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Hong Kong’s personal data protection regime places significant and onerous requirements on data users when exchanging cross-border information from the territory. Padraig Walsh from Tanner De Witt’s Data Privacy practice group discusses some key points businesses must keep in mind when handling data transfers.
First and foremost, it is necessary to determine whether the person in question falls under the jurisdiction of PDPO. This can be determined based on how much control that person has over collecting, holding, processing or using personal data. Keep in mind that personal data includes anything that identifies an identifiable natural person such as name; identification number; location data; online identifier; factors specific to physical, physiological, genetic mental economic cultural or social identity of said individual plus information related to their health or sexuality.
If someone does not meet this definition of a data user, then the Personal Data Protection and Promotion Ordinance does not apply directly. However, that does not exempt him from complying with other aspects of it – businesses should therefore carefully consider all their obligations before taking any decisions regarding data transfers from Hong Kong.
Transfer impact assessments are required under the PDPO for data users who may change the purpose of personal data as a result of transfer decisions made in Hong Kong that involve international transfers, especially when moving personal information outside the EEA.
In such cases, data users are obliged to inform data subjects of both their intended use of their personal data as well as those to whom it may be transferred. Data users must also obtain the voluntary and express consent of those they transfer personal data from Hong Kong, which may present some difficulties for businesses when considering options for transferring this sensitive data. At times of complexity and multiple requirements to satisfy, compliance with PDPO may prove more challenging. Therefore, it is advisable to seek legal advice prior to initiating any data transfer from Hong Kong in order to reduce risks and ensure efficient compliance.