DPP4(1)(a) provides that a data user must take all practicable steps to protect personal data by reference to the kind of data and the harm that could result from unauthorised collection. Further information on health data is set out at question 28 below. In accordance with section 26 of the PDPO, data users must take all practicable steps to erase personal data held when the data is no longer required for the purpose which it was used, unless any such erasure is prohibited under law or it is in the public interest not to have the data erased. . 2427356 VAT 321572722, Registered address: 188 Fleet Street, London, EC4A 2AG. Organisations should inform users of the nature of such third-parties, purpose and means of collection, retention period and whether such information collected would be further transferred to other parties by the third party; and. The PDPO also includes provisions prohibiting the transfer of personal data outside Hong Kong (and the transfer between two jurisdictions outside Hong Kong where the data user is in Hong Kong) unless certain conditions are met. where there was a reasonable belief that the disclosure was necessary for preventing or detecting crime; where there was a reasonable belief that the data subject gave their consent to the disclosure; where there was a reasonable belief that disclosure was in the public interest and was made for news activity purposes; and. Further guidance can be found in the PCPDs Guidance for Data Users on the Collection and Use of Personal Data through the Internet. Security measures required to be taken by the data processor to protect the personal data; Timely return, destruction or deletion of personal data when it is no longer required for the purpose it was entrusted to the data processor; Measures to be taken by the data processors, such as policies and procedures and training for staff; and. These cookies will be stored in your browser only with your consent. If personal data of website users is being collected, a PICS must be provided to data subjects (outlined under DPP1(3)). The NCSC sets out general . There is no legal requirement for employers to provide or for employees to undertake training. Although the Chinese government claims that the Cybersecurity Law will help reduce the risk of cyberattacks and . Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The PCPD has published Guidance on the Proper Handling of Customers Personal Data for the Insurance Industry, which provides practical guidance to insurance institutions on complying with the PDPO and DPPs when handling data in their business operation. The PCPD generally has no direct power to sanction a breach of a DPP, although breach of certain provisions of the PDPO (about which see question 37 below) is a criminal offence, punishable by fines and/or imprisonment. This has been exacerbated by the global pandemic, which has forced criminals online, with the number of cases in 2021 representing a 162% increase on the 2020 figure alone. As the organisation engages the third-party to collect or track user behaviour, it is the organisations responsibility to understand from the third-party what information is being collected and the means by which the information is collected. The Circular sets out the SFC's key areas of concern and recommended cybersecurity controls which the LCs are expected to follow. This has highlighted the need for more robust, updated and comprehensive cyber legislation in Hong Kong. An appeal against an enforcement notice issued by the PCPD can be made to the Administrative Appeals Board within 14 days after the notice is served (s.39 of the PDPO). The amendments fall into three categories: The Amendment Ordinance provides new two-tier doxxing offences as follows: Other proposed amendments to the PDPO were not included in the final Amendment Ordinance. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. Master PhD Law . the purposes for which the personal data will be used; whether supplying the personal data is obligatory or voluntary and the consequences for failing to supply obligatory information; the classes of persons to whom personal data may be transferred or disclosed; if applicable, information about the use and/or provision of personal data for direct marketing; and. This can prove difficult in practice since class actions are not permitted in Hong Kong and individual losses may not be sufficient to justify a data subject bringing a claim. This has been exacerbated by the global pandemic, which has forced criminals online, with the number of cases in The PCPD may also carry out proactive inspections of any personal data system for the purpose of making recommendations to a data user (s.36 of the PDPO). Generally, by the PCPD which exercises both investigative and enforcement powers. Provision of Personal Data to a Third Party for Direct Marketing Purposes. Silence cannot constitute consent. New legislation will be passed to patch any remaining holes in the suppression of public . The PCPD has published the Personal Data (Privacy) Ordinance and Electronic Health Record Sharing System (Points to Note for Healthcare Providers and Healthcare Professionals), providing practical guidance to public and private healthcare providers in the handling, accessing and sharing of patients personal data through the Electronic Health Record Sharing System in compliance with