Privacy rights vs freedom of information: Which comes first?

November 05, 2015 12:03
As a HKU spat widens, we may finally get a robust debate on issues related to individual privacy and the public's right to know. Photo: HKEJ

Gagging the media is a bit like pulling the pin out of a grenade: a decisive salvo, possibly quite gratifying at the time, which inevitably results in colossal carnage.

As strategies go, it is not for the fainthearted. In the HKU case, by seeking an injunction over the leak of a voice recording from the Council meeting on Johannes Chan, a controversy over academic freedom has now snowballed into a furor over privacy versus the public interest. If the aim was to trigger even more debate, it succeeded.

As the campus rumpus with a Snowden twist continues to unravel, it can be hoped that the spotlight also covers two otherwise neglected areas: the lack of protection for whistleblowers in Hong Kong and the imbalance between privacy and freedom of information in the city.

Any underdog inspired by the acts of the whistleblowers in this battle should be aware that they are very much on their own. There is no law to protect them.

The City University of Hong Kong this week hit the headlines for its handling of an academic who claimed to blow the whistle on the deliberate lowering of student grades.

City U denies the allegations by Cody Glenn Fuston, an American writer who claimed he complained when the institution deliberately altered grades to gain a better rank among global universities. Fuston was fired.

A whistleblower over at the MTR, meanwhile, claimed this week that the rail operator downplayed a crack on the line.

Over at the stock exchange, it is often an anonymous letter from a whistleblower that triggers an investigation into questionable accounts or deals among Hong Kong’s listed companies.

Like them or loathe them, people who stick their necks out to blow the lid on fraud, malpractice and other wrongdoing should be able to do so without being ostracized, retaliated against or sacked.

The closest thing Hong Kong has is a recommended best practice as part of the Corporate Governance Code that Hong Kong Exchanges and Clearing (HKEx) expects companies to follow. Unfortunately not all of them do.

The Employment Ordinance also states that you can’t be dismissed for giving evidence or information in proceedings or an inquiry related to employment law, accidents at work or a breach of safety legislation. But it is far from an all-encompassing whistleblower law as proposed by legislative councilor Cyd Ho Sau-lan in 2013, but not passed.

Journalists are always happy to receive an anonymous letter or documents which reveal shenanigans at a company or public body. But for the sender, it may just be a matter of time before his bosses work out where the leak came from, and his days are numbered.

In the freedom of information vs privacy corner, the bias in law is toward protecting the individual. We have a law to protect our privacy. There is nothing on the statute books to protect the freedom of information in Hong Kong, otherwise known as the right to know.

There is a Code on Access to Information, which has come under a barrage of criticism over the years for its myriad loopholes, patchwork adoption by statutory bodies and general inefficiency. But it has survived – and efforts to replace it with a law have as yet failed to materialize.

It leaves Hong Kong with a distinct imbalance. Privacy rights should be weighed up against the public’s right to know. Freedom of information requests should be the rule, rather than an administrative irritant.

And at the end of the day, there should be parameters as to what information trumps privacy and qualifies as being in the public interest. As the HKU controversy widens, we may at least finally get a robust debate.

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EJ Insight contributor