An Evolving Landscape: How Recent Developments are Reshaping Harassment Law on Multiple Fronts
In the area of harassment law, both statutes and the common law have undergone exponential change in recent times. This has resulted in a larger array of intersecting options for victims to respond to perpetrators of harassment. Context is key when it comes to selecting the most effective counter-measure.
Isabel Tam and Jason Ko examines the said intersecting options in the evolving legal landscape, including the key developments in combatting criminal doxxing, the relevant civil torts, and statutory relief against domestic violence.
Anti-Doxxing: key takeaways from the new regime
Harassment may take the guise of incessant calls or emails with threats to humiliate the victim, and increasingly, harassment appears in the form of online trolling through social media, with recent legislative developments seeking to address this phenomenon.
In response to the upsurge of doxxing activities in which personal data is dispensed and reposted without consent, the Personal Data (Privacy) Ordinance (Cap 486) (“PDPO”) was amended in 2021. In particular, the new regime adopted a two-tier structure in relation to the anti-doxxing provisions.
Whilst section 64(3A) targets at the disclosure of personal data without relevant consent of the data subject with an intent to cause specified harm or with recklessness as to whether specified harm would be or would likely be caused, section 64(3C) targets at such disclosure which actually causes any specified harm to the data subject or his or her family member. The maximum custodial sentences of the two offences are two years and five years respectively. In an appropriate case, the Court may acquit a defendant of section 64(3C) and convict him of the lesser offence of section 64(3A) instead.
In finding whether a defendant has the requisite intent, the Court will take into account a range of factors, including the underlying background, the nature of personal data disclosed, the extent of disclosure, and in the case of doxxing by posting on the Internet, the exact wording used in each post, the attachments to the posts (e.g. photos and videos), the frequency and time interval between the posts, the platform where the disclosures were made, and the Defendant’s replies and/or interactions with other users in each post.
The PDPO has also provided a statutory definition of “specified harm”, namely (a) harassment, molestation, pestering, threat or intimidation to the person; (b) bodily harm or psychological harm to the person; (c) harm causing the person reasonably to be concerned for the person’s safety or well-being; or (d) damage to the property of the person.
Even where both intent and specified harm are proved, a defendant may still rely on one or more of the statutory defences under section 64(6), e.g. the disclosure was solely for the purpose of a lawful news activity and that the defendant had reasonable grounds to believe that the publishing or broadcasting of the personal data was in the public interest. Under section 64(5), the defendant is taken to have established a matter that needs to be established for the purpose of a defence if there is sufficient evidence to raise an issue with respect to the matter, and the contrary is not proved by the prosecution beyond reasonable doubt.
There have been prosecutions in relation to malicious disclosure of ex-lover’s private data, and disclosure arising from private contractual disputes. The sentences of the defendants ranged from community service, suspended sentence, to actual imprisonment in terms of months.
The civil torts of harassment, intimidation, defamation, nuisance or assault
It is not uncommon for one set of conduct to simultaneously give rise to more than one cause of action. For instance, if the perpetrator repetitively sends emails to multiple recipients (including the victim) with untrue statements about the victim and at the same time this causes the victim emotional distress, it may give rise to parallel claims in harassment and defamation. However, each of these tortious causes of action carries with it distinct legal requirements and one may fit a particular scenario better than the others. Practitioners should cautiously consider whether it is appropriate to rely on multiple causes of action in a given factual matrix.
The intersection between the torts of harassment, intimidation, defamation, nuisance, and assault lies in their collective aim to protect an individual’s rights and interests. While each tort addresses distinct legal issues, they all provide remedies for harmful conduct that negatively impacts a person’s life.
Harassment and intimidation both involve unwanted and oppressive behavior causing distress, fear, or emotional harm, while defamation protects individuals from false statements damaging their reputation. Nuisance law protects one’s right to peaceful enjoyment of property, while assault safeguards personal safety by addressing threats or acts of physical harm.
In certain cases, these torts may overlap or coincide, providing multiple avenues for redress. For example, a person subjected to harassment may also experience defamation, or a situation involving intimidation may escalate to assault. Understanding these interconnected areas of tort law is essential in addressing complex situations and ensuring the protection of personal rights and freedoms.
Tort of harassment: clarity after uncertainty
After some years of uncertainty, it is now clear that Hong Kong courts are prepared to recognise the existence of the tort of harassment. Whilst the Court of Appeal once held that there was no tort of harassment at common law, the jurisprudence gradually developed and it was subsequently held that the tort of harassment should exist “to protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds”: Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197; Lin Man Yuan v Kin Ming Holdings Limited (HCA 216/2008, unrep., 3 June 2015).
The tort of harassment is available to victims regardless of what form of relationship they had with the perpetrator, standing in contrast to statutory protection for well-recognised categories of victims such as victims of domestic violence. Often, the victim and the perpetrator will have some pre-existing relationship, such as being neighbours, an employment/workplace relationship, an actual/perceived romantic attachment, or opposite parties of a financial dispute.
