Following is a question by the Hon Ip Kwok-him and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Stephen Lam, in the Legislative Council today (November 24):
It has been reported that a video clip and some photos of a female member of the national diving team taken clandestinely with an infrared night-vision mode camcorder have recently been circulated on the Internet, which was a serious affront to the individual concerned and gave rise to the community's concern about the invasion of privacy by using camcorders and cameras with infrared recording function as well as other high-technology devices. In this connection, will the Government inform this Council:
(a) whether it has imposed effective control of the sale, adaptation and use of high-technology devices such as infrared camcorders and cameras with "see-through" function; if so, of the details; if not, the reasons for that;
(b) whether it has considered introducing legislation to combat the use of high-technology devices such as camcorders and cameras with infrared recording function to film images of another individual's body clandestinely and invade other people's privacy; if so, of the details; if not, the reasons for that; and
(c) given that major incidents involving invasion of other people's privacy occurred time and again on the Internet, whether the Government had assessed in the past three years if the measures in place to monitor the unlawful acts of privacy invasion on the Internet were sufficient to deter similar offences?
(a) At present, there is no specific legislation or control on the sale, adaptation and use of infrared recording devices. The sale of such devices, like other commodities, is subject to regulatory control under ordinances such as the Trade Descriptions Ordinance and the Consumer Goods Safety Ordinance. These ordinances impose control for consumer protection (such as prohibiting traders from applying false trade descriptions to goods) and product safety.
(b) According to the Data Protection Principle (DPP) 1 of the Personal Data (Privacy) Ordinance (PDPO), the data subject should be informed of whether it is voluntary for him or her to supply the data when his or her personal data are being collected, and the purpose for which the data are to be used. DPP 1 also specifies that personal data shall be collected by means which are fair in the circumstances of the case. If a person deliberately uses infrared recording devices to capture any other person's body part which he or she has no intention to show, such act may constitute a breach of the DPP 1. If any data user violates the above-mentioned DPP, the Privacy Commissioner for Personal Data (PCPD) may issue an enforcement notice directing him or her to remedy the contravention, including deleting the personal data (including images) which are unfairly collected. Any person who considers that his or her personal data privacy has been infringed can lodge a complaint with the PCPD or shall be entitled to compensation from the data user under Section 66 of the PDPO. The personal data privacy protection offered by the PDPO is not limited to data collection by any specific technology (such as infrared devices) but is applicable to different circumstances in accordance with the relevant statutory provisions.
Whether the body images captured by infrared recording devices are indecent or obscene and contravene the law will depend on the individual circumstances of the case. The publication of indecent articles is regulated under the existing Control of Obscene and Indecent Articles Ordinance (COIAO).
(c) Hong Kong, as a community with free flow of information, has no specific legislation or control measures in respect of the Internet. Acts which infringe personal data privacy are subject to the regulation of the PDPO irrespective of whether or not the acts are conducted on the Internet.
Publishing articles on the Internet is subject to the regulation of the COIAO. In addition, the Television and Entertainment Licensing Authority (TELA) and the Hong Kong Internet Service Providers Association jointly issued a Code of Practice in 1997 after consultation with the public and the trade. The industry is encouraged to follow the Code of Practice. According to the Code of Practice, if indecent materials are found in a website, TELA will request the website administrators to include a warning or remove the materials. If it is found that a website contains obscene content, TELA will refer the case to the Hong Kong Police Force for follow up actions, including prosecution.
Ends/Wednesday, November 24, 2010