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Legal Analysis of 'Dear My Nineteen-Year-Old Self'

Written By: Audrey Ku

Edited By: Pearl Cheng


Felix Mooneeram / Unsplash

Introduction

The documentary movie "Dear My Nineteen-Year-Old Self" was publicly screened in Hong Kong in 2023. The movie was initially intended to raise money internally for Ying Wa Girls' School's redevelopment project, such that it focused on the school life and personal life of six students. It sought to demonstrate the students’ development while enjoying their time at school on the three campuses—the old campus, temporary campus, and new campus. The girls were continuously filmed by the production team throughout their six years at secondary school. As the redevelopment project was delayed, the filming process extended beyond secondary school, turning into a ten-year project, adding clips and interviews of the girls after they had graduated into the movie.


Through the filming process, the impact of social initiatives on students, such as the 2012 Moral and Education Controversy, the 2014 Umbrella Movement and the 2019 Hong Kong Anti-extradition Bill Protests have also been documented. With these topics covered, the film would be conveying a deeper meaning, readily resonating with the audience, and consequently have a greater commercial potential. Since the movie was no longer merely about the school's redevelopment project, the production team changed the plan from selling DVDs to alumni to private screenings, and finally public screenings as well as joining movie awards. It received great success, with over 10 million in box office from public screening.[1] Yet, the change in plans was not mutually agreed. The production team failed to get consent from all the main characters. This led to several controversies and became a heated debate across society. The director of the movie was even rebuked by a man in public after the incident.[2]


This article will first address the legal problems arising from the movie. It will first discuss the issue of lack of consent by analysing the element of consideration and the formation of a contract with minors. Then the problem of violation of privacy will be covered next. This article seeks to highlight the issue of imbalance of powers between parties and draw attention to the right to be forgotten.


Background

Despite its huge success, one of the main characters, Miss Ling, disclosed how the school disregarded her wishes in a letter to a newspaper.


She claimed that around mid-2021, She was suddenly notified of the plan for public screening, which was a few months before the internal premiere of the movie in December. She tried to contact the production team through the school, hoping to know what footage would make it to the final cut of the movie but her request was declined. After watching the movie for the first time at the premiere, she became emotionally disturbed, and even needed psychological assistance from the school. She was particularly concerned about her privacy, but both the school and the production team persuaded her to agree to private screening.[3]


In December 2021, the school drafted a new agreement to get all six main characters’ consent for private screening. Miss Ling persisted in her refusal to sign. In June 2022, the school claimed that after seeking legal advice, a school notice signed by the student’s parents in 2012 already gave consent for the public screening of the movie, but to respect the wishes of Miss Ling, they agreed that there would only be private screenings and participation in movie awards. Yet a few months later, the school once again changed their position, notifying Miss Ling that regardless of her approval, the movie would be publicly screened.


Following Miss Ling’s whistleblowing disclosure, another student, Miss Sheh, shared her thoughts in an interview. She also did not wish the movie to be publicly screened, but nonetheless accepted and signed the new agreement due to the pressure from the school and the production team. In the interview, she raised another main issue of privacy, claiming that the production team had videotaped her without her knowledge, as well as showing clips of her ex-boyfriend in the movie.


Having set out the background to the incident, this article will now move on to assessing the key legal issues.


Contractual obligations

The first question is whether the notice signed constitutes a contract. Key parts of the notice are as follows: ‘I understand that Ying Wa Girls' School owns the copyright of this film and I agree that Ying Wa Girls' School may use the documentary film produced under this consent… in Hong Kong or places outside Hong Kong for the purpose of publication, exhibition, broadcast, public display or distribution, and I give my full permission to Ying Wa Girls' School to do so. I understand that any future financial gains from this documentary project will be placed into the Ying Wa Girls' School Redevelopment Fund.’[4]


The principle of consideration serves as a basis in contract law. It requires an exchange of promises. Each party to a contract must be both a promisor and a promisee. They each receive a benefit and suffer a detriment.[5] As barrister Duncan Ho commented, the notice did not amount to a contract. The students did not receive any benefit through the filming process, they were not paid at all.[6] Thus, there is no contract between the school and the students.


