Panels on Information Policy -- Minutes 26 September 1997

Provisional Legislative Council
PLC Paper No. CB(2)533
(These minutes have been seen by the Administration)
Ref : CB2/PL/IP

Provisional Legislative Council Panel on Information Policy

Minutes of Meeting held on Friday, 26 September 1997 at 8:30 am in Conference Room B of the Legislative Council Building

Members Present:

Hon CHOY So-yuk (Chairman)

Members Absent :

Public Officers Attending :

Item II
Items III and IV
Office of the Privacy Commissioner for Personal Data

Clerk in Attendance :

Mrs Constance LI: Chief Assistant Secretary (2) 2

Staff in Attendance :

Miss Eva LIU: Head, Research and Library
Mr Jackie WU: Research Officer 1
Mr Colin CHUI: Senior Assistant Secretary (2) 2

I. Confirmation of minutes of meeting and matters arising
(PLC Paper No. CB(2)315)
Confirmation of minutes of meeting

The minutes of meeting held on 22 August 1997 were confirmed.

Matters arising

2.. Members noted the Administration had provided further information on issues raised by members at the last meeting-

information on refusals under the Code on Access to Information (PLC Paper No. CB(2)200);
communication problems with mobile telephones and pagers (PLC Paper No. CB(2)334); and
inclusion of the subject of press freedom in the government public opinion survey (Paper No. CB(2)338(02)).

Measuring press freedom
(Paper No. CB(2)338(01))

3.. At the invitation of the Chairman, H(RL) presented the paper on measuring press freedom (Paper No. CB(2)338(01)) prepared by the Research and Library Services Division of the Provisional Legislative Council (PLC) Secretariat in response to members' request at the last meeting. The salient points of discussion on the paper are set out below.

4.. A member remarked that, according to the research paper, previous studies using three different approaches to measure press freedom gave consistent results that press freedom would likely decrease after the handover. He considered that researchers should conduct follow-up studies to confirm or rebut these results. H(RL) said that, as stated in the research paper, unless a society experienced a violent political change in which the press was immediately shut down, the trend in the change in press freedom could only be established after a long period of observation. Given that only about three months had lapsed after the handover, it would be too early to analyse whether the degree of press freedom in Hong Kong had been affected after the transfer of sovereignty from 1 July 1997. This view was confirmed by interviews with academic researchers and the Hong Kong Journalist Association (HKJA). In order to establish a trend for comparison, it would be necessary to conduct the study on a regular basis, with continued professional expertise and sustained financial resources. According to HKJA, sustained funding was a major constraint. Regarding the timing of the study, RO1 said that the academic researchers indicated that the study might be conducted six months after the handover.

5.. On the question whether overseas governments or public organisations had conducted studies to measure press freedom, RO1 pointed out that the academic researchers interviewed took the view that such studies should be undertaken by independent researchers. As governments were considered to have vested interest in the subject, studies undertaken by governments might be regarded as biased by the public. At the member's request, H(RL) undertook to provide further information on whether overseas governments provided financial assistance to studies of this nature.

H(RL)

6.. Another member remarked that the studies appeared to put more emphasis on the social responsibilities of media rather than press freedom. He was of the view that press freedom could be affected by interference from the government and other parties such as large corporations, which could result in varying degrees of self-censorship of the media. He supported the suggestion that a study on press freedom after the handover should be conducted. H(RL) responded that in the absence of a universal definition of press freedom, these studies were based on different definitions of press freedom. The issue of self-censorship and social responsibilities of the media had been covered by the HKJA's survey of journalists, while the public opinion surveys reflected the public perception of press freedom. A copy of HKJA's survey findings was placed in the Library of PLC Secretariat for members' reference.

7.. Responding to a member's question as to whether Freedom House's Freedom Rating could accurately measure press freedom, RO1 said that the rating included press freedom, and that Freedom House was a leading authority on the subject.

8.. The meeting agreed to discuss the need for an independent study on press freedom after the handover at the next meeting.

