G. Cabin Recording

G. Cabin Recording

 

Can a taxi driver use a car recorder to capture the dialogue with customers and publish the video clips, without the permission of the latter?

 

It depends on :-

 

• purpose of the publication;

 

• intention of the publication; and

 

• whether it is foreseeable that the publication would or would likely cause any specified harm to the customers. 

 

Video clips capturing the dialogue with customers are personal data under Section 2 of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Is it legal to collect personal data by means of a video recorder in a taxi?

 

Under Data Protection Principle 1(1) of the Personal Data (Privacy) Ordinance (Cap. 486),  personal data shall not be collected unless –

 

(a)   the data is collected for a lawful purpose directly related to a function or activity of the data user who is to use the data;

 

(b)   subject to paragraph (c), the collection of the data is necessary for or directly related to that purpose; and

 

(c)   the data is adequate but not excessive in relation to that purpose.

 

Lawful Purpose

 

A ‘lawful’ purpose is one that does not contravene a statutory provision or a relevant common law principle: see R v R [1991] 4 All ER 481 (HL). Video-recording of staff at the employer’s premises by the employer for monitoring of staff is ‘a lawful purpose’: see Re Chan Hui May Kiu [2014] HKCU 438 (unreported, CACV 4/2013, 21 February 2014) (CA).

 

Thus, if the collection of personal data is for a lawful purpose, for example, for prevention or detection of crime, the collection per se is for a lawful purpose and therefore is lawful.

 

However, if the collection of personal data is for a purpose which contravenes a statutory provision or a relevant common law principle, then the purpose and therefore the collection may not be lawful.

 

Article 30 of the Basic Law provides that :-

 

“The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.”

 

Article 14(1) of the Hong Kong Bill of Rights provides that :-

 

“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

 

Thus, if the purpose of collection by the taxi driver is arbitrary or unrelated to the prevention or detection of crime, or for a pure entertainment purpose, the collection would invade the freedom and privacy of communication and would be an arbitrary or unlawful interference with the customers’ privacy.

 

Thus, whether the collection is justified or lawful depends on the purpose of the collection.

 

Is it legal to publish the personal data captured by a video recorder in a taxi?

 

Under Data Protection Principle 3(1) of the Personal Data (Privacy) Ordinance (Cap. 486), personal data shall not, without the prescribed consent of the data subject, be used for a new purpose.

 

Prescribed Consent

 

Under Section 2(1) of the Personal Data (Privacy) Ordinance (Cap. 486), prescribed consent :-

 

(a)   means the express consent of the person given voluntarily;

 

(b)   does not include any consent which has been withdrawn by notice in writing served on the person to whom the consent has been given (but without prejudice to so much of that act that has been done pursuant to the consent at any time before the notice is so served).

 

New Purpose

 

Thus, it may not be legal to publish the personal data without the prescribed consent of the customers if the publication itself constitutes a new purpose.

 

The original purpose of capturing the dialogue with customers may be to detect crime, provide proof for civil action etc.. Thus, it is reasonably expected that the personal data would be used only for the purpose of defection of crime etc., such as submitting the person data to police or to a lawyer.

 

In the premises, since publication of the personal data goes beyond the ambit of original purpose and has constituted a new purpose, the prescribed consent of the customers is required.

 

In the absence of a prescribed consent, any publication would contravene Data Protection Principle 3(1) of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Are there any lawful purposes of capturing dialogues with taxi customers? Can the purposes listed in Section 58(1)(a)(d)(e) apply in this context?

 

A lawful purpose is one that does not contravene a statutory provision or a relevant common law principle: see R v R [1991] 4 All ER 481 (HL).

 

The purposes listed in Section 58(1)(a)(d)(e) of the Personal Data (Privacy) Ordinance (Cap. 486) are :-

 

• the prevention or detection of crime;

 

• the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons;

 

• the prevention or preclusion of significant financial loss arising from—

 

• any imprudent business practices or activities of persons;

 

or

 

• unlawful or seriously improper conduct, or dishonesty or malpractice, by persons.

