y a cheque for HK$300,000 which she did not present for payment.
Some time later, Y sent Whatsapp messages to X threatening to disclose the relationship, photographs and cheque unless he acceded to her demands. The matter was resolved by a consent summons, but Chow J did comment that although the matter had not been argued fully, he may not have considered it right to prevent X from disclosing her relationship with Y.
Article 14 of the Hong Kong Bill of Rights (“HKBOR”) gives a right to privacy similar to that found in Art. 8 of ECHR. However, s. 7 of the Hong Kong Bill of Rights Ordinance (Cap. 383) provides that it only binds the government. The Court of Final Appeal in Leung Lai Fong v Ho Sin Ying (2009) 12 HKCFAR 581 confirmed that the HKBOR cannot be relied upon in inter-citizen cases.
It is, therefore, not possible to rely directly on the HKBOR to support an action for intrusion of privacy. Nevertheless, Art. 30 of the Basic Law provides that Hong Kong residents have a right to privacy of communications and that no person on any grounds shall infringe on that privacy. Article 29 provides that residents’ homes should be inviolable.
These are fundamental rights that the courts should protect. The principles relied upon in the PJS decision could be applied by the courts in Hong Kong in developing the common law by reference to these articles of the Basic Law.
This would not give blanket protection to people to seek to protect their privacy no matter what. The freedom of speech, of the press and of publication are also fundamental rights under Art. 27 of the Basic Law and any court in considering whether to grant an injunction would have to balance the competing rights, just as the UK Supreme Court did in the PJS case.
The courts in defamation cases against newspapers set a very high standard before an interlocutory injunction will be granted (see Emperor International Holdings Ltd v Atnext Ltd  1 HKLRD 77). Similar principles can and should be applied in cases where intrusion of privacy is alleged, particularly, if as in the PJS case, the matters sought to be published are in the public domain.
Given the rapid development of technology and ever wider spread of the internet, the protection of privacy must be separated from its roots in the law of confidence. Many things can be private although not strictly confidential. In most cases, people should have a right to not have their private affairs splashed over newspapers. Hong Kong courts should follow the lead of the UK (and New Zealand) and provide for the protection of privacy either by developing the law as suggested above or following the New Zealand development of the common law.