Privacy law must not hurt press freedom
Stalking takes a variety of objectionable forms, from being followed to unwanted or abusive communication, verbal and physical harassment and vandalism. Smartphones and the internet have widened its scope. A law making it a criminal offence would seem uncontroversial, until you consider possible unintended consequences, such as inhibiting press freedom by obstructing legitimate media scrutiny in the public interest.
Community fears about this are one reason the government took no action for a decade on a report from the Law Reform Commission (LRC) proposing such a law. Under pressure from increasing public concern about harassment and invasion of privacy, officials finally put the LRC report out for consultation nearly two years ago and also commissioned a report from the University of Hong Kong's centre for comparative and public law. The latter has raised fresh concerns.
A stalking law has to reconcile two core freedoms guaranteed by the Basic Law - press freedom and the right to privacy. The government suggested the media's concerns could be met by provision of a defence that pursuit or conduct is reasonable under the circumstances. This failed to meet media industry concerns. The journalists' association, for example, questioned whether investigative journalism in the public interest would be considered legitimate news gathering. The HKU report says, rightly, that this leaves the legal position too uncertain and calls for both journalists and campaigners to be exempted from both criminal and civil liability.
Safeguarding privacy with criminal sanctions at the expense of press freedom would not only be the thin end of the wedge against our cherished right of free speech, but would be a threat to a forum for ordinary citizens to speak out freely against encroachments on their rights. Officials are seeking the views of lawmakers. To be sure, tabloids and magazines have been responsible from time to time for egregious breaches of professional ethics and invasions of privacy. But we need to be wary of a law that opens the door to an attack on press freedom.