4 15 Laws related to urine incidents of young children in Hong Kong

In this incident, online comments from different viewpoints also involved legal arguments. Mainly focused on the following two points:

1. Did the defecation behavior of the two-year-old child violate the local laws of Hong Kong?

2. Without parents' consent, did you violate the law to protect children from pornography?

Since April 22, comments accusing Hong Kong people have widely quoted an online opinion entitled "A Legal View of Children's Urine Cases in Hong Kong". This comment from the author's blog "Li Woteng" thinks that pictures and videos of children defecating everywhere are a kind of child pornography. Hong Kong people filmed children defecating and were suspected of "making" child pornography. If the photographer left this image on the memory card of the camera, then it is certain that he "owns" child pornography. Therefore, the child's father's fight for the camera memory card is a legitimate means to stop the photographer's ongoing crime of "making" and "possessing" child pornography, and it is also a necessary means to prevent him from "publishing" child pornography, which is completely legal and reasonable.

1. Was the child's urinating behavior suspected of violating Hong Kong laws and regulations at that time?

Hong Kong Public Places Cleanliness and Prevention of Nuisances Regulation.

Article 8 of the law stipulates that:

(1) No one is allowed to defecate in the following places: (1) any street, public place or place where the public can see; Or (b) any common part of the building which is not a latrine or watercloset.

(2) Anyone who is taking care of or caring for a child under the age of 12 shall not, without reasonable reasons, let the child urinate in the following places:

Judging from the above provisions, anyone who urinates anywhere in public places without legal authorization or explanation may be fined or imprisoned. However, there are other provisions in the laws of Hong Kong. Assuming that children under 10 have no criminal intention, then children are not subject to this restriction, and their urgent physiological needs can be justified. Therefore, if a child is accused of misconduct, it is not legally established. However, adults taking care of children are no exception. If there is no "reasonable reason" to let the child urinate in the street, the guardian should bear legal responsibility. The first offense can be fined 5000 yuan, and the second offense can be fined 10000 yuan.

Did the mainland couple in the incident have enough "reasonable reasons" to be accepted by the court?

Judging from the video materials, mainland couples repeatedly stressed that they were queuing in public toilets at that time, but after waiting for half an hour, it was not their turn. The children couldn't hold back and urinated in the street. This factor has won the sympathy and support of many mainland netizens.

But from a legal point of view, if there is no other evidence, it is difficult for the court to adopt it with "reasonable reasons" for this reason alone. Because they can't explain the following questions:

1. If you spent half an hour waiting in line, it is enough to prove that you learned it half an hour ago and began to solve the problem of children's convenience. Therefore, it is difficult to interpret the situation that children can't resist defecation as "urgent" physiological needs. It can only be said that after a delay of half an hour, the physiological needs that were not urgent became "urgent".

During the waiting time of half an hour, they obviously didn't try some simple and quick solutions with enough "reasonable" efforts. For example, ask people in line if children can give priority; He also made no effort to ask passers-by if there were other public toilets nearby.

In the "MK" video, Wu Mou's girlfriend points out that there are other public toilets "across the street". The incident occurred in Mong Kok, one of the busiest commercial districts in Hong Kong. There are more than 10 toilets open to the public within 500m of Fiona Fang. Engaged in map analysis, Wu Mou's girlfriend may refer to Mong Kok Square dozens of meters away, with Pizza Hut inside. If the couple reasonably ask passers-by during the half-hour queue and try to solve the problem of children's convenience as soon as possible, it should not be delayed until the children can't help it.

There is a conversation in the video-when Wu Mou's girlfriend points out that they have been waiting in line for too long, they can ask passers-by where there are other toilets. Wu Mou's girlfriend replied, "There is one across the street", and mainland mother excitedly asked, "Where is it across the street!" The answer is "opposite XX". (See the first part of the entry for details: What happened according to relevant media reports and live videos. This conversation shows that mainland couples have never tried to ask passers-by before.

3. At last, when the child was in a hurry to urinate on the spot, the child directly discharged the urine to the ground on the sidewalk near the road without shelter. This situation shows that they have not made enough reasonable efforts to minimize the negative impact on public interests. Even in an emergency, they have enough time to choose ways that have little impact on pedestrians, such as choosing a more hidden corner and laying paper towels on the ground for two seconds before the children squat down.

According to media reports: "Gao Yongwen, director of the Hong Kong Food and Health Bureau, said on April 26th that it is against the laws of Hong Kong for anyone to urinate in public places. If law enforcement officers are present, they will definitely enforce the law ... Gao Yongwen said that he understands that some parents can't find toilets for their children for the time being, but as long as they prepare urinals, they can avoid embarrassment. "

Gao Yongwen explained that law enforcement officers are not always in every corner, so they may not be able to effectively enforce the law in every street defecation case. However, if there are illegal acts and law enforcement officers are present, they must be enforced according to law.

Second, without the consent of parents, does it infringe on the right of children's portrait to photograph children urinating? Is it a violation of children's right to privacy? Is it illegal to protect children from pornography?

