Plans to give HK’s privacy watchdog some teeth in battle against doxxing receive cautious welcome from legal experts

21-Jan-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

Hong Kong’s legal experts have given a cautious welcome to plans to give the city’s privacy watchdog the power to launch criminal investigations into doxxing, but warned against going too far and stifling debate online.

Authorities are considering giving the Privacy Commissioner for Personal Data the power to conduct investigations, launch prosecutions and remove certain social media posts, a move legal experts said could curb the rise of doxxing during the ongoing anti-government protests.

With nearly 5,000 doxxing cases during Hong Kong unrest, new powers mulled

On the eve of the release of the annual report by the privacy commissioner on Tuesday, the Post spoke to legal experts on the challenges that lie ahead in tackling the malicious online practice.

However, lawyers and scholars warned against swinging the pendulum too far and called for safeguards to be put in place to allow fair criticism and scrutiny of public officials.

The proposed shake-up of the city’s privacy laws came as officials revealed the watchdog received more than 4,700 complaints over doxxing since the social unrest began in June.

Sparked by the now-withdrawn extradition bill, the more than seven months of demonstrations have since morphed into a wider protest movement, centring on calls for democratic reforms and police accountability.

Fierce clashes between protesters and police have often broken out in the form of pitched street battles, with petrol bombs thrown and police weapons deployed, but have also come in a war of words, and “weaponised” use of personal information.

Social media channel used for doxxing police suspended after court order

Police have borne the brunt of doxxing, with more than 1,500, or about 36 per cent of all complaint cases, related to the disclosure of personal information of officers and their family members, such as phone numbers, addresses and photos.

About 10 per cent of complaints concerned leaking of private data of those who had made anti-government or anti-police remarks online.

The force also came under fire last month when an officer displayed Stand News reporter Ronson Chan’s identification card in front of a live-streaming camera with 10,000 online viewers during a heated interaction. The action prompted a stinging rebuke and a promise by the Privacy Commissioner to launch a “proactive investigation” into the case.

At the moment, the Personal Data (Privacy) Ordinance sets out two major doxxing offences. Non-compliance with an enforcement order issued by the Privacy Commissioner to rectify misuse of personal data could to a maximum fine of HK$50,000, and two years in jail.

Lam calls doxxing a threat to society after personal details appear online

Secondly, the disclosure of private information that causes psychological harm to the victim is an offence punishable by a maximum fine of HK$1 million, and five years behind bars.

But the watchdog has long been criticised as a “toothless tiger” for lacking powers to investigate and prosecute offenders. As of January 10, the watchdog had referred 1,402 potentially criminal doxxing cases to the police, which carried out eight arrests last year.

The major overhaul to give those powers to the commissioner was broadly welcomed by the legal community. Barrister Craig Choy, who specialises in privacy law, said a distinct law enforcer focusing all its resources and expertise on fighting doxxing would be more effective.

“Right now, people have suspicions that the police will not be even-handed between the doxxing cases of police and protesters. So the reform can restore people’s faith in the system, when justice is not only done, but also seen to be done,” Choy said.

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Professor Stuart Hargreaves, a privacy law expert at Chinese University, also welcomed the reforms, but suggested they go further, loosening the legal threshold to “an intent to cause psychological harm or to create fear”, rather than having to show actual psychological harm.

Another key plank of the multipronged proposal is to empower the commissioner to take down doxxing content from social media platforms, and require platforms to hand over names and IP addresses of the doxxers.

Choy said this should only be done with a court warrant to allow judicial oversight in line with other criminal statutes, and feared a “chilling effect” on online debate.

“A public official in the course of the execution of duties should not have a high expectation of privacy, as a photo of him misbehaving or abusing his powers may be conducive to scrutiny and online discussions of public issues,” he said.

Hargreaves agreed a delicate balance must be struck. “It would be a problem, for instance, if anti-doxxing laws were used to punish individuals who revealed the information about the secretary of justice’s illegal structures.

“But if a law can be tailored so that it only catches genuinely harmful doxxing behaviour, then in principle it is something to support.”

The watchdog also proposed a new power to give legal help to doxxing victims to get an interim court injunction to limit harm done to them.

Court grants interim injunction to ban doxxing of police officers

Principal lecturer Eric Cheung Tat-ming, from the University of Hong Kong’s faculty of law, said while the civil remedy would need less time to remove doxxing posts and deter reposting than criminal investigations, court injunctions would pose problems too.

He cited the recent injunction obtained by the Junior Police Officers’ Association that banned unauthorised disclosure of officers and their family members’ information.

“Interim injunctions are applications made by one party that do not involve counterarguments made by defendants,” he said. “They also allow judges to make big legal changes and therefore skip normal scrutiny by lawmakers.”

The privacy commissioner, Stephen Wong Kai-yi, said he had told the government in June last year that the ordinance should be reformed to vest “comprehensive criminal investigation and prosecution powers” in him.


Category: Hong Kong

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