tim's experiment

Much excitement last week over High Court Action number 1957 of 2019, in which the government is seeking an injunction against “doxing”. This is a hobby pursued by some netizens of putting on the web the names, addresses and other details of people they disapprove of, in the hope that readers will give the disapproved a hard time.

During the last three months there have apparently been some examples of this happening, with ensuing harassment or disparagement of police officers’ family members and particularly their kids.

This is clearly unacceptable. Most of us will have a sort of sliding scale which indicates whether the personal information of a person is important. We expect to have access to information about major public figures because it is relevant to their work. Elected representatives are a legitimate interest.

Similarly readers are occasionally told that a media writer offering prescriptions for Hong Kong has a passport which allows him or her to evade the consequences of his advice, or may indeed actually live in Canada. A relevant point.

On the other hand the fact that the spouse of Police Inspector X is a teacher at Hong Kong U clearly can be abused and should be of no interest to most of us. Prof X may get undeserved stick from students. And there can be no defence for revealing that the X offspring go to a particular school. We do not have the privilege of choosing our parents.

Standards in these matters seem to be changing. In the old days many people published their name, address and phone number. The resulting tome was known as the telephone directory and copies of it were widely available.

Civil servants, including policemen, were even more visible. There was a Government telephone directory, which anyone could buy and many people did. The annual budget document included an update on all official pay scales. There was a Blue Book, which listed all civil servants by department with some further details like date of joining, date of appointment to present rank etc.

Using these together you could find out a great deal about any individual civil servant, including his or her salary. I once wrote a piece about this, and demonstrated the process with an example. For this I picked a famous RTHK broadcaster, on the grounds that he was likely to be of more interest than some unknown bureaucrat. He was furious.

It turned out that this gentleman had been less than honest with his wife about how much his official salary was. This illustrates an important point about privacy, which is that it can be used to conceal what should not be concealed. A balance is required.

Still, the invention of the internet has rather changed the game. All sorts of information can be collected and broadcast in a way which was not available when the necessary data could only be culled from thick books available in a few libraries.

“Doxing” has thus become a problem, though it is not clear that the problem is a legal one. The practical problem is that you can “dox” anonymously on an overseas server, leaving the forces of order helpless. And, as a great American judge once said: “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent.”

This brings us back to Action number 1957. This is a civil action. That is to say nobody is being prosecuted for a crime. It is a characteristic of civil actions that they involve at least two people. The person who brings the action is known as the plaintiff (lawyers love these little oddities) and the person at whom it is targeted is known as the defendant.

So if Mr Smith, believing that Mr Jones sold him a lemon, sues to seek his money back Mr Smith will be the plaintiff, Mr Jones will be the defendant, and the case will be known as Smith v Jones. By another of those little quirks beloved of lawyers, if Mr Jones loses and decides to appeal, the case will become Jones v Smith. But do not worry about that. Just remember – plaintiff brings the action; defendant is the person targeted.

Now Case 1957 has multiple plaintiffs (which is allowed) led by the Secretary for Justice – which means the taxpayer is picking up the tab for this one. Also in action is the Commissioner of Police “(suing on his own behalf and on behalf of all other police officers and auxiliary police officers as defined in the Police Force Ordinance…)”.

This is an interesting innovation. Were all these police officers asked if they wished to be sued on behalf of, one wonders? No doubt it would take a brave officer to turn up in court and say that he did not wish to be served by the C of P in this way. But some police officers may wonder whether opening another front for contention with the general public is really a helpful move at this juncture.

More interesting still is the defendants, who are “Persons unlawfully disclosing and/or using the personal data of any police officer or auxiliary officer as defined in the Police Force Ordinance.”

And here, I fear, we see the ghost of Mr Justice Cocklecarrot rising from the tomb. Mr Cocklecarrot was a satirical figure who used to preside over amusing cases in the pages of the Daily Express. The cases were, I hope, fictitious.

If these people are unlawfully disclosing and using data, surely the answer to this problem is for the victims to call the “police officers and auxiliary officers as defined in the Police Force Ordinance” and have the perpetrators arrested and prosecuted.

If, on the other hand, the injunction is intended to apply to people who are not unlawfully using and disclosing data, why should a judge be invited to make something unlawful which is not unlawful, by supplying an injunction.

Clearly the procedure from here is going to be a problem. Usually if you apply for an injunction then the injunction is temporary while the writ is served on the defendant, who then has an opportunity to be heard before the injunction becomes permanent.