 

Section 58(1)(a)(d)(e) does not directly apply to Data Protection Principle 1, as Section 58 of the Personal Data (Privacy) Ordinance (Cap. 486) is concerned with the exemption of application of Data Protection Principle 3 and 6 under certain conditions: see Section 58(1) and (3) of the Personal Data (Privacy) Ordinance (Cap. 486). However, Section 58(1)(a)(d)(e) of the Personal Data (Privacy) Ordinance (Cap. 486) are still lawful purposes of capturing dialogues with taxi customers under Data Protection Principle 1.

 

What is the proper manner of collecting such personal data? Is a notice needed to explicitly inform the customer of such data collection?

 

Under Data Protection Principle 1(2) of the Personal Data (Privacy) Ordinance (Cap. 486), personal data shall be collected by means which are—

 

(a)   lawful; and

 

(b)   fair in the circumstances of the case.

 

Thus, the personal data must be collected by lawful means.

 

The following circumstances may be unfair :-

 

(1)   Misrepresenting matters to the data subject, be it identity of the data collector, the purposes for which the data will be used or the consequences of not providing the data;

 

(2)   Applying undue pressure on the data subject.

 

Thus, it would be fair in the circumstances for taxi driver to notify customers orally or in writing, that his or her communication is recorded.

 

Obligation of notification

 

Under Data Protection Principle 1(3) of the Personal Data (Privacy) Ordinance (Cap. 486), where the person from whom personal data is or is to be collected is the data subject, all practicable steps shall be taken to ensure that—

 

• he is explicitly or implicitly informed, on or before collecting the data, of—

 

• whether it is obligatory or voluntary for him to supply the data; and

 

• where it is obligatory for him to supply the data, the consequences for him if he fails to supply the data; and

 

• he is explicitly informed—

 

• on or before collecting the data, of—

 

• the purpose (in general or specific terms) for which the data is to be used; and

 

• the classes of persons to whom the data may be transferred; and

 

• on or before first use of the data for the purpose for which it was collected, of—

 

• his rights to request access to and to request the correction of the data; and

 

• the name or job title, and address, of the individual who is to handle any such request made to the data user,

 

unless to comply with the provisions of this subsection would be likely to prejudice the purpose for which the data was collected and that purpose is specified in Part 8 of the Personal Data (Privacy) Ordinance (Cap. 486) as a purpose in relation to which personal data is exempt from the provisions of Data Protection Principle 6 of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Thus, under Data Protection Principle 1(3) of the Personal Data (Privacy) Ordinance (Cap. 486), a data user shall take all practicable steps to notify the data subject the purpose of collection of the personal data, unless to comply with this requirement would be likely to prejudice the purpose for which the data was collected.

 

A notice explicitly informing passengers of the collection of personal data is practicable. Thus, it is submitted that a taxi driver shall notify the customers of such data collection.

 

According to Privacy Commissioner Responses to Media Enquiry on the Issue of Installation of Photographic and Audio Equipment in Taxis dated 19 September 2016 at paragraph 6 (English Translation):-

 

“6. When deciding to perform recording, [the owner of taxi / driver of taxi shall consider the reasonableness of the surveillance, inform the person being affected (including the passenger) about the surveillance activity, and properly handle the method of surveillance record. The Privacy Commissioner for Personal Data suggested the relevant industry or taxi’s driver to :-

 

To display a poster containing relevant information (e.g. stating that the passenger’s activities inside the taxi compartment would be monitored, the purpose of installation of surveillance system, the information relating to the contact details of the person operating the surveillance system and the person responsible for handling private information or problems) at a conspicuous position, such as the window at the back passenger row, the back of front passenger’s seat or at the position of the camera, and that the content of the poster shall be clear and easy to understand, in order to have the effect of reminder and to avoid unnecessary dispute. On the other hand, as a good course of conduct, the relevant taxi driver shall, at the time when the passenger boarded the taxi, orally informed the passenger that there is a surveillance system inside the compartment of taxi, and to give passenger autonomous and well-formed choice, to let the passenger to decide whether to board on that taxi or not.

 

The area of surveillance should be limited to the located and time needed, and it shall be good that the number of cameras be enough and to ensure the monitoring of relevant person be reduced.

