Table of Contents Table of Contents
Previous Page  20 / 192 Next Page
Show Menu
Previous Page 20 / 192 Next Page
Page Background


The Court of Appeal, by a 2-1 majority, reversed the decision of the Court of First

Instance, and quashed the Commissioner’s finding of contravention. In its judgment

delivered by Ribeiro JA, the Court of Appeal held that in deciding whether there was

contravention of DPP1(2)(b), two elements must be proved, i.e. (i) an act of personal

data collection; and (ii) doing this by means which are unfair in the circumstances of the

case. Although a photograph of a person constitutes his personal data within the

definition of the Ordinance, the Court ruled that in all the circumstances of the present

case, there had been no “collection” of personal data by the magazine publisher and

hence DPP1 was not engaged at all. The tests applied by the Court in deciding whether

“collection” took place or not set out the judicial interpretation of “collect” as provided

in the Ordinance.

The Meaning of “Collect”


The following statement from the judgment of Ribeiro JA (at 90I), which was repeated

almost word for word in the judgment given by Godfrey VP (at 102D), is of particular

importance for the purposes of understanding an act of collection of personal data:

It is . . . of the essence of the required act of personal data collection that the data user must

thereby be compiling information about an identified person or about a person whom the

data user intends or seeks to identify.


The above statement lays down two conditions for an act of collection of personal data:

• the collecting party must be thereby compiling information about an individual

(“Condition A”); and

• the individual must be one whom the collector of information has identified or intends

or seeks to identify (“Condition B”).


Furthermore, the following statement from Ribeiro JA’s judgment (at 93C) clarifies the

requirements of Condition B:

In my view, many of the other provisions of the Ordinance and in the data protection

principles can only operate sensibly on the premise that the data collected relates to a

subject whose identity is known or sought to be known by the data user as an

important item

of information

. [emphasis added]


Elsewhere in Ribeiro JA’s judgment, reference was made to the facts of the case as well

as other hypothetical scenarios. Referring to the facts of the case, the judge stressed the

irrelevance of the identity of the person photographed to the appellant that published

the photograph in its magazine, and the appellant’s indifference to such identity (91E to

H). In an example quoted, he referred to the lack of concern on the part of market

surveyors about the identity of respondents (91J to 92B). In yet another example, he

mentioned the lack of interest on the part of the photographers and publishers of

newspapers in the identity of individuals whose photographs were published in

newspapers (93B), etc. All these were considered factors leading to the conclusion that

there was no collection of personal data.