II. Development of Information Superhighway and Internet in Hong Kong
(Paper No. CB(2)338(03))

9.. At the invitation of the Chairman, representatives of the Administration briefed members on the progress of work in this area. The Telecommunications Special Adviser (TSA) said that the Administration fully recognised the importance of information technology development in maintaining Hong Kong as a leading world service and financial centre. In the Inaugural Address, the Chief Executive (CE) had emphasized that Hong Kong must give priority to this subject in the years ahead, and that CE was committed to the establishment of an Information Infrastructure Co-ordination Office (IICO). At present, the Administration was examining the best ways to develop information infrastructure in the most efficient and effective manner. The Administration aimed at bringing more concrete proposals to PLC as soon as possible, certainly before the end of 1997. On the timetable for setting up the IICO and its functions, TSA said that the Administration had yet to finalise the details and would advise the Panel once these were available.

10.. Responding to some members' remarks that Hong Kong lagged behind other countries in the development of information infrastructure, the Director-General of Telecommunications (D/Telecom) pointed out that Hong Kong had one of the best physical infrastructures for IT development in the world. The task forces under the IIAC had been examining the necessary arrangements which need to be put in place to regulate and promote IT infrastructure development and the applications in various sectors of the community. Unlike other overseas countries such as Singapore, Hong Kong had not made much publicity on its work in this area. In drawing up the blueprint for IT development in Hong Kong, the Government would make reference to overseas experience and IIAC members would visit USA, Singapore and Malaysia to compare IT development in these countries with that in Hong Kong.

11.. With regard to the Government's position on the remainder of Hong Kong Telecom International's exclusivities, TSA advised that it was Government's objective to promote competition and to enhance customer interest. The Government was having a dialogue with the Hong Kong Telecom seeking to improve the existing monopoly arrangement. As this would be a complex commercial negotiation, he could not give further information to members at the present stage.

12.. Referring to the letter from the Chairman of the previous Legislative Council House Committee to the then Chief Executive (Designate) dated 20 June 1997, members shared the views expressed in the letter and urged the Government to set up a high level committee to be chaired by the Chief Secretary for Administration or the Financial Secretary to direct and coordinate IT development in Hong Kong. As regards the Administration's position on the four suggestions in the letter, TSA advised that the Government would definitely take into account Members' views in mapping out the strategy for future IT development, and would brief the Panel on the progress.

III. Briefing by the Privacy Commissioner for Personal Data on the draft code of practice on personal identifiers
(Paper No. CB(2)338(04))

13.. With the aid of presentation materials (Paper No. CB(2)388(01)), the Acting Privacy Commissioner for Personal Data (PCPD) briefed members on the discussion paper and the draft code of practice on personal identifiers (Paper No. CB(2)338(04)). Discussion between members and PCPD on the subject is summarised below.

Legal effect of the code

14.. On the legal effect of the code of practice, PCPD advised that, like other codes issued under the Personal Data (Privacy) Ordinance, the code was not part of the law and therefore not legally binding. Nevertheless, in proceedings under the Ordinance, a contravention of a code may be used in evidence against the person concerned.

Definition of personal identifier

15.. In response to the Chairman, PCPD pointed out that a personal identifier was defined in the Ordinance as "an identifier -

that is assigned to an individual by a data user for the purpose of the operations of the user; and
that uniquely identifies that individual in relation to the data user,
but does not include an individual's name used to identify that individual."

An individual's image in a photograph, signature or fingerprints fell outside the definition as they were not assigned by a data user.

16.. A member remarked that requirements under the draft code, e.g. prohibition of collecting copies of identity cards, might cause inconvenience to business. PCPD said that the draft code sought to prevent the excessive collection of personal identifiers and copies of identity documents which could constitute an invasion of privacy and may facilitate fraudulent practices. The indiscriminate collection of identity card numbers without good reason should cease.

Access to names and identity card numbers in public registries

17.. A member raised whether public access to identity card numbers in public registries (e.g. the Land Registry) would not be available after implementation of the code of practice. PCPD said that, according to the draft code, unless required or authorised by law, the identity card numbers together with the holders' names should not be displayed publicly. Whilst both the names and identity card numbers of the persons concerned (e.g. present and previous property owners) had to be made known to other persons (e.g. prospective buyers) having a proper and legitimate interest to these personal data, it was not necessary to disclose these data to the public. The Office of the Privacy Commissioner for Personal Data (PCO) was studying the current registry operators' practices of allowing members of the public to have access to these personal data.