Even if one accepts the school’s interpretation that there is a ‘contract’ between the school and students, the contract was still formed when the students were minors as they were under 18 when their parents signed the notice.[7] The law seeks to protect them from entering a contract too imprudently due to their immaturity. Contracts with minors are divided into three categories: enforceable contracts, voidable contracts and other contracts. The first category recognises only contracts for necessary goods or services, and beneficial contracts of service or employment. They are enforceable inasmuch that the adult has a right to compensation should the minor default. The enforceability should overall be for the minor’s benefit. Specific performance is never available against a minor. Voidable contracts include contracts concerning land, partnership, shares or marriage settlement. They can be repudiated before or within a reasonable time after reaching the age of majority. Other than the above categories, all contracts with minors will be unenforceable against minors.[8] Failing to satisfy the requirement in the first two categories, the notice may as well belong to the other category, such that it is unenforceable.


This raises the concern about the imbalance of powers between the parties.[9] School teachers and the principal might be holding the attitude that ‘I am doing this for your own benefit.’ Notwithstanding the lack of contractual obligation, the school pressured students to accept the decision of public screening. Yet, there ought to have been mutual respect between the parties, allowing the students to express their views on the footage before the movie was finalised.[10] Overall, as media scholar Professor Yan viewed, the notice was too general to form a contract. Students and parents relied on their faith towards the school, failing to realise that there was no contractual obligation to agree.[11]


Privacy

Apart from contractual obligations, another main issue is the right to privacy. According to the Personal Data (Privacy) Ordinance, consent does not include one which has been withdrawn by notice in writing served on the person to whom the consent has been given.[12] The information is subject to cessation. Actions can be taken to restrict the information to be disclosed, including the removal of such information.[13] Therefore, Miss Ling and Miss Sheh should enjoy the right to privacy, having the right to ask the production team to edit footages that might invade their privacy. The Office Of The Privacy Commissioner For Personal Data had already responded to the media that it is aware of this situation and is highly concerned about the case. It had also contacted the school for further details.[14]


This raises the question of whether there is a need for tighter regulations on privacy, especially the right to be forgotten. This right is viewed as a direct and qualified right to control one’s own data, such that individuals can request the deletion of their data. This right is established in the EU from the case Google Spain v AEPD and Mario Costeja Gonzalez.[15] But there is no such right in Hong Kong. There is only a protected right which, unless the prescribed consent of the data subject is obtained, personal data cannot be used for a new purpose.[16] The controversy sheds light upon the discussion on the right to be forgotten. A greater awareness towards the right to be forgotten may be viewed as a step closer to establishing the right in Hong Kong, offering stronger protection for privacy.[17]


Conclusion

In conclusion, the disagreement between the two parties has reflected the lingering issues about consent and privacy. The alleged contractual duties highlighted the issue of an imbalance of powers. Students being significantly weaker means that they may not have much of a voice in this process. Whilst the controversy also illustrated the issue of privacy, raising a question on whether there is a need for rights to be forgotten should be implemented to safeguard the use of data.



References


[1] Hong Kong Trade Development Council ‘Hong Kong International Film and Market’ (HKTDC, 5 February 2023) < https://event.hktdc.com/fair/hkfilmart-tc/s/11082-General_Informationl> accessed 5 March 2023.


[2] Sing Tao Daily ‘Bald Man in the Theater Shouted and Scolded Mapel Cheung Causing Her to Almost Fall Down Stairs’ Sing Tao Daily (Hong Kong, 6 February 2023).


[3] Ling, ‘A Girl's Confession of "To my Nineteen-year-old Self” 1’ Ming Pao (Hong Kong, 4 Februrary 2023).


