Commercial Speech, Privacy, Data Protection and Retention
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Closed Contracts Expression
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The High Court of Hong Kong granted an interlocutory injunction against the publication of material concerning a businessman and his family which had been gathered during an interview. The interview had been conducted for the purposes of a university journalism project, but the interviewer then used the material for a separate article and uploaded the project’s video on to YouTube. Objecting to the online publication, the businessman approached the Court for injunctive relief and for an interlocutory injunction. The Court granted the interlocutory injunction, finding that it was “seriously arguable” that the information obtained was confidential in nature, that a duty of confidence existed between the interviewer and the businessman, and that the consent for publishing the information was limited to the graduation project.
During 2010, Lorea Solabarrieta Cheung (Solabarrieta), a student in the Master of Journalism class at the University of Hong Kong, interviewed a businessman, Chor Ki Kwong David (Chor), and his wife, son and domestic helper on camera. Solabarietta was the daughter of an old school friend of Chor’s and had worked as a television presenter and journalist before enrolling for a master’s degree in journalism. The interviews were done inside and outside Chor’s residence and at social gatherings at other locations, and the information contained in the recordings included the details of Chor’s family life, family relationships, finance and lifestyle and personal photographs of the family.
Solabarrieta used the interviews to create her graduation project – a video screened at the University in May 2010. She also used the information gathered from the interviews and a family photograph in an article she wrote on golf courses in Hong Kong. Later in 2010, Solabarrieta – through her production company, FreedomLab TV – published the article online and uploaded the video to YouTube.
In August 2012, Chor and his family became aware that the video and article were publicly available online. Chor’s wife told Solabarrieta and her mother that the family had agreed to the interviews to help with Solabarrieta’s university project but had not consented to the information’s publication on the internet. In September 2012, legal representatives for the Chor couple sent a letter of demand to Solabarrieta, requesting that the video be removed from YouTube. Solabarrieta responded, saying that she could not personally take down the video and she would have to wait until FreedomLab TV’s web controller returned a fortnight later.
In October 2012, Chor approached the High Court in respect of the publication of the interview material, and sought an interlocutory injunction against publication of the interview material while the matter was being heard. On October 19, 2012, the Court granted an interim injunction, and on February 6, 2013 the Court heard the interlocutory injunction application and delivered its order. The Court provided its reasons for the decision on February 19, 2013.
Deputy High Court Judge Simon Leung delivered the judgment of the Court. The central issue for the Court’s determination was whether Solabarrieta should be prevented from publishing the information gained during the interviews with Chor’s family pending the finalization of the matter.
Chor had requested that the hearing not be open to the public and Solabarrieta had opposed this. Chor argued that the Court should close the proceedings, as permitted by Article 10 of the Hong Kong Bill of Rights Ordinance, Cap 383. Article 10 protects the right to a fair and public hearing but allows for the press and public to be excluded from a trial “(i) for reasons of morals, public order or national security in a democratic society, or (ii) when the interest of the private lives of the parties so requires”. Chor submitted that the press had been interested in the first hearing which had led to the interim injunction, and that as his and his family’s lives would be exposed to the public, “the very purpose of the injunction, even if granted, would be rendered pointless, if the publicity of this hearing continued” [para. 15].
The Court held that the hearing should remain open to the public as there were no special circumstances present (in terms of Article 10) that would justify closing the proceedings. The Court noted that it was the publication of Solabarrieta’s video and not the court proceedings that had exposed Chor and his family’s private lives, and so the only action that would ameliorate Chor’s situation would be for the video to be removed.
The Court set out the requirements for an interlocutory injunction under Hong Kong law: that the claim raises a serious question to be tried; that damages would not be an adequate remedy if the plaintiff succeeds at the end; and whether the balance of convenience favours the granting of the interlocutory injunction. The Court also referred to the U.K. case of Coco v A H Clark (Engineers)  RPC 41 and the Hong Kong case Li Yau Wai Eric v. Genesis Films Ltd  KHLR 711 which had established the requirements for a case involving a breach of confidence – the issue at hand in the present case. These requirements are that the plaintiff must demonstrate that the information at issue was (1) confidential in nature; (2) imparted by the plaintiff to the defendant in circumstances importing an obligation of confidence; and (3) its use and publication by the defendant was unauthorized.
In examining whether family and personal matters can be confidential in nature, the Court referred to the U.K. case of Barrymore v. News Group Newspapers Ltd  FSR 600, and observed that the context in which and the purpose for which the information was given is relevant. The Court described the information in the video and article as “matters personal and private to the Chor couple and family [and included] moments of expressions of feeling and emotion about the family relationship” [para. 22]. The Court dismissed Solabarrieta’s argument that she could publish the information because Chor and his family had given the information to her willingly: the Court stressed that the questions remain whether the information was “provided in circumstances where one would expect confidentiality to be respected” and if it was “only supposed to be used for specific purposes” [para. 23].