 

Be careful in possessing and handling surveillance record (prescribe information’s retained period, and to account for who have actually checked the video recording.”

 

While the Privacy Commissioner for Personal Data only “suggested” taxi driver to display poster containing relevant information of data collection at a conspicuous position, it is submitted that under Data Protection Principle 1(3), a taxi driver shall take all practicable steps to inform the data subject of the purpose of data collection. Such obligation may be statutory.

 

After capturing the video clips, how should the taxi drivers manage the data to ensure that they will not contravene Principles 2 and 4?

 

Under Data Protection Principle 2 of the Personal Data (Privacy) Ordinance (Cap. 486) :-

 

(1)   All practicable steps shall be taken to ensure that—

 

(a)   personal data is accurate having regard to the purpose (including any directly related purpose) for which the personal data is or is to be used;

 

(b)   where there are reasonable grounds for believing that personal data is inaccurate having regard to the purpose (including any directly related purpose) for which the data is or is to be used— 

 

(i)              the data is not used for that purpose unless and until those grounds cease to be applicable to the data, whether by the rectification of the data or otherwise; or

 

(ii)            the data is erased;

 

(c)   where it is practicable in all the circumstances of the case to know that—

 

(i)              personal data disclosed on or after the appointed day to a third party is materially inaccurate having regard to the purpose (including any directly related purpose) for which the data is or is to be used by the third party; and

 

(ii)            that data was inaccurate at the time of such disclosure,

 

that the third party—

 

(A)  is informed that the data is inaccurate; and

 

(B)  is provided with such particulars as will enable the third party to rectify the data having regard to that purpose.

 

(2)   All practicable steps must be taken to ensure that personal data is not kept longer than is necessary for the fulfilment of the purpose (including any directly related purpose) for which the data is or is to be used.

 

(3)   Without limiting subsection (2), if a data user engages a data processor, whether within or outside Hong Kong, to process personal data on the data user’s behalf, the data user must adopt contractual or other means to prevent any personal data transferred to the data processor from being kept longer than is necessary for processing of the data.

 

(4)   In subsection (3)—

 

data processor (資料處理者) means a person who—

 

(a)   processes personal data on behalf of another person; and

 

(b)   does not process the data for any of the person’s own purposes.

 

Under Data Protection Principle 4 of the Personal Data (Privacy) Ordinance (Cap. 486) :-

 

(1)   All practicable steps shall be taken to ensure that any personal data (including data in a form in which access to or processing of the data is not practicable) held by a data user is protected against unauthorized or accidental access, processing, erasure, loss or use having particular regard to—

 

(a)   the kind of data and the harm that could result if any of those things should occur;

 

(b)   the physical location where the data is stored;

 

(c)   any security measures incorporated (whether by automated means or otherwise) into any equipment in which the data is stored;

 

(d)   any measures taken for ensuring the integrity, prudence and competence of persons having access to the data; and

 

(e)   any measures taken for ensuring the secure transmission of the data.

 

(2)   Without limiting Data Protection Principle 4(1), if a data user engages a data processor, whether within or outside Hong Kong, to process personal data on the data user’s behalf, the data user must adopt contractual or other means to prevent unauthorized or accidental access, processing, erasure, loss or use of the data transferred to the data processor for processing.

 

A contravention of Data Protection Principles of the Personal Data (Privacy) Ordinance (Cap. 486) would not automatically trigger criminal liability or prosecution. An individual or a relevant person on behalf of an individual may make a complaint to the Privacy Commissioner for Personal Data about an act or practice in contravention of the Data Protection Principles: see Section 37 of the Personal Data (Privacy) Ordinance (Cap. 486).

 

The Privacy Commissioner for Personal Data may carry out investigation under Section 38 of Personal Data (Privacy) Ordinance (Cap. 486).

