Letters | Is recording in Cathay Pacific discrimination scandal a violation of privacy? Unlikely, according to law

Readers discuss the legality of the recording that led to the sacking of three flight attendants, and whether their punishment befits their offence

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A sign of Cathay Pacific is seen at its headquarters in Hong Kong in October 2020. It is not unreasonable that Cathay Pacific would take the flight attendants’ discriminatory remarks very seriously. Photo: Reuters

Published: 11:30am, 3 Jun 2023

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As a lawyer, I write with regards to the firing of three Cathay Pacific flight attendants over discriminatory remarks. One of your correspondents asked if a recording of the flight attendants’ conversation breached the right to privacy.

I am not giving legal advice or acting as anyone’s lawyer, but I can clarify some issues given my legal background.

Recordings, even if done in secret, are not strictly a violation of one’s right to privacy. One typically can rely on the right to privacy if there is an expectation of privacy. So, if someone breaks into your home and records you secretly, that would not be legal. Whatever they recorded probably can’t be used against you, in court or otherwise, and the person recording you would face some criminal penalties.

When you are in public, the issue of privacy becomes less certain. Three years ago, there was an explosion of the so-called “Karen” videos on social media – a meme referencing white women behaving badly – and many wondered if these violate privacy laws. In most cases they do not, because the public setting means that there is no expectation of privacy.

As for private conversations, it depends. In common law systems, we do not rely so much on strict written rules and instead often defer to legal standards of reasonableness. You see the word “reasonable” come up a lot in common law and Hong Kong is no exception.

The court must decide if privacy was a reasonable expectation. So, if you record a couple having dinner in a restaurant, or a business dealing in the corner of a bar, there is an argument to be made. How loud were they talking? What was the environment like? What were you doing at the time of the recording? All of these things matter.