MTR videos are not Personal Data under PDPO
10 September 2019
We note with great concern the claim of Sammy Wong, Chief of Operations of MTR Corporation Ltd (MTRC, 0066), that they "couldn't make the recordings public because they had to strike a balance between the privacy of passengers and the public's concerns" (according to RTHK, 10-Sep-2019), in relation to the incident in Prince Edward Station on 31-Aug-2019.
This may reflect a fundamental misunderstanding of the Personal Data (Privacy) Ordinance (PDPO). In a landmark case in 2000 (Eastweek Publisher Ltd v Privacy Commissioner for Personal Data), the Court of Appeal noted that photographs taken and published of people whom the publisher does not identify (or even know the identity of) are not "personal data" within the meaning of the PDPO. The fact that people who already know the person can recognise them in the photos does not mean that the publisher has identified them; the reader has.
This is largely common sense. A person walking down the street may recognise a friend. He may take a photo of people in the street in which he recognises a friend, and he may see video on TV in which he recognises a friend - but that doesn't mean that the publisher has published any personal data. Only people who recognise the subject would know his name, and they already know that. The picture doesn't disclose the identities of anyone who is unknown to the viewer. On the other hand, if the viewer then republishes a photo with a caption which identifies the person, then he has published personal data about them.
Freedom of information
In our view, the public interest would be served by making the recordings public. Whatever the concerns of the MTRC and Police may be, they shouldn't hide behind excuses of "privacy". Release all the video that you have, and maybe the ugly rumours will be replaced with facts about what actually happened. If this were the United States, the media could have obtained video from police body-cams and station/train cameras under the Freedom of Information Act. Hong Kong still lacks a Freedom of Information law. A consultation on this closed on 5-Mar-2019 and no results have been published. If we ever get such a law, it should apply to statutory bodies and franchised transport providers.
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