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Who is watching over you?

Most legal queries regarding real estate typically focus on the buying and selling process, or on issues of ownership or leasing. But one aspect that should not be underestimated is home privacy, as Boase Cohen & Collins Partner Alex Liu explains.

Hong Kong, 19 November 2019: In a crowded city such as Hong Kong, where the majority of residents live in apartment blocks that are built in close proximity to each other, home privacy can be an issue. People can see through your windows, the security guards know all about your visitors. Many aspects of your life and living circumstances are laid bare for others to see.

Hong Kong does not have a comprehensive privacy protection ordinance, but individuals who feel their personal privacy is being compromised do have legal recourse either through the courts or, in certain matters, by complaining to the Office of the Privacy Commissioner for Personal Data. In this regard, the Personal Data (Privacy) Ordinance protects the privacy interests of individuals by governing the collection and retention of data from which it is possible to ascertain a person’s identity.

For example, one area of concern for property owners and occupiers is the use of closed circuit television (CCTV) in public areas of housing estates such as clubhouses, play areas and gardens. If the CCTV is used only for monitoring, it does not constitute any collection of personal information but, if the system includes video recording, it must comply with data protection regulations.

On this point, the method of collection needs to be legal and fair, with the purpose being consistent with its use; that is, data cannot be collected for one purpose while it is used for another. Besides, it is necessary to properly protect the relevant information from abuse.

Another common cause for complaint is when visitors to housing estates are required to register with security guards. Apart from being asked their name, they are sometimes compelled to give their mobile phone number and even ID card number. Does this violate the Personal Data (Privacy) Ordinance?

In 2016, the Office of the Privacy Commissioner for Personal Data amended its “Code of Practice on ID Card Numbers and Other Identity Codes”, thus allowing housing estate management companies to record the ID card numbers of visitors. However, the code also stipulates that if the same effect can be achieved in other ways that do not infringe upon the privacy of individuals, then these other methods should be used instead. Thus, it would appear that records can be made but, if the identity of visitors can be verified, for example, by those they are visiting, then there is no need to record ID card numbers.

As well, management companies should be cautious in dealing with any personal data they collect. No one should be allowed to check or deal with the information without permission. Further, once the purpose for which the collection of data has been served, the data should be deleted as soon as possible.

With constant innovations in technology, privacy issues become more complicated. A case in point is the increasing use of drones. At present, there is no relevant legislation in Hong Kong to govern aerial recording and related activities but, in 2017, the Office of the Privacy Commissioner for Personal Data revised and issued “Guidance on CCTV Surveillance and Use of Drones” which, for the first time, provided guidelines for the use of aerial cameras.

If an aerial camera operated by someone in a private unit takes photos or videos of another person or persons, this could be regarded as unfair collection of personal data. If the camera operator is in a public place and causing other people to be worried about their personal safety, the operator could be charged with outraging public decency. In addition, such a person may violate the Control of Obscene and Indecent Articles Ordinance or commit the offence of loitering.

However, identifying a drone operator and establishing that the drone was equipped with a camera and was taking pictures is extremely difficult. Even if this is done and the aggrieved individual wishes to lodge a complaint with the Office of the Privacy Commissioner for Personal Data, he or she needs to prove that the drone operator was taking photos for a purpose and in a targeted way. Otherwise, it does not count as collection of personal data.

Amid all of this, it should be pointed out that doing something in the confines of your own home does not give you automatic protection and, in certain circumstances, you may even be breaking the law.

For example, under section 148 of the Crimes Ordinance (Cap. 200), it is an offence for a person, without lawful authority or excuse, to indecently expose of any part of their body “in any public place or in view of the public”. So, if you are naked in your own home, you may commit an indecent exposure offence if your neighbour sees you through a window or door. What kind of private place can be defined as “visible to the public”? It could be an apartment that is on a lower floor of a block, or one that has a private terrace or roof. It might be a hotel room.

It should be stressed that the law is aimed at those who deliberately commit the offence. Such behaviour is liable, in the event of conviction, to a maximum penalty of HK$1,000 and six months’ imprisonment. Meanwhile, if the individual’s indecent conduct is photographed or videotaped by others, they do not have the right to complain to the authorities about privacy invasion.

As I have often stressed in this column, if in doubt over any aspect of property ownership, management, leasing or living circumstances – including questions of privacy – it is best to consult an experienced lawyer.

Alex Liu was Chairman of the Appeal Tribunal Panel (Buildings Ordinance) for nine years until 2018 and has considerable experience in dealing with property ownership and building management issues. The above article is based on advice he has offered during regular appearances in the TVB documentary series A Property a Day.