Whether Hong Kong’s data protection law provides a right to privacy is being challenged by local Hong Kong entertainment magazines Sudden Weekly and Face Magazine who are appealing enforcement notices issued against them by the PCPD. The magazines’ appeals were dismissed by the
4 Baker & McKenzie | June 2014
Administrative Appeals Board (“AAB”) in January 2014, and the magazines have sought leave from the High Court to apply for judicial review to quash the decisions of both the PCPD and AAB. The High Court has not yet determined whether to allow the judicial review to proceed.
In February 2012, the PCPD found the magazines had breached Hong Kong data privacy law when they obtained, through systematic surveillance and the use of telephoto equipment, revealing and intimate photos of local televisions stars. The PCPD issued enforcement notices ordering them to destroy the photos and to implement internal guidelines to monitor the collection of personal data by covert and long-distance photography.
The magazines appealed to the AAB on grounds that the deadlines for compliance with the enforcement notices were unreasonable, there was a public interest in the collection and publication of the photos, that the collection was fair, and that the PCPD was not empowered to require the magazines to implement open-ended guidelines monitoring their collection of personal data.
The PCPD has said in relation to the cases that, “The right to freedom of speech and expression have to be balanced with the equally important fundamental right of privacy.” He has also called on the Hong Kong Government to introduce new legislation to balance the two rights. Critics suggest the PCPD has no legal basis for the decision.