Webb to defend HK media freedom in landmark appeal
4 July 2015
Long-term readers of Webb-site Reports may have noticed that over the past few months our editorial output has been somewhat lower in quantity than normal. It is only now that we can explain why. The founder, editor and publisher of Webb-site, David M. Webb, has diverted a large amount of time to preparing for an appeal against an "Enforcement Notice" issued in August 2014 by the Privacy Commissioner for Personal Data (PCPD) under the Personal Data Privacy Ordinance (PDPO), requiring us to redact three of the thousands of reports on our site.
Our appeal will be heard by the Administrative Appeals Board (AAB) in a public hearing on Monday 13-Jul-2015, and interested observers can find details of that below. Although we have known the date for 2 months, the hearing schedule was published today.
The issues the case raises
The subjects of the three brief reports in this case would be immaterial to most readers, but there are important public interest issues at stake for freedom of speech and publication in HK and, conversely, access to legally published information, which is why we decided to invest substantial time in challenging this decision.
The brief facts are that the reports contained information, including the full names of the parties, which we collected from online judgments which were published in 2000, 2001 and 2002, following open hearings in the Court of Appeal and Court of Final Appeal in a matrimonial case. Our reports were hyperlinked to the judgments, which were published on the judiciary web site, although we could have easily linked to our own copies. In 2010 and 2012, some 10 years after the judgments were published, the copies on the judiciary website were edited to anonymise the names of the parties.
The allegation in the Enforcement Notice (which we deny) is that by maintaining the reports and hyperlinks in our archive, which like virtually all online archives is searchable either via our site or via search engines, we breached Data Protection Principle 3 (DPP3), using personal data for a purpose other than the purpose for which the data was to be used at the time of the collection of the data. The allegation of course implies that applying the PDPO and the Data Protection Principles to legally published public domain data is both constitutional and within the legislative intent, something which, amongst other things, will be an issue in the appeal.
To our knowledge, the only previous AAB case which dealt with media freedom to report legally available public domain data was Tung Lai Lam v PCPD (AAB 36/2007), in which the PCPD (then under a different Commissioner, lawyer Roderick Woo Bun) decided not to investigate a complaint and the AAB upheld that decision. The AAB found that the "purpose" of the newspaper, Ming Pao, in collecting data about Mr Tung from a court writ that he filed, was reporting, and when they published their article, their purpose had not changed, so DPP3 was not contravened. The AAB held that the meaning of "purpose" in DPP3 was the newspaper's purpose of data collection, not the intention or purpose of the complainant. The decision in that case (in Chinese) is here and it is also summarised in a PCPD Case Note in English here and Chinese here.
Webb-site occasionally receives requests from the public asking for information to be removed from Webb-site Reports or Webb-site Who's Who, our database which covers over 140,000 people (living and dead) and over 2 million organisations, including all the members of statutory and advisory bodies and directors of listed companies in HK, SFC licensees, as well as obscure things that pique our interest such as descendants of William The Conqueror. All information in Webb-site Who's Who is collected from the public domain, and we do not accede to such take-down requests, because to do so would amount to self-censorship and create Orwellian memory holes if there are no other remaining sources.
Pending the outcome of this appeal though, we have censored the three reports, so that you cannot find the related judgments via Webb-site.
The implications of the Enforcement Notice, if upheld, would have a chilling effect on publication within HK, including access to online archives of HK-based media. The PCPD would be able, upon complaints from the public, to order the take-down of articles which the PCPD believes breach the PDPO - for example, articles about convictions, bankruptcies, births, marriages, divorces or about civil litigation such as libel and defamation suits or battles between relatives over inheritance (estates). For many HK-based media, the cost of running take-down departments to deal with requests from the public for removing such information would be prohibitive. As a result, HK-based media would likely either close their archives or restrict their search facilities to only recent periods, making it impossible to find old articles.
What is the Administrative Appeals Board?
Under Section 50(7) of the PDPO, appeals against PCPD Enforcement Notices are heard by a 3-member panel of the AAB, established by the Administrative Appeals Board Ordinance (AABO) which hears appeals of decisions under 73 different laws and regulations ranging from the Apprenticeship Ordinance to the Wild Animals Protection Ordinance. The AAB plays an important role in lessening the burden on our courts that would otherwise have to hear all cases. Under AABO Section 24, the Board may, before reaching a decision, refer any arising question of law to the Court of Appeal for determination.
Under AABO Section 23, the panel makes decisions by majority, except on questions of law which are determined by the Chairman or Presiding Chairman, who is either a solicitor or barrister who would be qualified for appointment as a judge of the District Court. The AAB has a Chairman and 7 Deputy Chairmen who act as Presiding Chairmen in appeals.
Unlike the judiciary, which puts written public judgments online, the AAB does not yet have its own website, but has a single page on the site of the Administration Wing of the Chief Secretary for Administration's Office. Separately to this appeal, we have urged the AAB to get its own website and put all its public decisions online. As of September 2014, we were informed by the AAB Secretary that this was in progress. Meanwhile, hearing schedules are now being published on that page. That followed an early request by Webb-site last year after we noticed that although the hearings were public, the public had no way of finding out when and where they would be held!
The public appeal hearing
Under AABO Section 17, all hearings are open to the public except in special circumstances, and ours is no exception. Under AABO Section 2, the parties to the appeal are the Appellant (David M. Webb), the Respondent (the PCPD), and any other person who is bound by the decision appealed against, which in this case is the person whose complaint to the PCPD gave rise to the Enforcement Notice, Luciana Wong Wai Lan (Ms Wong). As shown in Webb-site Who's Who, she is a member of several statutory bodies including the Town Planning Appeal Board Panel and the Environmental Impact Assessment Appeal Board Panel. We do not know Ms Wong personally - she is just one of the thousands of people who have been mentioned in Webb-site reports over the years.
Ms Wong withdrew her complaint on 8-Jan-2015, but the PCPD decided, partly due to the public interest issues to be determined, not to withdraw the Enforcement Notice and hence this appeal. Ms Wong made an application for the Board to hear the case in private (which both we and the PCPD opposed) and for an anonymity order (which we opposed and the PCPD supported), but in a ruling on 30-Jun-2015, the Presiding Chairman dismissed the application.
The public hearing, AAB Case 54 of 2014, will be heard in the morning of Monday 13-Jul-2015 at Conference Room 8, G/F, Central Government Offices, 2 Tim Mei Avenue, Tamar starting at 09:30. David Webb is unrepresented and will appear in person. To reserve a seat, contact the AAB Secretariat (details here). Seating is on a first-come-first-served basis, with any walk-in observers allowed only if remaining space permits.
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