Knee-jerk curbs on media must be avoided
The publication of covertly taken pictures showing Twins pop star Gillian Chung Yan-tung changing her clothes backstage at a concert has, understandably, prompted a strong reaction from the community. Pressure is now mounting for the government to seek new laws to curb excessive media intrusion into people's privacy, with Chief Executive Donald Tsang Yam-kuen promising this will be considered.
While the publication of the pictures by Easy Finder magazine is an unacceptable breach of the singer's privacy and also of professional ethics, the greatest caution should be exercised before imposing new restrictions on the media. Legislating would involve striking a balance between two fundamental rights - privacy and press freedom. This is a difficult and potentially dangerous exercise, which poses bigger problems than the recent passing of covert surveillance laws.
In Hong Kong, as well as elsewhere in the world, attempts have been made to grapple with this problem. The Law Reform Commission has published several well-intentioned, thoroughly researched reports calling for new laws to better protect privacy. Proposals put forward in 2004 include forming an independent statutory body to monitor the media and the creation of new channels by which victims of certain types of intrusion into their privacy can seek compensation in the courts.
These have, so far, not been acted on by the government because of well-founded concerns in the community that they may result in the curbing of press freedom. Now, with emotions running high as a result of Chung's case, there is a danger that those concerns will be brushed aside in a rush to implement the commission's proposals. That must not be allowed to happen.
The prime target of any move to restrict the media is Hong Kong's tabloid-style newspapers and magazines. They are operating in an increasingly competitive market and there have been, from time to time, extreme breaches of ethics and invasions of privacy. The Twin case, although distressing for the singer, is not the worst of its kind.
There may well be room for improving the existing system to make it easier for the perpetrators of such articles to be punished. But to introduce sweeping legislation that imposes new restrictions on the whole industry is a step which should not be taken lightly. While safeguards can be included in a bid to protect press freedom, the risk of a chilling effect will be ever present.
Freedom of expression includes the right to shock, offend or disturb. But this also comes with responsibilities, including respect for the right to privacy. Easy Finder crossed the line with its secretly taken pictures of Chung in a state of undress. While the existing system is not perfect, it would be wrong to say there are no legal consequences.
Police are investigating Chung's case and the Obscene Articles Tribunal has classified the Easy Finder issue concerned as indecent. The tribunal has the power to impose fines and prison terms for breaches of restrictions imposed on the publication of indecent materials.
Much more important, though, so far as privacy is concerned, is the civil action Chung has filed in the courts for breach of confidence. It remains to be seen whether such an action, brought under the common law, will lead to an award of damages in her favour.
Supermodel Naomi Campbell succeeded with just such a claim in Britain's House of Lords in 2004, after a newspaper published photographs of her attending a Narcotics Anonymous meeting. This landmark decision, by a three-to-two majority, was controversial and raised questions of its own about how to strike a balance between press freedom and the protection of privacy. It will be interesting to see how the Hong Kong courts approach the case. Meanwhile, there is a need for cool heads so that this difficult and important issue can be discussed rationally. Any rush to pass laws imposing curbs on the media should be resisted.