Collection of names and identity card numbers in petitions

18.. On the question whether collection of names together with identity card numbers for petition purposes was in breach of the draft code of practice, PCPD said that collection of identity card numbers was unnecessary in the circumstances and was therefore in breach of the code. The record of names and identity card numbers of petitioners, if available or accessible to other persons, would create a risk of fraud as such personal information might be misused by someone else to obtain services or benefits in the name of the true holders of the identity cards. In this connection, a member commented that inclusion of identity card numbers in petitions was to add credibility to the petition, as the receiver of the petition could ascertain the authenticity of the names of petitioners, for example, through the Immigration Department. PCPD responded that he doubted whether the Immigration Department would have the legal power to assist in such verification. To his knowledge, only the names of supporters would be collected by petitioners in other countries. He advised that other information instead of the personal identifiers of petitioners, such as addresses, could serve the purpose of giving the petition credibility.

Transitional provisions

19.. On the question whether copies of identity cards collected before implementation of the code of practice had to be destroyed, PCPD said that to comply with the draft code, copies of identity cards should be destroyed once the numbers had been recorded. The draft code provided one-year grace period for data users to review and implement possibly far-reaching changes to their current practices (e.g. collection of copies of identity cards) and systems to comply with the provisions of the draft code. PCO would welcome views on the proposals in the draft code, and the timeframe for implementation.

Privacy Ordinance notice and consent

20.. Referring to the American Express Card Company's privacy ordinance notice and consent (Paper No. CB(2)388(02)) tabled at the meeting, a member asked whether such notice would satisfy the requirements of the Ordinance. PCPD responded that Data Protection Principle 1 (DPP1) set out in Schedule 1 to the Ordinance required a data user to explicitly inform an individual -

on or before collecting the data, of the purpose for which the data were to be used; and the classes of persons to whom the data might be transferred; and
on or before first use of the data for the purpose for which they were collected, of his rights to request access and to request the correction of the data; and the name and address of the person to whom any such request might be made.

21.. Regarding transfer of personal data to third parties, PCPD reiterated the notification requirements set out in para 20 (a). He added that unless the individual concerned gave consent otherwise, his personal data should be used only for the purposes for which they were collected or a directly related purpose. Leaving aside the content of such authorisations, the notice issued by the American Express Card Company under discussion appeared to comply with the requirements under DPP1.

22.. As to whether the authorisations contained in the notice amounted to consent given by the individual concerned, PCPD pointed out that the Ordinance required that the individual's consent to a change in the purpose for which his or her data were to be used must be express and voluntary. The individual could also object to excessive collection of personal data. If the data user declined to provide service to him or her due to the objection, the individual could lodge a complaint with the PCO. PCPD advised that collection of excessive personal data was prohibited under the Ordinance, and the question of whether the content of the authorisations in question was in breach of the provisions of the Ordinance would require detailed examination.

IV. Intrusive reporting by the paparazzi and privacy of publicM figures
(Paper No. CB(2)338(05))

23.. The Chairman informed the meeting that the Panel agreed to discuss the item as proposed by Mr MA Fung-kwok. Discussion at this meeting would focus on the regulation of intrusive reporting and protection of privacy under the Personal Data (Privacy) Ordinance.

24.. At the Chairman's invitation, PCPD presented the discussion paper on the application of the Ordinance to intrusive reporting. The salient points of discussion are set out below.

25.. Regarding legislation against the use of intrusive means to collect personal data, the Principal Assistant Secretary for Home Affairs said that the Privacy Sub-committee of the Law Reform Commission (LRC) was studying this subject and the LRC would make recommendations on regulating surveillance in its report to be published by early 1998.