Companies have from time to time sought to bring claims of harassment in their own capacity or in representative capacity on behalf of their employees or other associated persons. However, it has been held recently that worry, emotional distress, or annoyance to another person (as an essential element of the tort) could only be suffered by natural persons, and as a result, corporate applicants run the risk of their locus standi being called into question when they are the only plaintiff (be it in its own capacity or as a representative plaintiff).[1]
As to what constitutes harassment, the victim will generally have to show a course of conduct, which is sufficiently repetitive such that a reasonable person ought to know the conduct causes worry, emotional distress or annoyance to another person. The requirement for repeated conduct in harassment claims may pose challenges when the perpetrator targets shift workers, as the harassment occurs repeatedly against the company’s staff collectively but not individually. This conduct could be carried out directly by the perpetrator or through third parties (such as debt-collectors). The courts adopt an objective test, looking at whether the conduct has crossed the boundary from the regrettable to the unacceptable, or from the unattractive to the oppressive.[2] Whether that boundary has been crossed may depend on the context, including the social or working context, in which the conduct occurs.[3] The victim must also show damage, which can range from physical injury to mere humiliation or anxiety.
Victims of the harassment will be entitled to general damages once they are able to establish the tort. The law also imposes financial implications for particularly severe harassment conduct, in the form of aggravated or exemplary damages, though case law suggests that the threshold is high, and only severe conduct such as serious threats of violence, or maliciously exposing young children to the harassment would fall into this category.[4]
Harassment at home: Domestic violence
For decades, protection aimed at domestic violence has been undergoing changes from time to time to respond to social changes which could affect the circumstances in which domestic violence might occur. The Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) (“DVO”) covers spouses and former spouses, relatives, and cohabitants and former cohabitants. Whilst the remedy is commonly sought in the context of partners previously in a romantic relationship, recent uses of the ordinance have also seen its protective regime being used to prevent further assaults being committed by a parent.[5] If however the perpetrator is not covered in that he/she is neither a relative nor a spouse/cohabitant, the victim will have to fall back on the remedy of seeking injunctions in tort rather than seeking this specialised remedy that is heard in the family courts. Currently, spouses or former spouses have the protection of the DVO without having to prove cohabitation. After the landmark case of Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28,[6] the Government is now required to establish a legal framework recognizing a new type of domestic relationship for same-sex partners. It remains to be seen how such statutory domestic violence protections will adapt and evolve in response to this significant change in the legal landscape.
[1] Sir Elly Kadoorie & Sons Ltd v Bradley [2023] 3 HKLRD 587; cf. MTM Lab Japan Ltd v Abacus Ltd [2022] HKDC 917
[2] X & Anor v Z [2020] HKCFI 826
[3] X & Anor v Z [2020] HKCFI 826
[4] Wong Kwai Fun v Li Fung (HCA5810/1986, unrep. 28 January 1994); Kwong Yiu Keung Stanley v Chiu Sin Shum [2021] HKDC 158
[5] RM v AY [2023] 2 HKLRD D2, involving physical violence by a father on a daughter to force her to marry.
[6] Holding that the Government must establish a framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions) and to provide for the attendant rights.
Isabel Tam
Isabel is a Bar Scholar who graduated with a first class LLB and with distinction in her LLM. She also has an MA in competition law with distinction in the examination component, and was seconded to the Competition Commission.
Called to the Bar in 2013, Isabel practises in a wide range of areas, with an emphasis on public law, building management and property law, family law, commercial law and regulatory matters. Her experience in family law includes: children matters, ancillary relief, anti-suit injunction, and harassment-related proceedings.
Recent highlights of Isabel’s experience include NF v R [2023] 5 HKLRD 58, a breakthrough for same-sex parents, granting a declaration of “parentage at common law” to a same-sex couple, and AA v BB [2021] 2 HKLRD 1225, which has been hailed as a landmark victory for the LGBTQ community, granting rights to a separated same-sex couple who had co-parented children during their relationship. Isabel appeared for the Respondent, the non-biological mother within the same-sex relationship, and secured rights for her including guardianship and joint custody.
Visit Isabel’s profile for more details.
Jason Ko
Jason is a Charles Ching Scholar. He has been recognised by Legal 500 Asia-Pacific 2024 as a Rising Star in both “Commercial Disputes” and “Regulatory, Investigations and Crime” categories.
Since joining Chambers in 2019, Jason has acted in a wide range of civil and criminal matters, including successfully seeking injunctions restraining acts of harassment and defamation. He also acted for the defendant in the first Hong Kong trial of disclosing personal data without data subject’s consent, contrary to section 64 of the Personal Data (Privacy) Ordinance (Cap 486): HKSAR v Ip Anthony Chun Hin (WKCC 1638/2022) (led by Philip Dykes SC).
Recently, Jason acted for the successful Plaintiffs in civil contempt proceedings where the Defendant has acted in breach of an anti-harassment injunction order: Chuang’s China Investments Limited v Zhou Changchun [2023] HKCFI 2427 (with Mr Richard Yip).
Find out more from Jason’s profile.
This article was first published on 6 June 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.