There is no specific concept of "portrait right" in Hong Kong law. Especially in the concept of copyright, Hong Kong's Copyright Ordinance stipulates that personal portraits are not protected by intellectual property law. If a photographer takes a photo of someone, all the rights related to the photo belong to the photographer.

However, according to the Personal Data (Privacy) Ordinance, which is specifically used to protect privacy in Hong Kong law, in actual cases, personal portraits have been classified as personal data (also known as "privacy" and Chinese mainland calls it "privacy right"). Therefore, in Hong Kong law, the legal scope of personal portrait protection is the same as other personal data (privacy). On this issue, portrait right and privacy right can be discussed together.

Because of the case law in Hong Kong, many specific criteria and scales are accumulated on the basis of previous cases. There are two most important cases about whether shooting in the street violates personal privacy:

First, in the case of 1997, the Privacy Commissioner for Personal Data held that it was a violation of the Personal Data (Privacy) Ordinance to secretly photograph the victim in the street without the victim's knowledge. The High Court subsequently ruled that Oriental Weekly lost the case. However, Oriental Weekly continued to appeal, and finally the Court of Appeal overturned all previous judgments and ruled that the behavior of Oriental Weekly was not restricted by the Regulations. The Court of Appeal pointed out that news reports, especially news photography, are not subject to excessive restrictions under the Personal Data (Privacy) Ordinance. This case has established the principle that protecting press freedom is more important than protecting privacy in similar cases, which makes the adjudicator more inclined to protect press freedom in future judgments of similar cases. At the same time, in the judgment of this case, the Court of Appeal cited a standard to judge whether random shooting is an invasion of privacy: "Taking photos without a specific target group and preparing for shooting in a planned way is not a collection of personal data. "This standard applies not only to the shooting of news media, but also to shooting in all similar situations. No matter what the photographer's occupation is, as long as the object he shoots is not a specific target person whose identity is known in advance or who wants to know his identity, and a surveillance plan is made with this goal, and photos are taken during the implementation of this plan, it is not considered to be collecting other people's privacy. Since then, the relevant content of the case has become a precedent.

The other is 20 1 1. An artist complained that "Sudden Week" filmed activities in his home, infringing on personal privacy. In the judgment of this case, the Personal Data and Privacy Commissioner in charge of the judgment, on the basis of the Personal Data (Privacy) Ordinance, summed up three criteria for judging whether the candid camera violated personal privacy, and formed a case, which has been used in similar complaints to this day. Only when these three criteria are not met at the same time will we think that similar behavior violates personal privacy. These three criteria are:

(a) Whether the complainant had reasonable privacy expectations when he was photographed;

(2) Whether the photos were taken by monitoring the complainant's activities in a planned way;

(3) Whether the respondent's collection of the complainant's personal data involves public interests.

Due to the violation of all three standards in the specific behavior of the case, the "sudden week" was finally decided to lose. The privacy of artists is guaranteed.

By comparing these three standards in this incident, it can be basically determined that Wang did not infringe on the child's right to privacy.

First of all, when the child was photographed, he was in a state of defecation in public. When the child's guardian asks the child to take off his pants and pee in a crowded street in Mong Kok, he still has the child's privacy-specifically, his naked genitals and buttocks are uncovered, and he can count on not being exposed to others' sight and attracting their attention. It is hard to say "reasonable expectation". A similar case is that a fan rushed into the stadium naked during the game, and he could not regard "avoiding unauthorized photos" as "reasonable expectation". What's more, in this incident, there are enough images to prove that when the child urinates, his parents didn't try their best to avoid the exposure of the child's privacy, which means they didn't expect the child's privacy to be seen by others.

Secondly, the photographer Wang did not determine the child as the shooting target in advance, and planned to monitor the child's activities, thus taking these photos. Instead, they met randomly in the street and took photos on impulse. Therefore, it does not meet the standard of "monitoring the complainant's activities in a planned way to obtain these photos".

Finally, according to the scope of the concept of "public interest", Wang, as a reporter, took photos of children urinating in the street under the supervision of parents, with the aim of involving public interest.

Article 6 1 of the Personal Data (Privacy) Ordinance of Hong Kong provides as follows:

(1) is held by (1) data users whose business or part of their business includes news activities.

(2) Except for personal data held by users only for the purpose of this activity (and any directly related activities).

Not subject to the provisions of data protection principle 6 (meaning that the collected data have the right to request access to the data, request interpretation, request deletion and modification of the data) and 18( 1)(b) and 38(i), unless and until the data have been published or played (no matter where or in any way); (2) Not subject to the provisions of sections 36 and 38 (B).

(2) Personal data are exempted from the provisions of data protection principle 3 (which requires the consent of the person concerned to change the purpose of data use) in the following cases-

(a) the use of the data includes the disclosure of the data to the data users referred to in paragraph (1); And (b) the discloser has reasonable reasons to believe (and reasonably believes) that it is in the public interest to publish and play (no matter where and in what way) the information (no matter whether the information is actually published or played).

Therefore, the reporter has the right to keep and hold the photos he took, without having to satisfy the parents' request to delete the photos or explain the reasons to them.