On the 1st December 2015 the Hong Kong Personal Data Privacy Commissioner ("the Commissioner") as the chief executive officer charged with responsibility under the Personal Data Privacy Ordinance ("PDPO") took the deliberately proactive step of publishing two important papers related to the Data Protection Principles which apply to the collection of personal data under the PDPO.
The Data Protection Principles scheduled to the PDPO require that personal data should be collected and communicated to the data user only where necessary and that the methods of collection of personal data must be fair and for a lawful purpose. Data subjects have a right to be informed about the extended use of their personal data and to be assured that their personal data is accurately recorded and securely stored. Furthermore the retention of collected personal data can only be for a period directly related to the purpose of collection. Any change of that purpose which departs from the original purpose of collection must be sanctioned by a specific consent to such change by the data subject. Furthermore data subjects are entitled to be informed about the policies and practices of the collecting data user and of the right to access the collected personal data and to correct it.
On the whole these principles have guided many collectors and users of personal data since the enactment of the PDPO in 1995.
However, it is only in recent years that with increasingly alert and active Commissioners getting the bit between their teeth that the PDPO has been brought squarely and fairly into the benefit of the public and by an activity extension at the close of 2015 the Commissioner has focused his eyes upon the possible abuses of the PDPO in relation to the collection of the personal data of and from children.
In May 2015 the Commissioner's Office carried out a survey on the commercial outreach targeting of young persons in Hong Kong. This was Hong Kong's contribution to a coordinated worldwide survey on the same lines which it can now be seen threw up some interesting statistics regarding the sometimes cavalier way in which data users approach data subjects below the age of 18. The survey involved 43 local Hong Kong websites and two mobile apps variously run by NGOs, businesses and the Hong Kong SAR Government. The survey found that 60% of the local websites collected the home address of the target and over 70% requested the phone number of the target. The equivalent averaged figures for the international survey were respectively 19% and 22%. More than half of the local websites in the survey did not indicate to the accessing visitors that the websites might share collected personal data with third parties including other businesses thus establishing a covert or hidden effective breach of the data principle on collection which we visit below. Furthermore, only 4% of those surveyed proactively offered a personal data deletion option to the data subjects.
For this purpose "children" are regarded by the Commissioner as persons aged under 18.
As stated above two separate publications have issued in December 2015 from the Commissioner's Office.
The first can be seen as a supplement to the Commissioner's previous publication "Guidance for Data Users on the Collection and Use of Personal Data."
This first supplementary publication identifies the inexperienced innocence of children as the principal realistic danger to them and, by extension, to others who may be the recipients of personal data innocently transmitted by children on the internet.
It is the children's lack of sophisticated acquired ability to comprehend the full scope of potential reach of the internet and accordingly of personal data posted on it which is the main concern identified by the Commissioner.
Accordingly, the Commissioner emphasizes that data users should bear in mind that in any current interest interaction with children that they are at least potentially a highly vulnerable class and the Commissioner offers the following tips of best practice for following of the data protection principles outlined above by data users.
The Commissioner suggests that best data user practice is to avoid collecting personal data from children and he further extends this counsel to the possible collection of personal data from children which relates to third parties such as their parents or friends. The Commissioner advises that if children are to be involved in the collection of personal data the means of collection should be in the most simple form available and with specific indications to the child concerned that submission of data collected in respect of third parties such as parents or friends must be the subject of express consent of such third party persons.
Discussion forums on the internet are commonplace today. These encourage content to be posted by visitors to the forum who may of course include children. It is for the data user to ensure that when children post such content into the forum the privacy implications which arise are clearly understood by the posting child. This should extend to the ability of the posting child to delete and edit the posted matter so that the posting child is given an explicitly considered opportunity to reconsider the posted content. The best and ideal rule of thumb is that when data users are setting out discussion forums they should make it necessary for previewing of content to enable assessment before posting into the forum as a means of encouraging the posting child to think twice before the material goes online in the forum. It should further be made clear to all and sundry that once material is posted in the forum it may be copied by third parties and re-posted out of control of the originally posting child.
The Commissioner advises that parental guidance should involve the posting child in the giving by children of their personal data to the collecting data users and that the child's consultation with parents prior to any such posting while not perfect would be an ideal counsel to follow.
Children should be made fully aware of their rights to correction or removal of their personal data in the simplest possible way with full information of how to effect removal or disclosure.
Data users should ensure that data posting children should be fully aware of default configuration with privacy protection. This should be as restrictive as possible to prevent onward sharing without clear knowledge and consent of the data subject – particularly relevant in the case of data subject children.
In addition to taking all possible steps to ensure that children have fully aware knowledge of the consequences of the collection of their personal data, a data user should consider the best practice of providing a means to enable children to opt out of the publication of their personal data.
This advice extends to the obtaining of express consent as required by the Data Protection Principles above mentioned of any child data subject when the original purpose of the personal data collection is to change to a new purpose.
Considerable focus is given by the Commissioner to the interaction of child data subjects who use social network accounts and provide personal data for the purpose. The child data subject providing the personal data should be clearly warned and advised with a full explanation of the implications of diffusion of the collected personal data among the social network users. The provision of anonymous login would be an effective way to achieve this as nearly as possible. The same caution any rehearsal should apply to a data user's collection from children of personal data which are, or are likely to be, the subject of redirection to linked sites. This is because the personal data concerned and its onward use and application will be completely outside the control both of the child data subject and, more importantly, of the data user who has collected the personal data concerned.
Consistent with the foregoing the use of personal data on direct marketing materials and practice should be made very clear with the express consent of the child data subject being obtained prior to the collection of the personal data concerned. Experience has shown that even adult data subjects have difficulty understanding their rights to prior consent before data collection thus making the principle even more relevant and important in relation to children.
Lastly but by no means least, the protection of personal data is also a matter of legally required secure storage by the collecting data user and the collected data subject should ideally be assured at or before the time of the personal data collection of the details of the secure storage of the collected personal data as required by the data collection principles set out above.
Finally, any data collection material targeted at children should be phrased and delivered in the simplest possible language without the use of obscure legal or linguistic terms clearly beyond the normally current vocabulary of a data child subject.
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.