the PDPO. The Amendment Ordinance provides for four statutory defences for the two-tier doxxing offences (see question 1 above) including: The PDPO does not impose data protection by design or data protection by default as requirements. This has highlighted the need for more robust, updated and comprehensive cyber legislation in Hong Kong. It will also discuss . Several revisions in China's updated Cybersecurity Review Measures, in effect from February 15, 2022, focus on risks associated with data processing activities and the data security risks arising from Chinese entities listing overseas. While data processors are not subject to the PDPO, data users that use data processors to process personal data on their behalf (or for their purposes) are liable for any violations of the PDPO by the data processor as if they were processing the personal data themselves. Inform users of the types of information that are being tracked and whether any third party is tracking their behavioural information; Offer users a way to opt out of the tracking; and. The PCPD has published Guidance for Mobile Service Operators, providing practical guidance to mobile service operators to comply with the PDPO in their business operations e.g. U Law Hong Kong. The official position of Hong Kong law enforcement authorities is that they do not recommend paying a ransom. The PCPD has recommended that businesses should report a data security breach as part of proper data breach handling. making telephone calls to specific persons. Under the DPPs, data users engaging a data processor (within or outside Hong Kong) must adopt contractual or other means to: The PCPD recommends incorporating additional contractual clauses in service contracts or entering into separate contracts with data processors, that could impose obligations such as keeping records and immediate reporting of any sign of abnormalities or security breaches. The PCPD recommends that organisations conduct yearly risk assessments to ensure their privacy policies comply with the PDPO and privacy impact assessments before launching any new projects, products or services to determine potential privacy risks at an early stage (and make any necessary changes and improvements). In addition to the general requirements of the PDPO, the Electronic Health Record Sharing System Ordinance (Cap. Such notifications are currently voluntary, although the PCPD can take into account whether data breach notifications were given in considering whether a data user has complied with the DPPs (in particular DPP4 data security). However, the PCPD has published certain codes and guidelines regarding the collection and use of certain types of personal data which will require special attention (including Hong Kong identity cards, biometric data and consumer credit data see further question 7 below). Data processors are not directly regulated under the PDPO. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). Hong Kong was always meant to have a security law, but could never pass one because it was so unpopular. The PCPD may conduct an investigation where it (i) receives a complaint on a possible breach of PDPO; or (ii) has reasonable grounds to believe that there may be a contravention of the PDPO (s.38 of the PDPO). Advertisement. Hong Kong, found on the south coast of China, the country is one of the two Special Administrative Regions in the Republic of China. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Selina has studied investigative reporting at the Columbia Journalism School. Violations of the law, with serious consequences may be penalized up to 5% of the prior year's turnover, and/or the ceasing of . Anyone considering their rights and obligations under Hong Kong law should check the status of any proposed amendments. Attorney Advertising: This Content may qualify as Attorney Advertising requiring notice in some jurisdictions. Data protection authority The Office of the Privacy Commissioner for Personal Data www.pcpd.org.hk 3. Please refresh the page and/or try again. The Hong Kong Computer Emergency Response Team (HK Cert) and the Hong Kong Police Force Cyber Security and Technology Crime Bureau (CSTCB), have been established to help victims of cybercrime, but they are not regulators. If cookies are used to collect behavioural information, it is also recommended that a reasonable expiry date for the cookies is pre-set, that the contents of the cookies are encrypted whenever appropriate, and that organisations do not deploy techniques that ignore browser settings on cookies unless they can offer an option to website users to disable or reject the cookies. 