Data protection and cybersecurity laws in Hong Kong

The Personal Data (Privacy) Ordinance (Cap. 486)  (the "PDPO") is a comprehensive set of laws that is technology-neutral and provides a set of Data Protection Principles outlining how data users should collect, handle and use personal data.

The Office of the Privacy Commissioner for Personal Data www.pcpd.org.hk

The legislation is due for amendment since its last substantive amendment in 2012.

The Constitutional and Mainland Affairs Bureau released LC Paper. No. CB(2) 512/19-20(03), a discussion paper seeking the Legislative Council’s Panel on Constitutional Affairs’ (the Panel) views on proposed changes to the Personal Data (Privacy) Ordinance (Cap.486). The proposed changes follow proposals by the Privacy Commissioner for Personal Data, and include six proposed amendments.  Of these six, the last, which relates to doxxing, was implemented on 8 October 2021 pursuant to the Personal Data (Privacy) (Amendment) Ordinance 2021 (the “Amendment”):

• Inclusion of a Mandatory Data Breach Notification Mechanism;
• Requirement for retention policy and specified Data Retention Period; 
• Provision of Sanctioning Powers to PCPD to impose administrative fines and raise relevant criminal fine levels; 
• Regulation of Data Processors; 
• Amending the Definition of Personal Data to cover information relating to an "identifiable" natural person; and
• Regulation of Disclosure of Personal Data of Other Data Subjects to curb doxxing.

Administrative sanctions:

N/A

Criminal sanctions:  

A summary of various offences and penalties under the Ordinance can be found at: https://www.pcpd.org.hk/misc/files/table2_e.pdf

Specifically, in relation to the offences of doxxing (i.e. the act of publishing private or identifying information about an individual on the Internet, typically for malicious purposes), which came into force on 8 October 2021, please note that according to the Amendment:   

1. It is an offence for a person to disclose any personal data of a data subject without the data subject’s consent.  It should be noted that the provisions protect both the data subject and their immediate family members.
2. To facilitate enforcement of the doxxing offence, the Amendments empower the Privacy Commissioner to carry out criminal investigations and initiate prosecution without the need to refer cases to the Police or Department of Justice.
3. The powers include (a) requesting relevant documents, information or things from any person, or require any person to answer relevant questions to facilitate an investigation into certain offences; (b) applying for a warrant to enter and search premises and seize materials for the purposes of a specified investigation; and (c) prosecuting in its own name cases of suspected contravention of the new doxxing offence and other offences under section 64 of the PDPO or failure to comply with the Privacy Commissioner’s requests related to criminal investigation.
4. Furthermore, the Amendment confers on the Privacy Commissioner statutory powers to demand cessation of doxxing content.
5. The Commissioner will specify in the cessation notice the concerned doxxing content, notify the person what rectification actions to take, and stipulate a deadline for compliance.  An appeal mechanism against a cessation notice is in place to allow any person affected by the notice to make an appeal not later than 14 days after the notice is served.
6. Penalties for the offence of the doxxing ranges from a level 6 fine (HKD 100,000) and 2 years imprisonment to a fine of HKD 1,000,000 and 5 years imprisonment.

Others:  

N/A 

There is no requirement for notification/registration/authorisation for processing personal data (i.e. no mechanism similar to that in UK Notification to process personal data - GOV.UK (www.gov.uk))

Data users shall comply with the six principles set out in Schedule 1 to the Ordinance: 

• personal data shall only be collected for a lawful purpose directly related to a function or activity of the data user. The data collected should be necessary and adequate but not excessive for such purpose. The means of collection should be lawful and fair; 
• data users are required to take all practicable steps to ensure that personal data is accurate and not kept longer than is necessary for the fulfilment of the purpose for which the data is used. If data users engage a data processor for handling personal data of other persons, data users should adopt contractual or other means to ensure that the data processor comply with the mentioned retention requirement; 
• data users shall not use personal data for any new purpose which is not or is unrelated to the original purpose when collecting the data, unless with the data subject’s express and voluntary consent; 
• data users shall take all practicable steps to protect the personal data they hold against unauthorised or accidental access, processing, erasure, loss or use; 
• data users are required to take all practicable steps to ensure openness of their personal data policies and practices, the kind of personal data held and the main purposes for holding it; and 
• data users shall provide data subjects with the right to request access to and correction of their own personal data.

Data subjects are given the right to access and make correction to their data.

No direct regulation on data processors. However, data are required to adopt contractual means to ensure that data processors or sub-contractors adopt measures to ensure the safety of personal data.

There are currently no prescribed laws restricting transfer out as the relevant provision in the PDPO, section 33, is not yet in effect. Section 33 provides:

• the place is specified by the Commissioner by notice in the Gazette that there is in force any law which is substantially similar to, or serves the same purposes as, the Ordinance – no place has satisfied this condition up to date;
• The data user has reasonable grounds for believing that there is in force in that place any law which is substantially similar to, or serves the same purposes as, the Ordinance;
• The data subject has consented in writing to the transfer;
• The data user has reasonable grounds for believing that the transfer is for the avoidance or mitigation of adverse action against the data subject; it is not practicable to obtain the consent in writing of the data subject to that transfer; but if it was practicable, such consent would be given;
• The data is exempt from Data Protection Principle 3 by virtue of an exemption under Part VIII of the Ordinance (such as personal data held for news activities, for domestic use, for purpose of prevention of crime etc.); or
• The data user has taken all reasonable precautions and exercised all due diligence to ensure that the data will not, in that place, be collected, held, processed, or used in any manner which, if that place were Hong Kong, would be a contravention of a requirement under the Ordinance. Please note that use of recommended model data transfer clauses to develop an enforceable data transfer contract by data users is one method to satisfy the required due diligence requirement. 

