In Chong v Chubb Life Insurance Company Ltd  HKCFI 2128, the plaintiff (a self-employed insurance agent) alleged that the defendant had appropriated and used his identity without his consent. He claimed that the defendant had asked him to fill in and sign several forms without explaining what the forms were for, and then used those forms to register him as an agent. The plaintiff (perhaps, rather ambitiously) sought damages for the alleged infringement of his “right to fame”.
In dismissing the claim outright, the court noted:
- Signing is Consent – It is an established principle that a person’s signature on a document is proof that they agreed to its contents. Signing without reading a document beforehand is not a legal excuse to avoid liability – unless there is (for example) a lack of capacity, fraud, misrepresentation, undue influence or duress, a person is bound by their signature and the agreement that it represents;
- “Right to Fame” – As things stand, this is not a recognised cause of action under the laws of defamation in Hong Kong. Even if the plaintiff had showed that his identity had been used without his consent (which he had not) he had no right to compensation.
What Are You “Signing Away”?
In recent years, there has been an increased global focus on the protection of personal data and the right to privacy. Hong Kong offers safeguards under Data Protection Principles 1 (Purpose and manner of collection) and 3 (Use of personal data) of Schedule 1 of the Personal Data (Privacy) Ordinance (Cap.486). Every person agreeing to data collection must first be informed (for example) of the purpose for which the data is to be used, how much of their data is being collected and who will receive the data. If the data is later used for a different purpose, the same person must agree to this new purpose.
However, as in Chong, it remains the case that people often sign documents without reading their contents in full or at all. Chong is a useful reminder of the usual legal consequences of a signature on an agreement. While the Data Protection Principles place a duty on companies to disclose the type of information described above, the burden is on the person signing (the customer) to read the document and ensure that they understand the contents – for a general discourse (albeit, in the context of financial documents) see, Hobbins v Royal Skandia Life Assurance Ltd & Anor  1 HKLRD 977 (at paragraphs 103 and 118) .
“Right to Fame”
In Hong Kong, defamation is the publication of a statement about a person that lowers their reputation or makes others avoid them. Reliance on defamation as a cause of action places a heavy burden on a plaintiff seeking compensation. Infringement of a so-called “right to fame”, as things stand, does not automatically result in defamation. In addition, damage to reputation (resulting in significant loss) has traditionally been difficult to prove in a civil court in Hong Kong. In effect, a victim of unauthorised use of their data or likeness is left with limited recourse.
When these points are coupled with the point on signatures to agreements being binding, there is (in practice) a greater responsibility on individuals and customers to read contractual documents and think before they sign them – whether in the real or digital world. This may be tiresome (at times) but it is a reality of modern-day life. With individuals’ and customers’ lives becoming ever more digitalised on social media and corporate data platforms, every signature or “Agree” box clicked, without reading the full terms, potentially invokes more responsibility or removes rights to recourse.
To date, there has been limited discussion (as a matter of Hong Kong law) on whether a person’s identity (of itself) should be a recognised proprietary right. In Lau v Hang Seng Bank Ltd  1 HKC 280, the plaintiff Cantopop star attempted to make this point in the context of “passing off” and misrepresentation but was ultimately unsuccessful in seeking interim injunctive relief. When recognised household names have difficulty in protecting the value to their name, “brand” or face, it is not difficult to see why there have been so few claims in this area in some twenty years.
At the same time, meaningful developments in data protection should be supported by better recognition of the value of a person’s identity or brand – this is a developing area of the law and, going forwards, one can expect some claimants to push the boundaries of the law and achieve some success. More regulatory focus should also be given to deterrents for misuse of personal data and to recourse or compensation for victims.
In an increasingly digital world, this will all be a key space to watch for those legal representatives that have the requisite legal skills and are willing to develop their areas of practice.