Hong Kong: More Changes On The Horizon: New Cross-Border Transfer Restrictions And Personal Information Requirements In The PRC

Last Updated: 26 August 2019
Article by Gabriela Kennedy and Karen H.F. Lee
Most Read Contributor in Hong Kong, November 2019

Despite being brought into force over two years ago, uncertainty remains regarding the application of China’s Cybersecurity Law (CSL). This largely stems from the fact that many of the supplemental measures and guidelines issued by the Chinese authorities still remain in draft format.

On 28 May 2019 and 13 June 2019, respectively, the new draft Measures for Data Security Management (New Draft Security Management Measures) and the new draft Measures on Security Assessment of the Cross-Border Transfer of Personal Information (New Draft Cross-Border PI Measures) were issued for public consultation. These recent drafts appear to depart significantly from the draft Security Assessment Measures for the Cross-Border Transfer of Personal Information and Important Data, which were issued in 2017. More stringent and detailed requirements now appear to be the norm, particularly regarding the cross-border transfer of personal information and important data.


The CSL applies to critical information infrastructure (CII) operators and network operators in China. CIIs include key sectors such as finance, transportation, utilities (e.g. energy and water), government and communications, and any other industries that the Chinese authorities identify as having the potential to cause serious damage to national security, national economy and people’s livelihood and public interests in the event they suffer a security breach leading to any destruction, loss of function or data. In the past year or so, additional sectors that have been identified by the Chinese authorities as falling into the CII category include media, e-commerce, e-payment, search engines, emails, blogs, cloud computing, enterprise systems and big data.

As far as network operators are concerned, the definition is broad enough to essentially include any business that uses some form of IT infrastructure in China (i.e. owns or operates a computer network, server or website in China), regardless of its industry sector.

Transfers of Personal Information and Important Data

Under the New Draft Cross-Border PI Measures and the New Draft Security Management Measures, a CII operator or network operator cannot transfer or disclose personal information or important data collected or generated during their operations in China to anyone outside of China, unless:

  1. they have completed an official security assessment; 
  2. a contract is signed with the intended recipient (which must incorporate specific provisions stipulated by the New Draft Cross-Border PI Measures); and 
  3. for personal information, the express and informed consent of the relevant individual is obtained. 

In addition, the prior authorisation of the relevant regulatory authority is also required for the cross-border transfer, disclosure, sale or publishing of important data by CII operators or network operators. The definition of "important data" under the New Draft Security Management Measures only covers data which, if leaked, may directly affect national security, economic security, social stability, public health and security, such as non-public government information, large-scale population, genetic health, geographic and mineral resources. The definition expressly excludes any information relating to the production, operation or internal management of an entity and personal information.

The above restrictions appear to have extra-territorial effect and may apply to companies that do not have a physical presence in China, but which have operations that involve the collection of personal information of Chinese residents. In particular, the New Draft Cross-Border PI Measures provide that if the business activities of any organisation located outside China results in the collection of personal information of persons located in China, then such organisation will be subject to the New Draft Cross-Border PI Measures as a network operator. 

Under the previous draft measures, CII operators and network operators were required to carry out a self-assessment for the cross border transfer of personal information, and an official security assessment by the relevant local authorities would only be necessary if certain thresholds were met or the transfer was being made by a CII operator. In contrast, the New Draft Cross-Border PI Measures now require all cross-border transfers of personal information by either a CII operator or network operator to undergo an official security assessment by the relevant Cyberspace Administration of China (CAC) branch office. There is currently no minimum threshold in relation to the application of this requirement. In addition, no express exceptions are made in relation to intra-group transfers.

The official security assessment must be conducted prior to the cross-border data transfer, and must be completed for each different recipient. However, multiple or ongoing transfers to the same recipient will not require additional assessments. The assessment must be repeated every two years or whenever there is a change in the purpose, type or retention period regarding the data. 

The documents that must be submitted by the CII or network operator when applying for an official security assessment will include a detailed report on the security risks and measures related to the transfer, the agreement with the intended recipient and a declaration form. If the results of the assessment reveal that the cross-border transfer could present a risk to national security, damage public interest or provide inadequate protection for the personal information, then the transfer will be prohibited. Whilst the CII or network operator can file an objection to the decision, there is currently no detailed appeal procedure set out in the New Draft Cross-Border PI Measures.

A record must be retained by CII operators and network operators for at least five years, which details all of their cross-border transfers of personal information. The local CAC office is obligated to carry out regular inspections of such records, and an annual report must also be submitted to the local CAC office regarding the CII or network operator's cross-border transfers and any related contract.

Lastly, prior to the sharing of personal information with a third party, under the New Draft Security Management Measures CII operators and network operators need to conduct an assessment of the potential security risks and to obtain the express consent of the data subjects. This requirement is not expressly limited to cross-border transfers and does not exclude intra-group sharing of personal information – therefore it appears that it may also apply to domestic transfers and transfers within the same group. There are certain exceptions to this requirement, including situations where the data was collected from a public source and the sharing is not in violation of the data subjects' wishes, the data subject voluntarily published his personal information, it is necessary for law enforcement purposes or to protect national security, and so on. 

Personal Information

Outside the context of cross-border transfers, the New Draft Security Management Measures impose further obligations on CII operators and network operators in relation to personal information. Unlike the "Information Technology – Personal Information Security Specification" (National Standard GB/T 35273-2017) (GB/T 35273-2017 信息安全技术个人信息安全规范) (PI Specification), and its draft amendments released on 1 February 20191, the New Draft Security Management Measures (once finalised and brought into operation) will be legally binding and a breach could lead to various penalties (including the shutting down of business operations). The New Draft Security Management Measures introduce requirements such as the need to obtain explicit and informed consent of the data subjects (and specifically sets out the information that needs to be provided to the data subject), an obligation not to force or mislead data subjects to provide their consent (e.g. bundled consent, default consent, etc.), not to take any discriminatory actions based on the scope of consent provided by the data subject (e.g. reduce service quality), comply with data access requests, implement data encryption and backup measures, and so on. 

In addition, CII operators and network operators that collect important data or sensitive personal information for business purposes must also file with their local CAC office their rules for collection and use, and the purpose, scope volume, method, type and retention period of such data. The CII operators and network operators must also designate a person to be in charge of the data security for the important data and sensitive personal information. 

Where to Now?

The draft measures are likely to be finalised by the end of 2019. For now, companies that have a link to China (e.g. business operations in China, networks in China, collecting information from Chinese residents, Chinese-hosted website, vendors in China, etc.), are advised to conduct privacy and security audits to ensure compliance with the CSL. In particular, companies should carefully scrutinise where their data is held, and engage in conversations with their supply chain.


1  See our article entitled Safe As Houses – The PRC Issues Revised Draft of the Personal Information Security Specification found here.

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

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
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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