Hong Kong Bill of Rights and Personal Data Protection
The PDPO provides that a data user may collect personal data only for purposes which are directly related to its functions or activities. It may not use or process the data for other purposes without the consent of the individual. It must also keep the collected data only for as long as is necessary for those purposes and shall not retain the data beyond that period.
Personal data is data relating to a living individual from which the identity of that individual can be directly or indirectly determined. This includes information about his or her health, ancestry, ethnicity, education, employment, and other personal characteristics. It may also include sensitive data such as race, religion, sexual orientation, political opinion, and membership of professional or trade associations. The PDPO does not cover any such information about legal entities.
Aside from the protection provided by the PDPO, the Hong Kong Bill of Rights stipulates that “no one shall be subjected to any arbitrary interference with his or her privacy, family, home, correspondence or honour and reputation”. The HKPA does not cover matters involving the privacy of legal entities, except those arising out of a legal proceeding, and the law does not require a legal entity to notify its data subjects about its processing of their personal data.
Whether personal data is processed within the territory of Hong Kong or abroad depends on where the data controller and data processor are located. Generally speaking, the data processing cycle will take place in Hong Kong even though the data controller and data processor are located outside the territory of Hong Kong. However, there are some exceptions to this rule.
It is important to note that if the personal data is collected and processed outside of Hong Kong, the provisions of the PDPO still apply. This is because the data is being controlled by a person who controls it in the territory of Hong Kong. The PDPO does not contain any express provisions conferring extra-territorial application on the provisions of the ordinance.
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