Hong Kong: Privacy Law Back On The Agenda

Last Updated: 20 October 2008
Article by Simon Milne and Stefania Lucchetti

Originally Published 2nd June 2008

Recent reports of high-profile leakages of personal data in Hong Kong clearly illustrate the importance of businesses complying with privacy laws from a reputation perspective.

Breaches of privacy will quickly impact consumer confidence in a business, and are likely to affect all stakeholders. Accordingly, this is a fitting opportunity to re-examine the main privacy law in Hong Kong: the Personal Data (Privacy) Ordinance (Cap.486) (the "Ordinance").

Over the past several weeks, reports of public and private organisations in Hong Kong leaking confidential personal data have appeared frequently in the media. The Department of Immigration is the latest to reveal such a leak. On 8 May 2008, the Department of Immigration was reported as having leaked confidential files containing a list of the names of people for officers to watch including their travel document information and travel records. This follows recent disclosures by the Department of Health, the Hospital Authority and a Hong Kong private banking institution.

Who and what is affected?

The Ordinance, which generally reflects the OECD guidelines for the Protection of Privacy and Transborder Flows of Personal Data (1980), has been in force since December 1996. The purpose of the Ordinance is to protect individuals' right to privacy by regulating the handling of personal data in Hong Kong: it applies to any person or organisation, both public and private, that collects, holds, processes or uses personal data.

Personal data refers to all information (however recorded, including expressions of opinions and personal identifiers such as identity card numbers) relating directly or indirectly to a living individual and from which it is practicable to ascertain the identity of the individual. Nearly all active businesses in Hong Kong will be holding some form of personal data, whether that data is kept on electronic databases or in hard-copy files.

What activities are regulated by the Ordinance?

When collecting, holding, processing or using personal data in Hong Kong, businesses should comply with the data protection principles set out in the Ordinance relating to:

  • the purpose and manner of collection of personal data
  • the accuracy and retention of personal data
  • the use of personal data
  • the security of personal data
  • information that should be made generally available, and
  • access to personal data.

What are my customers' rights?

Under the Ordinance, individuals have the right to confirm with businesses whether their personal data is held and to have their personal data corrected if it is inaccurate. Individuals also have the right to obtain a copy of their data upon payment of a reasonable fee.

What about direct marketing?

If a business conducts direct marketing activities, the Ordinance requires the business to inform recipients the first time their data is used that the business must cease use of the recipient's personal data if requested. This regime (commonly referred to as an "opt-out" regime) is consistent with the anti-spam laws in Hong Kong.

Can data be transferred overseas?

Despite the Ordinance coming into force over a decade ago, the relevant section regulating the transfer of data outside Hong Kong is still not in force. This section prohibits the transfer of data outside Hong Kong except in specified circumstances - for example, if written consent to the transfer has been obtained from the individuals to which the data relates.

Although this section is not yet in force, it would be prudent for businesses to comply with it as the section supplements the application of the general data protection principles set forth in the Ordinance. In addition, if a Hong Kong business retains control over the data after the transfer, all other provisions of the Ordinance will continue to apply.

What are the consequences of breaching the Ordinance?

Individuals may complain to the Privacy Commissioner about suspected breaches of the Ordinance's requirements. Suspected breaches of the Ordinance may be investigated by the Privacy Commissioner, either in response to a complaint or at its own initiative. If the Privacy Commissioner concludes that a contravention is likely to be repeated, an enforcement notice may be issued.

Contravention of an enforcement notice is an offence under the Ordinance and is liable upon conviction to fines up to HK$50,000 and/or imprisonment for up to 2 years - continuing offences are liable to a daily penalty of HK$1,000. Individuals may also claim compensation through civil proceedings for damage caused to them as a result of a contravention of the Ordinance, including that for injured feelings.

How do I comply and what can I do to manage risk in my business?

Practically speaking, all Hong Kong businesses that handle personal data should consider the following risk management initiatives:

  • Sensitive information - As far as possible, avoid the collection of sensitive information without first seeking legal advice.
  • Privacy statement - Draft a privacy statement which complies with the Ordinance.
  • Guidelines and processes - Develop and regularly review formal guidelines and processes in respect of privacy related matters.
  • Log Book - Maintain a log book of refusals to grant access to personal data.
  • Privacy officer - Appoint a privacy officer to administer compliance with the Ordinance as well as the training of relevant staff.
  • Security measures - Implement physical and electronic security measures to prevent unauthorised access and misuse of personal data, and
  • Transferring personal data - Prior to the transfer of personal data to foreign countries, ensure that the obligations under the Ordinance are satisfied.

Are there exemptions?

Aside from a broad exemption from compliance for data held for recreational or domestic purposes - that is, personal data concerned only with the management of personal, family or household affairs - the Ordinance provides that businesses need not give employees access to certain employment related personal data. However, not all employment related data is exempt and businesses should be careful to ensure that the data falls within the exemption before refusing to grant an employee access to their personal data.

There are also various categories of data that are exempt from specific provisions of the Ordinance on the basis of prevailing public or social interests. The exempt categories of data include those in respect of security, defence and international relations, prevention or detection of crime, assessment or collection of any tax or duty, news activities and health.

What's in store for the future?

Due to the recent high-profile leakages of personal data, the Privacy Commissioner has indicated that the Ordinance may be revised, including:

  • enhancing the efficiency and effectiveness of enforcing the Ordinance
  • introducing preventative measures against potential data leakages, and
  • clarifying regulatory matters under the Ordinance.

To assist with your compliance obligations, Mallesons will keep you informed of revisions to the Ordinance.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions