To plug the loopholes and combat voyeurism, unlawful recording and publication of intimate images without consent,
Voyeurism Offence - The Origin and The Law Today
All Started from a School Interview
In June 2014, three primary teachers took photographs of the questions to be used in their primary school admission interviews with their own mobile phones and sent to a friend via WhatsApp to help the friend’s child to prepare for the interview. Later, the case was reported to ICAC and the four parties were charged with “Access to computer with criminal or dishonest intent” (hereinafter “Dishonest use of computer”), contrary to s.161 of the Crimes Ordinance.
In April 2019, the Court of Final Appeal concluded that “access to computer” was different from “use of computer” in the said case. “Access” suggested an unauthorised use of a computer. Any use by a person of his own computer did not involve “access”. The Court therefore acquitted the charges.
The ruling raised concern about the appropriateness of the charges with “dishonest use of computer”. It was inappropriate that people have been charged under section 161 for a wide spectrum of wrongful conducts whenever a computer was used in the course of the misconducts. An example was quoted in the judgement to elaborate that absurd consequences would happen if such an interpretation was adopted. Someone would be prosecuted with “dishonest use of computer” if he used a digital camera to secretly take upskirt shots of a lady in a private place but if he used a traditional film camera, he did not commit any offence.
The ruling revealed a huge legal vacuum – the authorities can rely on no ordinance to prosecute acts of upskirt photography in a private place.
The coverage of “voyeurism offence”
To plug the loopholes and combat voyeurism, unlawful recording and publication of intimate images without consent, the Crimes (Amendment) Ordinance 2021 (the Ordinance) was passed by the Legislative Council on September 30. The Ordinance has been published in the Gazette and came into effect on 8 October 2021, which covers:
The Government seeks to achieve a deterrent effect and protect any possible victims. The said offences carry a maximum penalty of five years of imprisonment. The Ordinance also includes the arrangement of disposal orders, which allows the court to order any person (including social media or any other online platforms) to remove, delete or destroy relevant intimate images having regard to the circumstances, with a view to further protecting victims.
Under what circumstances may commit the offence?
Is it only when a person peeping or recording the intimate part of a subject individual commit the offence?
If the defendant, surreptitiously observes or records without consent a subject individual who is in a place that give rise to a reasonable expectation of privacy (e.g. an individual changing room, a toilet cubicle, private bedroom, subdivided flat, locked office), even if the subject individual was neatly dressed and had not revealed an intimate part, the defendant may still have committed offence.
Is the installation of video camera at home to monitor my domestic helper commit the offence?
Depends on whether the domestic helper has a reasonable expectation of privacy in the position of installation of camera (e.g. bathroom, private space of the helper) and the purpose of installation of camera and the camera position. If the camera is installed in a prominent position, and at the same time the helper has been notified that his/her activities may be recorded or monitored, then the person does not commit voyeurism offence.
Is there any difference between male and female on“upskirting” and “down-blousing” photography?
The Ordinance is gender neutral. Any act meets the elements of offence of voyeurism will constitute the offence.
Is it lawful if I forward such images in private chatting group on the Internet?
A person may commit an offence if the person publishes an image involving peeping or clandestine photography, whether it was taken by himself, publishing or forwarding. Similarly, a person may commit an offence whether sending such images via instant messengers, uploading or reposting to discussion forums.
Does a taxi driver commit offence when he installs a camera in taxi compartment?
Depends on the camera position and if clear signage is posted in the taxi, and the purpose of the installation of camera is merely for security reason, it will not constitute the offence.
Is the publication of intimate images commit an offence when consent was given for the taking of such images?
The subject individual may have agreed to have their intimate images taken, but not representing an agreement to the publication. It is an offence when a person publishes intimate images without consent.
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