Extent is privacy ‘protected’ by law?

The principle of privacy is recognized in several international covenants. The United Nations Declaration on Human Rights, for example, says that ‘no-one shall be subject to arbitrary or unlawful interference with his privacy, family, home and correspondence'. The European Convention on Human Rights, and the International Covenant on Civil and Political Rights make similar statements.

Similarly, the Organization for Economic Cooperation and Development OECD issued a set of Guidelines concerning the protection of privacy of personal records in 1980. These broad and voluntary Guidelines were meant to establish standards for privacy rules followed by governments and businesses. You can view these guidelines at the following link: http://www.cdt.org/privacy/guide/basic/oecdguidelines.html (Although many companies claim to have adopted the guidelines, very few have ever implemented practices that directly matched the OECD standards.)

Despite the presence of covenants and guidelines recognizing and supporting the principle and importance of privacy, it must be emphasized that the laws of most places (including Hong Kong's Basic Law) give no general right to privacy. Moreover, courts in Hong Kong have rejected opportunities to create such general rights. For example, in the English case Malone v MPC (No.2) [1979], the contention that the tapping of the plaintiff's telephone in the course of a criminal investigation violated his right to privacy was rejected. The ruling for this cased said that –‘It is no function of the court to legislate in a new field. The extension of existing laws and principles is one thing; the creation of an altogether new right is another’.

Therefore, in Hong Kong, in the absence of a clearly defined legal right, privacy must be looked at in the context of the Data Protection (Privacy) Ordinance which offers data privacy protection, as opposed to personal privacy protection. Hence, personal privacy per se, is not covered by legislative provisions in Personal Data (Privacy) Ordinance. Hong Kong's Data Protection (Privacy) Ordinance is based on a similar 1984 UK act, which is turn was based on a European data protection convention. We will examine the Data Protection Ordinance in more detail later in this unit, but for the moment let's briefly look at how and why the Personal Data (Privacy) Ordinance evolved.