Hong Kong: Hong Kong Data Protection And Privacy Regulations

Last Updated: 10 September 2019
Article by STA Law Firm

Introduction

Data protection and privacy matters are becoming a continuously more significant issue, and individuals are giving more consideration to it than ever before. A key reason for this is because of the ease with which information is obtained. Also, considerable numbers of groups and entities are provided with said private information regularly and freely. Social media is one of the primary areas of concern and one of the most significant sources of stored private information. These details are found and shared regularly on social media sites and more, and with such information stored therein, questions arise concerning their purpose. This concept is not the only matter which concerns data protection and its legislations, though it is the most commonly considered by the general public.

Hong Kong is a very significant global centre, well known around the world as a financial hub. The city has a fantastic story of growth through recent decades, with it gaining independence and returning it under the sovereign powers of China only in 1997. Initially, the city functioned as little more than a fishing and farming location with a small population. It now has a population of around 7.4 million and is considered a global city with a considerable amount of international business and interest occurring.

Honk Kong is also an exceptionally highly developed city and has one of the highest-ranked and freest economies on a global scale. The level of technological advancement is also substantial, and the nation is known for its advanced nature. As such, data protection and privacy is a vital issue, and the regulations concerning it are of the utmost importance.

The central regulation that governs data privacy is the Personal Data Privacy Ordinance (PDPO), which came into effect in December of 1996. It was one of the first regulations of this type and nature in the region, and it arrived at a stage when the digital age was in its infancy. This timing can, in a way, be thought of as a great foresight as the concept of privacy only became a more significant concern as time went on from this point.

Within this article, we will take a look into the regulations governing data protection and privacy in Hong Kong and how they have evolved over the years.

The Crucial Data Regulations

The primary rule for data protection is the PDPO legislation. While the introduction occurred in 1996, it did witness significant changes in 2012 and 2013. Beyond this law, though, there are no others on the specific topic. Alongside the regulation, there is also the Privacy Commissioner for Personal Data (PCPD) which was introduced to oversee and ensure the PDPO regulation is enforced. They are an independent organisation which look to provide a fair system and operate freely and impartially. Further to this, when it comes to enforcement of the rules, the PCPD has something of a duty to collaborate or partner with global jurisdictions or entities in ensuring the privacy regulations are maintained across borders.

Enforcement is only one aspect and role of the PCPD, though. The PCPD must also actively look into the economy for issues and instances where breaches of data privacy are occurring. The reasoning here is to ensure large companies are kept in check and monitored, preventing problems from arising rather than fixing issues already emerged. One of the advantages to this is that it can help to maintain confidence in the people if there are no news stories or headlines concerning data breaches. However, this requires significant proactive action on the part of the PCPD.

Beyond this, it is vital to ensure that concepts of data privacy and its importance are made common knowledge. For the regulations to be respected, a culture must be formed under which the rules of confidentiality are respected. The processes and technology surrounding the matter should be kept up to date and well maintained.

To summarise the role of the PCPD, their main goals and responsibilities are as follows:

  1. Enforcement of the PDPO Regulations and work with international organisations to ensure cross-border implementation.
  2. Supervising the companies and entities that deal with private data and ensure data privacy and protection is upheld.
  3. Promote good data protection practices to entities within their jurisdiction and also to promote the regulations on a large scale.
  4. To maintain up to date technology on the matter and also keep up with more international trends on the topic.

The privacy protection regulation is the only one in Hong Kong and the organisation, PCPD, are the primary organisation responsible for this law.

The 2012 Amendments to the PDPO

The amendments to the regulation were introduced through a Bill. This Bill was approved of by the legislative council and initially came into effect in June of 2012. These were reasonably significant changes and had to be, as the regulation was around sixteen years old at the time. The process of introducing these changes was a lengthy one as significant thought and time were put into making sure the alterations carried real weight and impact.

The changes will now be discussed in further detail.

Some of the changes included repealing and altering definitions and grammar found in the original text. However, among the more significant changes was Section 35C and J. This related to using personal data in marketing. Before being able to do this, permission is required from the individuals. Information of the marketing must be provided as well as methods for the data owner to contact the entity should they have any concerns. In more recent years, this is becoming significantly more common a practice. The importance of informing people and making sure they are aware of where their information is being utilised and how it is being handled is expected.

This information can be provided to the data originator either through written or oral means. However, in any case, where a data user wishes to pass the data on to a third party for any purpose, they must provide a written request.

Often, these requests may arise on the first occasion when the data user wishes to utilise it for marketing purposes. Following this though further requests are not required every time a new need arises. All of these matters must be made clear to the individuals, and the application should understandably provide all necessary information.

There were previously specific fines and punishments for failure to meet the standards, though these have now seen a significant increase from $10,000 to $500,000 along with potential imprisonment for up to 3 years. Further to this, in the case where an individual or entity looks to gain benefit or cause loss to the data originator, they may receive a fine. This fine can range up to $1,000,000 and imprisonment of up to 5 years. Section 66B also allows for the provision of legal assistance and aid to those who are wronged in terms of their private data

A case which relates to this is Eastweek Publisher Ltd. V Privacy Commissioner for Personal Data. An individual found online, their data on a publically accessible site with specific links being available. Permission had not arisen for the data to appear therein, and so the case was brought forth. The Commissioner decided that the particular hyperlinks that led to the data should be immediately removed. This decision was appealed, and the claim was that the data user was a collector and was not using the information for personal gain or to target the claimant specifically. However, due to the intimate nature of the data, this appeal was dismissed.

The Privacy Commissioner has also seen specific increases in their powers. In regards to the enforcement of PDPO regulations, the Commissioner can serve notices to any users of data who have breached some aspect of the rules. This notice serving is limited to the duration of time in which the breach is occurring, and so if the issue reaches a resolution and a repeat seems highly unlikely, no notice can arise.

The regulation also now allows for third parties to provide consent for the use of personal data for others, specifically in the case of minors and individuals with specific disabilities. As with many aspects of the law relating to third party guardianship or care, the consent will only be accepted in cases where it is of benefit to data originator party.

If any data user outsources work to third parties, which requires the sharing of private data, they will also be liable to form a contract with that third party. This contract must ensure that there is no misuse in handling the information, and the data is only kept for a specific period or for as long as is necessary. Unauthorised accessing of the information must not occur, and total protection is a must.

There are exemptions to the regulations, though, found where one would commonly expect. Data held by judicial officers while undergoing their duties and also data that they are to locate, cannot be withheld. Further to this, legal guardians have the same power over the data of those under their care, and in emergencies where exceptions are understandable, the same shall apply.

Conclusion

Hong Kong has been at the forefront when it comes to data protection and legislation on the matter. While the subject of private details is thought of as significant in the technology and the social media-driven world, Hong Kong introduced its PDPO regulations as far back as 1996. It is this same regulation that they have maintained and continued to expand upon.

The most notable recent expansion was the 2012-2013 amendment which brought the concepts up to date and the changes introduced within were undoubtedly needed. They are primarily changes relating to specific powers of individuals, as well as expansions to the fines that are in place.

The PCPD is the entity which manages the data privacy and protection issues and ensures the lofty standards are maintained as well as spreading the message on the seriousness of this security.

While Hong Kong was among the first in the world to make the step with a piece of legislation, the remainder of the world is certainly catching up. In the decades since the need for such legislation has grown and so the latest issue is ensuring the regulations can keep up with global demands and technological improvements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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