[4] Chiu Shui Yun and Chan Ning, ‘A Girl's Confession of "To my Nineteen-year-old self” 1’ Ming Pao (Hong Kong, 17 February 2023).


[5] Currie v Misa (1875) LR 10 Ex 153.


[6] Lui Wing Shan, ‘Signing a Consent Form And Becoming The Centre of the Dispute, Barrister: Without a Contract Consent Can Be Withdrawn At Any Time’ HK01 (Hong Kong, 9 February 2023).


[7] Age of Majority (Related Provisions) Ordinance, S 2(1).


[8] Michael J. Fisher and Desmond G. Greenwood Contract Law in Hong Kong (Hong Kong University Press, 2007) [122-133].


[9] Joseph-Williams, Adrian Edwards, and Glyn Elwyn. "Power Imbalance Prevents Shared Decision Making." (2014) BMJ 348 [2]


[10] Lee Ching Yun ‘Five Takeaways from the Suspension of Screening of the Hong Kong documentary "Dear Nineteen-year-old Self”’ BBC (Hong Kong, 13 February 2023).


[11] ibid.


[12] The Personal Data (Privacy) Ordinance Preliminary s1.


[13] ibid s66L.


[14] Lui Wing Shan, ‘Office Of The Privacy Commissioner For Personal Data Reaches Out to Ying Wa Girls' School for Details’ HK01 (Hong Kong, 13 February 2023).


[15] Google Spain v AEPD and Mario Costeja Gonzalez (2014) C‑131/12.


[16] The Personal Data (Privacy) Ordinance s3.


[17] Jojo Mo ‘Privacy and Publicly Available Information: An Analysis of the Common Law and Statutory Protection in Hong Kong’ Statute Law Review, 2019, Vol. 40, No. 2 [188–205].




Bibliography

Articles

  • Jojo Y.C. Mo ‘Privacy and Publicly Available Information: An Analysis of the Common Law and Statutory Protection in Hong Kong’ Statute Law Review, 2019, Vol. 40, No. 2 [188–205]

  • Natalie Joseph-Williams, Adrian Edwards, and Glyn Elwyn. "Power Imbalance Prevents Shared Decision Making." BMJ 348 (2014)


Books

  • Michael J. Fisher and Desmond G. Greenwood Contract Law in Hong Kong (Hong Kong University Press 2007) [122-133]


Cases

  • Currie v Misa (1875) LR 10 Ex 153

  • Google Spain v AEPD and Mario Costeja Gonzalez (2014) C‑131/12


Statutes

  • Age of Majority (Related Provisions) Ordinance, S 2(1)

  • The Personal Data (Privacy) Ordinance Preliminary s1, 3, 66L


Newspaper

  • Chiu Shui Yun and Chan Ning, ‘A Girl's Confession of "To my Nineteen-year-old self” 1’ Ming Pao (Hong Kong, 17 February 2023)

  • Lee Ching Yun ‘Five Takeaways from the Suspension of Screening of the Hong Kong documentary "Dear Nineteen-year-old Self”’BBC (Hong Kong 13 February 2023)

  • Ling, ‘A Girl's Confession of "To my Nineteen-year-old Self” 1’ Ming Pao (Hong Kong, 4 Februrary 2023)

  • Lui Wing Shan, ‘Signing a Consent Form And Becoming The Centre of the Dispute, Barrister: Without a Contract Consent Can Be Withdrawn At Any Time’ HK01 (Hong Kong, 9 February 2023)

  • Lui Wing Shan, ‘Office Of The Privacy Commissioner For Personal Data Reaches Out to Ying Wa Girls' School for Details’ HK01 (Hong Kong, 13 February 2023)

  • Sing Tao Daily ‘Bald Man in the Theater Shouted and Scolded Mapel Cheung Causing Her to Almost Fall Down Stairs’ Sing Tao Daily (Hong Kong, 6 February 2023)


Websites



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