Right to privacy and information is balancing act
The jury's still out at the Law Society on whether directors' personal addresses should stay public
Recently, I have been asked repeatedly about the Law Society’s views on amendments made to the Companies Ordinance, specifically on one issue relating to the availability of directors’ residential addresses for public inspection.
In March 2010, the Law Society responded to a public consultation on proposed amendments to the Companies Ordinance – there were hundreds. We focused on the legal application of these proposals and our views – which sometimes varied between members – were made public.
The new Companies Ordinance was gazetted in August 2012, after a major and comprehensive re-write exercise, which began in 2006. Before that, overhauls to the previous incarnation were done on a piecemeal basis over 25 years, resulting in legislation which was terribly outdated, and was not in line with comparable common law jurisdictions.
Times had changed, and it was desirable to make the ordinance more user-friendly to help businesses, strengthen the competitiveness of Hong Kong, and consolidate its status as Asia’s major international business centre. But on the point of directors’ residential addresses, those of our members who supported the proposal did not consider that it was in the public interest that regulatory and enforcement agencies, creditors and liquidators should be able to contact directors personally at their residential addresses.
The principal purpose of including an address was for the service of legal or court documents and it was considered that this could be done just as effectively at a company’s registered office.
Those with an opposing view noted there had been no reported incidents of harassment or intimidation at the residential addresses of directors. As directors are subject to fiduciary duties and sometimes personal liabilities, public disclosure of residential addresses could also impose a sense of responsibility on directors, as they can be contacted even if their companies are no longer in operation. Policies adopted in comparable common law jurisdictions are not without problems and require additional administrative measures, which require expenditure.
We did note both sides of the argument in our submission. Those members who preferred the protection of privacy over the right to freedom of information supported the UK model, i.e. a director is given the option to show his service address on a public register, while keeping his residential address on a separate record.
The current issue that has been hotly debated looks at the issue from another angle – one that no one has focused on until recently. It is a question of the right of access to information balanced against the desire for personal privacy. It is a delicate matter and, as pointed out by the Privacy Commissioner in his statement on 14 March, neither of them is absolute.
Given the diverse views, it would be helpful if the government would conduct a further consultation on this point before implementing the amendments to the ordinance.
Dieter Yih is president of the Law Society