Right to Privacy and Right to Vote

Striking a proper balance between the right to privacy and the right to vote is of utmost importance in contributing to the preservation of integrity of the electoral system 

It is universally acceptable that statutory elections have to be conducted in a transparent, solemn and honest manner in that representatives who are able to duly reflect the majority of the electors’ choices are elected in strict accordance with the established electoral mechanism. These credentials ought to apply equally to statutory elections of all scales, including, for instance, the forthcoming Legislative Council General Election in September 2020. 

Personal Information from Public Registers

In the past, we received enquiries and complaints concerning the suspected unauthorised use of individuals’ personal particulars obtained from public registers. Dating back to July 2015, our office conducted a survey of 10 commonly-used public registers maintained by the Government and found that the safeguards afforded to these registers against potential misuse, which would otherwise amount to a contravention of Data Protection Principle 3 (use of personal data) or Part 6A (criminal offences of direct marketing) of the Personal Data (Privacy) Ordinance (Cap 486) (“PDPO”), were generally insufficient, either in the form of legal provisions or administrative measures.

Indeed, maintaining public registers and making available the same for public inspection have their legitimate interests to serve. I am sure members of the legal profession know very well that, for example, the Law List is maintained and is made available for public viewing and searching in, inter alia, the official website of the Law Society of Hong Kong (“LSHK”) for the purpose of facilitating the public and members of legal profession in identifying and locating solicitors, foreign lawyers and law firms registered with LSHK. A warning highlighted in red was duly inserted in LSHK’s website accompanying the Law List explaining the circumstances giving rise to possible contraventions of the PDPO, including the offence of direct marketing, where personal data contained in the Law List should not be used for purposes unrelated to those stated therein without the data subjects’ consent.

Relevant Considerations in making the Electoral Registers available for Inspection

Regarding the public inspection of electoral registers, the Court of Appeal on 21 May 2020 (Junior Police Officers’ Association of the Hong Kong Police Force and Anor v Electoral Affairs Commission, Chief Electoral Officer and Electoral Registration Officer [2020] HKCA 352 (on appeal from [2020] HKCFI 554), CACV 73/2020, 21 May 2020), allowed an appeal concerning, inter alia, the constitutionality of the statutory requirement for public inspection of electors’ final registers showing the names and principal residential addresses of the registered electors (“Linked Information”). 

Recognising the requirement under section 38(1) of the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation (Cap 541F) to supply each candidate with the part of the final register relating to the constituency for which the candidate is nominated, the Court of Appeal held that section 20(3) of the Electoral Affairs Commission (Registration of Electors) (Legislative Council Geographical Constituencies) (District Council Constituencies) Regulation (Cap 541A) allowing an absolute unrestricted public inspection of the final register is disproportionate to the aim of ensuring transparent elections.

It has been recognised that displaying the Linked Information of electors in the final register relates to an individual’s right as protected under Article 14 of section 8 in Part II of the Hong Kong Bill of Rights Ordinance (Cap 383) (which is identical to Article 17(1) of the International Covenant on Civil and Political Rights) guaranteeing the registered electors’ rights to privacy, family and home as well as their right to vote under Article 26 of the Basic Law of Hong Kong. In this connection, the Court of Appeal accepted that the requirement of displaying publicly the Linked Information of some electors, especially those targeted as victims of stalking or family violence, poses legitimate worries that legal and administrative safeguards would not provide them with sufficient protection. It is therefore of utmost importance that a proportionate balance is struck between the right to privacy and the right to vote and the measures adopted in the electoral system to achieve the aim of ensuring transparent elections.

In allowing the appeal and in consideration of the interim injunction previously in force “restraining publication of the electoral registers or supply of extracts of information such that members of the public are able to associate the electors’ names with their respective principal residential address” (ibid, §113), the Court of Appeal allowed members of (i) the press; and (ii) the political parties to inspect the final register so as to guard against someone who had the “ulterior and nefarious intent” in obtaining the Linked Information of a targeted elector, as opposed to doxxing against a large group of persons for unlawful use – which is the kind of situation that this limited discretion is called for. 

Electoral Policies and Systems that best suit the Needs of Local Circumstances

The Court of Appeal took a very sensible and practicable approach by designating specific categories of data users that may access the final register so as to preserve the aim of ensuring transparent election without substantially interfering with the right to privacy, both constitutionally and statutorily. This is very much the same as the best recommended practice advocated by my office where data users are encouraged to adopt the least privacy intrusive measure in achieving the very same purpose. 

Whilst the Court of Appeal indicated that it could not abdicate its function as “the ultimate guardian of law”, it was stressed that the function of the Court is not to formulate electoral policy or to devise a particular electoral system (ibid, §§95-96). It is against this background that the Election Affairs Commission on 18 June 2020 issued the Guidelines on Election-related Activities in respect of the Legislative Council Election that applies to the 2020 Legislative Council General Election and Legislative Council by-elections thereafter. My office also took the opportunity to issue the updated “Guidance on Election Activities for Candidates, Government Departments, Public Opinion Research Organisations and Members of the Public” (https://www.pcpd.org.hk/english/resources_centre/publications/files/electioneering_en.pdf) containing updated guidance, supported by practical case studies with a view to recommending best practices for stakeholders and fostering our established electoral mechanism that is transparent, proportionate and explainable. 

– Stephen Kai-yi WONG, Barrister, 
Privacy Commissioner for Personal Data, 
Hong Kong
(July 2020)

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Jurisdictions: 

Barrister, Privacy Commissioner for Personal Data, Hong Kong