26.. In response to the Chairman, PCPD said that the Ordinance provided protection of personal data privacy to people irrespective of whether they were public figures. As regards the question of whether protection of public figures' privacy might be in conflict with their accountability to the public, PCPD said that people going into public life had to accept some disclosure of their personal data to meet the needs of public accountability. However, there might be areas of public figures' private life which they regarded as sensitive and chose not to disclose.

Fair means of collection

27.. In response to a member, PCPD said that collection by means unknown to the individuals (e.g. photo-taking in public places using long range camera lens or hidden cameras) amounted to covert collection, and was generally not considered to be a fair means of collection. Other examples of means of collection that were considered unfair in general were the taking of photographs of individuals in private premises from outside those premises without their consent, or taking photographs of individuals in public where those individuals had made it clear that they did not wish to be photographed. However, depending on the circumstances of the case, such means might be considered fair, if there was over-riding public interest in the collection of such personal data. The member was concerned that in the case of collecting personal data in public places, it might be difficult to prove that the data users had breached DPP1. PCPD said that PCO would collect evidence from the complainants and the data users and also from third parties if necessary, before taking a view as to whether there was a breach of the Ordinance. It was envisaged that the LRC recommendations would set out detailed provisions governing intrusive reporting.

Over-riding public interest

28.. A member sought clarification on the meaning of 'over-riding public interest' in para 5 of PCPD's paper. PCPD responded that public interest did not merely mean interesting to the public. There had to be public benefit arising from the disclosure of personal data. In adjudicating whether there was over-riding public interest in an intrusive report, PCPD would consider the circumstances of the case with reference to the relevant judicial rulings.

Data protection principle (DPP) 3

29.. The Chairman raised whether the Ordinance outlawed publication of photographs of individuals who only consented to photo-taking for purposes other than publication. PCPD said that under DPP 3, where data concerning an individual were collected by a data user for purposes other than for publication or broadcasting, such data might not subsequently be disclosed to the media for publication or broadcasting without the individual's consent. However, section 61 provided for an exemption from this restriction where the personal data concerned were disclosed to a data user whose business consisted solely or partly of a news activity, and where the person making the disclosure reasonably believed that the publication or broadcasting of the data was in the public interest. In this connection, PCPD added that the exemption under section 61 was also open to interpretation. Generally speaking, materials for news or current affairs were more likely to have justification of 'public interest' subject to the circumstances and evidence of each case.

30.. The Chairman asked whether publication of photographs of individuals taken by reporters was allowed under the Ordinance. PCPD said that, by not objecting to the photo-taking, the individuals gave implied consent to publication of their photographs taken by reporters.

Handling of intrusive reporting by PCO

31.. A member asked whether PCO took a proactive approach by identifying intrusive reporting and carrying out investigations on its own initiative. PCPD responded that as there had not been many complaints or enquiries on the subject, PCO would mainly act on complaints instead of taking a proactive approach in this respect. In handling complaints on intrusive reporting, PCO had to balance protection of privacy against freedom to information. While the general provisions of DPP1 provided some protection against the use of intrusive means to collect personal data, PCO was awaiting LRC recommendations in this area which might provide more concrete and detailed guidelines on the subject.

V. Items for discussion at the next meeting

32.. Members agreed to discuss newspaper reports on triad-related activities at the next meeting to be held on 24 October 1997 at 8:30 am in Conference Room B of the Legislative Council Building.

33.. The Panel also agreed to discuss at the next meeting how best the issue on measuring press freedom after the handover of sovereignty should be followed up.

VI. Any other business

34.. The Chairman reminded members that the briefing by the Secretary for Home Affairs relating to information policy in the Chief Executive's Policy Address would be held on 14 October 1997 at 3:30 pm in the Chamber of the Legislative Council Building.

35.. Members agreed to the following schedule of Panel meetings in 1998 -

Date	Time	Venue
23 January 1998	8:30 am	Conference Room B
27 February 1998	8:30 am	Conference Room B
20 March 1998	immediately after the Finance Committee meeting held at 2:30 pm on the same day	Conference Room B

36.. The meeting ended at 11:35 am.

Provisional Legislative Council Secretariat
18 November 1997

Last Updated on 5 December 1997