There's little to stop phone-hacking in HK

The phone-hacking exploits of Rupert Murdoch's News of the World have caused global outrage, but in Hong Kong the practice falls into a legal grey area.

In the past month, the 168-year-old British tabloid has been shut, its former editors arrested and owner Murdoch dragged in front of a parliamentary committee for questioning.

That followed the revelations that its staff tampered with the voicemail of a 13-year-old murder victim and of the existence of 4,000 names in notes kept by a private investigator who worked for the paper and served a jail term for hacking the phone of a member of Britain's royal household.

Accessing another person's voicemail is illegal in the UK under the Regulation of Investigatory Powers Act 2000. But in Hong Kong, the Interception of Communications and Surveillance Ordinance applies only to surveillance by public officers.The Personal Data (Privacy) Ordinance offers some degree of protection, but the Office of the Privacy Commissioner's powers of enforcement are weak. The most that could be done in response to a proven complaint would be to issue an enforcement notice, which would make a second offence a criminal act.

'It's a grey area,' said Anthony Poon Kin-sum, a partner in law firm Baker & McKenzie who has handled cases for various newspapers in the High Court. 'But you are basically stealing others' information without permission. I think in Hong Kong this area of the law needs to be developed and legislation sped up.'

The same ease of access enjoyed by the News of the World applies in Hong Kong. 'Too often, the system operators have opted to make things simple for users,' Alan Brill, senior managing director at security firm Kroll Ontrack, said. 'Unless properly set, many voicemail systems allow users to access mail remotely protected by nothing more than a short passcode. And often the system allows trivial passcodes like 0000, 1111, 1234 and the like, which are very easy for a hacker to guess.'

Brill said the passcodes generally do not expire and many systems have a 'mark as unheard' feature, allowing hackers to cover their tracks.

They also lack a basic message telling you when your mailbox was last accessed. Indeed, in the UK the reason the News of the World could carry on as long as it did was because none of its victims suspected their phones were being hacked. It took a hunch by Prince William - who had only told three people of a knee injury before news of it appeared in the tabloid - to spark the first police inquiry.

The ease of accessing other people's voicemail worked to the advantage of one veteran journalist in Hong Kong, who chose to remain anonymous, when looking for a scoop over a decade ago on a high-profile celebrity's rumoured marriage. 'I can't believe that in a tech-savvy place with a competitive media scene like Hong Kong I was the only one who thought of it,' he said.

Trying to gather figures on the extent of phone-hacking in Hong Kong is hard. The Privacy Commissioner and the Telecommunications Authority (Ofta) have received no complaints.

Neither has the Hong Kong Press Council in all its 11 years. The police have no statistics on phone-hacking.

Although no cases of phone-hacking have reached the Hong Kong courts, Marcelo Thompson, who lectures on privacy and data protection at the University of Hong Kong's law faculty, says it is far from clear that perpetrators of such practices are allowed a free hand.

If hacking had to be defended in court, he says, it would have to be for 'hard news' stories which were in the public interest.

The meaning of 'public interest' under the personal data ordinance was open to interpretation, Thompson said, which should put a check on journalists' behaviour.

'It seems to me that the threat of up to five years' imprisonment just for misreading the murky waters of the public interest would be arbitrary - and its effects chilling.'

Additional reporting by Martin Wong