There is no mandatory requirement. However, it is required that a data subject is informed of the name or job title, and address, of the individual who is to handle the data access or correction request made to the data user.

Data users should take all practicable steps to protect the personal data they hold against unauthorised or accidental access, processing, erasure, loss or use.

There is no mandatory requirement, but a data breach may amount to a contravention of 

• Data Protection Principle 4(1); and in Schedule 1 of the Ordinance;

The following action plan is recommended as practice to be adopted by data users: 

• immediate gathering of essential information relating to the breach; 
• contacting the interested parties and adopting measures to contain the breach; 
• assessing the risk of harm; 
• considering the giving of data breach notification: notifying the affected data subjects, the relevant parties, the law enforcement agencies, the Commissioner, relevant regulators and such other parties who may be able to take remedial actions as soon as practicable after the defection of the data breach.  For notifying the Commissioner, a “Data Breach Notification Form” can be used.

The data user must:

• inform the data subject (i) that the data user intends to so use the personal data; and (ii) that the data user may not so use the data unless the data user has received the data subject’s consent to the intended use – this “consent” needs to be “an indication of no objection to the use or provision” and hence, silence or lack of response will not be deemed to be consent;
• provide the data subject with the following information in relation to the intended use (i) the kinds of personal data to be used; and (ii) the classes of marketing subjects in relation to which the data is to be used –  the description of such classes should be specific, making reference to the distinctive features of the goods, facilities or services so that it is practicable for the customers to ascertain the goods, facilities or services to be marketed with a reasonable degree of certainty; and
• provide the data subject with a channel through which the data subject may, without charge by the data user, communicate the data subject’s consent to the intended use – a data user can only elect a response channel that enables the data subject’s consent to be made in writing.

There are no specific requirements in relation to use of cookies.  

However, the use of cookies to collect personal data needs to be in compliance with Data Protection Principle 1(3) in Schedule 1 to the Ordinance that requires: 

• the data subject is explicitly or implicitly informed, on or before collecting the data, of (i) whether it is obligatory or voluntary for him or her to supply the data; and (ii) where it is obligatory for him or her to supply the data, the consequences for him or her if he or she fails to supply the data; and 
• he or she is explicitly informed: (i) on or before collecting the data, of (A) the purpose (in general or specific terms) for which the data is to be used; and (B) the classes of persons to whom the data may be transferred; and (ii) on or before first use of the data for the purpose for which it was collected, of (A) his or her rights to request access to and to request the correction of the data; and (B) the name or job title, and address, of the individual who is to handle any such request made to the data user.

Moderate

• https://www.pcpd.org.hk/

There is no single comprehensive ordinance that address specifically on cybersecurity issues, and the most significant laws that cover cybersecurity matters include provisions under: 

• Crimes Ordinance (Cap 200): (1) s.161 Access to computer with criminal or dishonest intent; and (2) s.60 Destroying or damaging property; 
• s.27 A (unauthorised access to computer by telecommunications) under Telecommunications Ordinance (Cap 106); 
• Control of Obscene and Indecent Articles Ordinance (Cap. 390); 
• Prevention of Child Pornography Ordinance (Cap 579);  
• The Unsolicited Electronic Messages Ordinance (Cap 593); and
• The PDPO.

Innovation and Technology Bureau and the Office of the Government Chief Information Officer has submitted a paper in April 2022 to the Legislative Council in relation to plans for introducing  a cybersecurity law to address changing post-covid working practices and cybersecurity threats to critical infrastructure. 

It mainly criminalises conduct around unauthorised access to computer and disseminating obscene, child pornography and unsolicited electronic messages. 

Information Commissioner’s Office www.ico.org.uk

The Cyber Security and Technology Crime Bureau (Hong Kong Police) https://www.police.gov.hk/ppp_en/04_crime_matters/tcd/tcd.html  

The Communications Authority (for reporting spam) Communications Authority - Home (coms-auth.hk)

N/A – There is no prescribed obligation imposed on cyber users or operators to adopt security measures except those involving handling personal data as specified in Personal Data (Privacy) Ordinance (Cap 486) (the “Ordinance”)

Administrative sanctions:

N/A

Criminal sanctions:

Hong Kong Police will enforce the provisions of the relevant Ordinances.  Penalties will range from a level 4 fine (HKD 25,000) to imprisonment for five years.

For the offences under the PDPO, the Privacy Commissioner may enforce the provisions of the PDPO.  Penalties will range from a level 6 fine (HKD 100,000) and 2 years imprisonment to a fine of HKD 1,000,000 and 5 years imprisonment. 

Others:

N/A

No 

N/A

• Hong Kong Monetary Authority has issued various non-binding cybersecurity guidelines for authorised institutions such as Cyber Resilience Assessment Framework and cybersecurity guidelines with respect to the use of stored value facilities, ebanking systems and artificial intelligence.
• Securities and Futures Commission has published guidelines and circulars such as the Guidelines for Reducing and Mitigating Hacking Risks Associated with Internet Trading and specific guidelines in relation to the use of external electronic data storage.
• Insurance Authority has issued the Guideline on Cybersecurity laying down the minimum cybersecurity standards that authorised insurers must observe.
• The Commissioner for the Electronic Health Record has issued codes of practice regarding the use of the electronic health record sharing system by healthcare providers to access and share patients’ electronic health records. 
• The Office of the Government Chief Information Office (“OGCIO”) has issued guidelines on cybersecurity controls and measures applicable to various government offices and departments. In light of targeted and organised cyber attacks on a global scale, OGCIO has formulated a comprehensive set of Government IT Security Policy and Guidelines (Policy and Guidelines), to ensure the security of government data and information systems. 

NA