 

If, following the completion of an investigation, the Privacy Commissioner for Personal Data is of the opinion that the relevant data user is contravening or has contravened a requirement under this Ordinance, the Privacy Commissioner for Personal Data may serve on the data user a notice in writing, directing the data user to remedy and, if appropriate, prevent any recurrence of the contravention: see Section 50 of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Under Section 50A of the Personal Data (Privacy) Ordinance (Cap. 486), a data user who contravenes an enforcement notice commits an offence and is liable—

 

• on a first conviction—

 

• to a fine at $50,000 and to imprisonment for 2 years; and

 

• if the offence continues after the conviction, to a daily penalty of $1,000; and

 

• on a second or subsequent conviction—

 

• to a fine at $100,000 and to imprisonment for 2 years; and

 

• if the offence continues after the conviction, to a daily penalty of $2,000.

 

Exemptions:

 

The Personal Data (Privacy) Ordinance (Cap. 486) provides certain exemptions from the provisions of Data Protection Principle 3 of Personal Data (Privacy) Ordinance (Cap. 486). Examples include:

 

• The use of the data is for purposes of preventing or detecting crimes, etc., as specified in Section 58(1) of the Personal Data (Privacy) Ordinance (Cap. 486) (whether or not the data is held for any of those purposes), and the application of the Data Protection Principle 3 of the Personal Data (Privacy) Ordinance (Cap. 486) to the data would be likely to undermine those purposes, see Section 58(2) of Personal Data (Privacy) Ordinance (Cap. 486);

 

• The personal data is related to the physical or mental health, the identity or the location of a data subject, and the application of the Data Protection Principle 3 of the Personal Data (Privacy) Ordinance (Cap. 486) to the data would be likely to cause serious harm to the physical and mental health of the data subject and any other persons, see Section 59 of the Personal Data (Privacy) Ordinance (Cap. 486);

 

• The personal data is required or authorized by court order or legal proceeding, or for establishing, exercising or defending legal rights in Hong Kong, see Section 60B of the Personal Data (Privacy) Ordinance (Cap. 486);

 

• The personal data is disclosed to news organizations by a person who reasonably believes that the publishing or broadcasting of the data is in the public interest, see Section 61(2) of the Personal Data (Privacy) Ordinance (Cap. 486);

 

• In emergency situations, the application of Data Protection Principle 3 would be likely to impair the carrying out of emergency rescue operations or provision of emergency relief services, see Section 63C of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Using personal data with an intent or effect to cause specified harm to the data subject

 

Under Section 64(3A) of the Personal Data (Privacy) Ordinance (Cap. 486), a person commits an offence if the person discloses any personal data of a data subject without the relevant consent of the data subject—

 

• with an intent to cause any specified harm to the data subject or any family member of the data subject; or

 

• being reckless as to whether any specified harm would be, or would likely be, caused to the data subject or any family member of the data subject.

 

A person who commits an offence under Section 64(3A) of the Personal Data (Privacy) Ordinance (Cap. 486) is liable on conviction to a fine at $100,000 and to imprisonment for 2 years.

 

If the disclosure causes any specified harm to the data subject or any family member of the data subject, the person commits an offence under Section 64(3C) of the Personal Data (Privacy) Ordinance (Cap. 486) and is liable on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years.

 

Specified harm (指明傷害), in relation to a person, means—

 

• harassment, molestation, pestering, threat or intimidation to the person;

 

• bodily harm or psychological harm to the person;

 

• harm causing the person reasonably to be concerned for the person’s safety or well-being; or

 

• damage to the property of the person.

 

Defences:

 

In any proceedings for an offence under Section 64(3A) or 64(3C) of the Personal Data (Privacy) Ordinance (Cap. 486), it is a defence for the person charged to establish that—

 

• the person reasonably believed that the disclosure was necessary for the purpose of preventing or detecting crime;

 

• the disclosure was required or authorized by or under any enactment, by any rule of law or by an order of a court;

 

• the person reasonably believed that the disclosure was made with the consent of the data subject; or

 

• the person disclosed the personal data solely for a purpose of a lawful news activity and had reasonable grounds to believe that the publishing or broadcasting of the personal data was in the public interest.

 

Thus, a taxi driver cannot publish video clips from a car recorder capturing the dialogue with customers, without the permission of the latter, if :-

 

(1)   the publication constitutes a new purpose and there is no applicable statutory exemptions;

 

(2)   the publication is with an intent or effect to cause specified harm to the data subject or is reckless as to whether such harm would be caused, without any defence listed above.