The scope of personal data ‘collection’ is notoriously uncertain. In Eastweek Publisher Ltd & Another v Privacy Commissioner for Personal Data [2000] 2 HKLRD 83 (CA) the Court of Appeal gave an unduly restrictive definition of personal data ‘collection’
Eastweek magazine was described by Ribeiro JA as a ‘glossy variety magazine’ (at [1]). On a Saturday in the crowded street, Eastweek photographers surreptitiously used long-range lens to take photos of the complainant. The photograph was published in an article in Eastweek, with negative comments on the complainant’s fashion sense. The complainant, together with five other women, in the article were ‘anonymous’ photographic subjects.
The Privacy Commissioner found for the complainant: Eastweek had breached the first data protection principle (DPP1(2)(b) – in collecting the complainant’s personal data by ‘unfair’ means.
However, the Court of Appeal found for Eastweek.
Ribeiro JA gave a narrow definition of personal data ‘collection’ as collecting or compiling information about an ‘identified’ individual (at [14]). This had allowed Eastweek to escape liability because the photographer did not identify, or sought to identify the complainant.
Eastweek has attracted widespread criticism. The Privacy Commissioner[1] challenges this approach. A prime example is the use of CCTV, with Artificial Intelligence functions, to ascertain individuals’ identities. Would this fall within the definition of ‘collection’ in Eastweek?
The point was tested in 張順清 v 個人資料私隱專員 (Appeal No. 7/2019) [2019] HKPCPDAAB 7. Ms Cheung complained that the incorporated owner had installed a CCTV (13 inch) next to his flat. Each floor had two CCTVs installed in the corridor. Ms Cheung complained that the collection of her personal data was unfair and excessive. Applying the narrow definition of ‘collection’ from Eastweek, the Appeal Board held that there was no data ‘collection’. The data user (incorporated owner) did not compile information about any ‘identified’ person.
September 2024
Dr. Anthony Lai, Dr. Rita Cheung and Mr. Parkas Chandar
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