4. While browsing the Internet, I discover that my photo has been posted on a local website without my consent. That photo, I believe, was secretly taken by someone while I was window-shopping in an arcade one week ago. Can I sue the relevant webmaster or the photographer under the Personal Data (Privacy) Ordinance?

4. While browsing the Internet, I discover that my photo has been posted on a local website without my consent. That photo, I believe, was secretly taken by someone while I was window-shopping in an arcade one week ago. Can I sue the relevant webmaster or the photographer under the Personal Data (Privacy) Ordinance?

The legal question to ask is whether the photograph taken amounts to "personal data". If that photograph is not personal data, then the Ordinance is not applicable in this case.

With reference to a Court of Appeal case in 2000 (Eastweek Publisher Limited and another v Privacy Commissioner for Personal Data), it was ruled that personal data can be collected by means of photographs. However, it does not mean that all photographs must necessarily be personal data. In order for personal data collection to existence, the data user must be compiling information about an identified person or about a person whom the data user intends or seeks to identify. In other words, taking a photo merely showing a person's visual image which was taken not for collecting data relating to him/her as an identified person (i.e. the person is only an "anonymous photographic subject") is normally not classified as personal data collection and DPPs are thus not engaged.

As elaborated in the judgment of the above case, the Ordinance only protects the privacy of individuals in relation to personal data. It is not intended to establish general privacy rights against all possible forms of intrusion into an individual's privacy sphere (a general right to be left alone).

In reply to the subject question, you cannot be protected under the Ordinance if in the circumstances, the photo was taken not for collecting data relating to you as an identified person.

Despite the above ruling, it is important to note that persons who publish photos with captions that contain personal data of the photo subjects (without their consent) may have violated the Ordinance. If such captions contain unjustified adverse comments on the photo subjects, the publishers may also have incurred civil liability for defamation. Furthermore, persons who take photos on such occasions (i.e. in a public place without the photo subject's consent) and cause any person to be reasonably concerned for his/her safety may have committed the offence of loitering (section 160 of the Crimes Ordinance), or may be charged with behaving in a disorderly manner in a public place.