Solabarrieta had argued that Chor had himself sought publicity which had been established as an exception in the Genesis Films and Woodward v Hutchins  1 WLR 760 cases. However, the Court held that the circumstances – that Solabarrieta had approached the Chor couple for the interview and that Chor had explicitly asked Solabarreita to not quote him and his wife in the article – demonstrated that Chor had not sought publicity.
The Court examined whether Chor and his family had given consent for the information from the interviews to be used in material beyond Solabarrieta’s graduation project. Chor and Solabarrieta had not signed a formal consent form or contract, but the Court noted that throughout the interviews it was suggested that the project was merely a university one and that the team that assisted Solabarrieta during the interview had not endorsed the publication of the interview information on the internet. The Court again noted that Chor had explicitly asked not to be quoted in the article.
The focus of the discussion on whether there was a duty of confidence was on Solabarrieta’s argument that Chor was not the correct plaintiff to have brought the case. Solabarrieta argued that she had liaised with Chor’s wife to set up the interview “with a view to her being the star of the interview” and that Chor had requested that he also be interviewed [para. 32]. However, the Court held that it was irrelevant who had initially interacted with Solabarrieta as “the duty of confidence does not arise merely between the parties in actual liaison as if it were a matter of contract” and so “whether Chor’s wife should also be made a plaintiff does not affect Chor’s capacity to sue” [para. 34].
In determining whether the requirements for the injunction had been met, the Court held that it was “seriously arguable” as to whether the information from the interviews was confidential in nature, whether the duty of confidence existed and whether the Chor’s consent for the interviews was limited to their use for Solabarrieta’s university project [para 31].
Solabarrieta argued that it was not sufficient for Chor to demonstrate that there were serious questions to be tried as he had to demonstrate that there was a real prospect of success at the trial, which necessitates a higher standard of proof. Solabarrieta had argued that this was because Chor’s application concerned a mandatory and not prohibitory injunction, but the Court held that it was not the nature of the injunction that was relevant to the standard of proof but rather whether the effect of the injunction is final or not. In the present case, because the injunction would just prevent publication of the interview information until the matter was settled, it would not have irreversible consequences and so there was no concern about finality. As a result, Chor merely had to demonstrate that the questions raised were seriously arguable.
The Court held that, even though Chor had only filed the injunction application two years after the video and article were published, there was no unexplained delay which would prevent the application for the injunctive relief. This was because the Chors had explained that the family only became aware of the video and content of the article in 2012 and the Court noted that whether this was truly the case was a factual dispute (to be settled at the main hearing) but that it was not “inherently improbable” [para. 42].
The Court rejected Solabarrieta’s argument that “the injunction lacks specificity in the confidential information and hence [was] too wide and vague” [para 48]. The Court held Chor’s identification of the information and materials as “those provided by and obtained from the Chor family in relation to and during the series of interviews conducted by Solabarrieta with Chor and his family during a specified period” and the description of the video and article were “precisely identified” [para. 51].
In determining the balance of convenience and risk of injustice, the Court evaluated the damages which would be suffered by the parties if the interlocutory injunction were granted or denied. If denied, Chor and his family could suffer damage “in the form of embarrassment, anxiety and annoyance; and this would be because of their private and family affairs being exposed to an extent substantially beyond what was agreed upon or expected” [para. 53]. The Court referred to the U.K. case of Douglas v. Hello! Ltd (No 3)  QB 125 and noted that the fact that the information had been published two years before “would not render an injunction academic” because the information was still publicly accessible [para. 54]. It added that “[e]very hit, be it fresh or repetitive, counts” [para. 54]. The Court dismissed Solabrietta’s argument that the interlocutory injunction had “tarnished her reputation” and noted that it would only be at the conclusion of the main trial, and only if that trial cleared her of the allegations, that Solabarrieta’s reputation would be restored [para. 55]. In addition, the Court dismissed her argument that she needed the continued publication of the video to develop her business, and noted that the video had been publicly available for two years without it having a beneficial effect on her business. The Court also stressed that any loss of business could be quantified in a damages award at the end of the main trial. Accordingly the Court held that the balance of convenience and injustice “tilted in favour of granting the interlocutory injunction” [para. 57].
The Court ordered that Solabarrieta be restrained from disclosing information and photographs of Chor and his family which she obtained during the interviews, and that she remove the video and article from the respective websites within twenty-four hours of the order.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In granting the interlocutory injunction, the High Court restricted the use of information gathered by a journalist to only the purpose for which the information was specifically sought. The Court held that it was arguable that consent had to be given for all purposes for which the information can be used and that there was a duty of confidence established between the interviewer and interviewee.
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