Here we have an unidentified defendant(s) with no address. Anyone who turns up claiming to be the defendant will presumably, since by doing so he admits to “unlawfully disclosing etc” be subject to arrest. So the plaintiff is going to have an easy time.

This is a pity, because the plaintiff is asking rather a lot. The main burden of the writ is a list of things it asks the court to ban, which goes like this:

“Injunction restraining defendants from using, publishing, communicating or disclosing to any other personal data of and concerning any Police Officer and/or their family, including their spouse and children, including but not limited to their name, job title, residential address, office address, school address, email address, date of birth, personal address, Hong Kong ID card number or identity number of any other official identity documents, Facebook account ID, Instagram Account ID, car plate number, and any photograph of the Police Officer(s) and/or their family members (including their spouse or children) without the consent of the Police Officer(s) and/or their family member(s) as the case may be concerned.”

The problem with this is that it contrasts rather unfavourably with the law on the matter, which is contained in the Data Protection (Privacy) Ordinance. This contains a similar level of protection, but limits it in a variety of ways where it might be held to conflict with other rights, like free speech and the right to draw attention to malpractices.

These limits are not reproduced in the sought injunction, which accordingly appears to provide for police officers a level of protection far exceeding that enjoyed by the population in general. Indeed it appears that our police people aspire to a level of secrecy that would have been the envy of the KGB.

Also missing is the principle established long ago in the Eastweek case, that taking a picture of someone in a public place, providing no other data is gathered at the same time, is not an act of data collection and does not require the subject’s permission.

Media organisations are left wondering about a variety of situations, starting from police press conferences (is permission to take pictures implied?) and running on to street protests, where it appears that if the officer is not displaying his number, as alas he often isn’t, then video is OK but if he is complying with the rules then it is perhaps not.

One might hope that these questions had occurred to the person in the Department of Justice (sic) who was in charge of this matter. On the other hand there is some evidence that he or she was not concentrating.

After the paragraph detailing the injunction sought we get two others of interest only to lawyers. And then we get one request which comes down to one word: “4. Costs.”

Normally this is a routine matter. In civil suits the loser pays the costs of both sides, subject to some supervision to restrain greed. But how is anyone, ever, going to extract costs from “Persons unlawfully disclosing and/or using the personal data of any police officer or auxiliary officer as defined in the Police Force Ordinance“? Good luck with that.

So here we are. The injunction is, for the time being, in effect. So it appears that it would be a violation simply to report that Mr Stephen Lo Wai-chung is the Commissioner of Police, even though this information is on a government website. So perhaps I should be on the safe side and warn you that Mr Lo may or may not be the Commissioner of Police.

And this brings us to a point which the relevant court seems to have overlooked. Civil servants are public employees exercising unusual powers on behalf of us all. Their rights to privacy must accordingly be somewhat less than those enjoyed by the rest of us. Someone who is entitled to carry and use lethal weapons on our behalf cannot claim that the way in which he carries out this duty should be immune to scrutiny.

I have no trouble with the idea of providing some extra protection to wives and children at a time when the police force is a controversial institution, but officers are exercising powers which cry out for supervision and publicity. Does the “identity number of any other official document” mean that we cannot report the number of a police person?

In the light of this it could be considered surprising that the temporary injunction was granted at all. True there was no opposition, but surely judges are expected to consider obvious possible objections off their own bat, as it were?

This brings us to a delicate question. Lawyers often complain about judges. They do not do this in public because, after all, their future careers depend on persuading judges to agree with them. So some thoughts remain unreported for a long time.

Here is one of them, which may or may not be relevant to this case. It is convenient in some ways for similar cases to be heard by the same judge. The law is a wide field and some measure of specialisation is helpful. Also the approach which is appropriate to, say, family matters may legitimately differ from the practice in other areas where the interests of the participants and their kids are less important than finding a legally defensible outcome.

However, if some small nook only attracts a small trickle of cases, you may finish up with them all being heard by the same single judge. He or she will, of course, try to approach each one with an open mind. But litigants and their lawyers will wonder if they got a fair hearing if the judgement in their case is rather similar to one in a case last month.

A judge may, having decided a matter one way, feel that he will be accused of inconsistency if he decides a superficially similar one in a different way. He may get in an intellectual rut.

Lawyers apparently are aware of the utility of having a judge who is familiar with the battlefield, as it were. But many of them prefer to have a “fresh judge” who has no commitment to any particular view in the area of law where the conflict will take place.

I am not going to name any names but it seems that cases in some rare categories always finish up before the same judge. No doubt he does his best. But this is not good for public confidence in the system.