625) regulates the collection, sharing, use and safe-keeping of patients health data under the Electronic Health Record Sharing System. This country-specific Q&A provides an overview of Data Protection & Cyber Security Law laws and regulations applicable in Hong Kong. Separately the Chief Executive of the Hong Kong Monetary Authority . There can therefore be more than one Data User in respect of any item of personal data (for example if different group entities use personal data for different reasons). Hong Kong Computer Emergency Response Team Coordination Centre (HKCERT) HKCERT is the centre for coordination of computer security incident responses for SMEs and Internet users, to facilitate information dissemination, provide advice on preventive measures against security threats and promote information security awareness. No. The PDPO therefore adopts an initial implied consent approach. A person considering paying a ransom must check relevant sanctions lists to ensure that the recipient is not a known terrorist organisation or sanctioned person. In terms of the overall legislative framework, the government has indicated that in preparing for the impending cybersecurity legislation, it will refer to relevant legislation around the world and will focus on seven areas: These broad areas will likely translate into compliance obligations for CII operators under the cybersecurity legislation. July 22, 2022. Credit: Depositphotos. Under DPP2, data users must take all practicable steps to ensure that personal data is accurate and is not kept longer than is necessary for the fulfilment of the purpose for which the data is used. Focus on cybersecurity and privacy to achieve your goals. We don't just protect business value, we create it - using cybersecurity and privacy as a tool to transform businesses. Authorities want to strengthen defences against similar incidents. The Insurance Authority has also issued a Guideline on Cybersecurity, which outlines the minimum standards that authorised insurers are expected to meet in relation to the handling of personal data of existing or potential policyholders. the offering, or advertising of the availability, of goods, facilities or services; or. The proposal came a few days after the cybersecurity regulator launched reviews into the data collection practices of three Chinese tech companies that recently listed in the U.S.: Didi Chuxing,. Hong Kong in 2022. Under the New Cybercrime Offences, ransomware would be considered an offence of making available or possessing a device or data for committing a crime. to prevent any personal data being kept longer than is necessary for processing (DPP2(3)) and to prevent unauthorised or accidental access, processing, erasure, loss or use of the data (DPP4(2)). Making available or possessing a device or data for committing a crime. In a typical CEO fraud scam, the scammer would usually get a good working understanding of the company's hierarchy and its money, trade and logistical movement patterns. 200) provides offences related to accessing a computer with criminal or dishonest intent including an offence of obtain[ing] access to a computer with a dishonest intent or objective. 2. The PCPD has prepared a table summarising the various offences under PDPO and their respective penalties. The number of cybercrime reports rose from 2,206 in 2011 to 16,159 in 2021. The past decade has seen a huge increase in the incidents of cyber crime in Hong Kong. The nature of the data and the damage that could result from unauthorised or accidental access, processing, erasure, loss, or use; Any physical security measures available for the equipment storing personal data; Any measures for ensuring the integrity, discretion, and competence of those with access to the data; and. We use cookies on our site to remember you, show you content we think you will like and help you to use the site. There is no mandatory obligation in the PDPO for data users and data processors to keep records of their processing activities. while hong kong has yet to enact specific legislation on cybercrime or cybersecurity, this will soon change with the announcement of the proposal to enact a new cybersecurity law during the chief executive's 2021 policy address (" 2021 policy address ") and the issuance of a consultation paper on "cyber-dependent crimes and jurisdictional issues" The PDPOfocusses on six Data Protection Principles (the DPPs), restricts direct marketing without consent, and establishes the Office of the Privacy Commissioner for Personal Data (the PCPD) as the national supervisory authority. You also have the option to opt-out of these cookies. Scope of this note. The PDPO adopts the key definitions personal data, data subject, data user (not data controller), and data processor: There is no concept of sensitive personal data under the PDPO and there are no additional restrictions specifically imposed with respect to sensitive personal data. The HKSAR government's proposal to enact new cybersecurity legislation and the Consultation Paper's five new proposed cybercrime offences ("New Cybercrime Offences") signify a shift towards adopting a strategy of enhanced protection from both criminal and regulatory perspectives. The Content may contain links to external websites and external websites may link to the Content. Dynamic data inventory. Depending on the section of the PDPO, a person committing an offence may be liable to a fine of up to HKD10,000 HKD1,000,000 (approx. The PCPD is currently reviewing the PDPO with the HKSAR Government with a view to formulating further amendment proposals. Personal Data (Privacy) Ordinance (Cap. While it has yet to be determined which infrastructure or companies are considered critical, they may include public utilities, internet service providers and transport, the sources said. When the PRC Cybersecurity Law was enacted in November 2016, it broadly defined CII the first time. Such developments in the cyberspace stem from Hong Kong's duty under Article 9 of the National Security Law to take necessary measures to strengthen regulation over matters concerning. Cybersecurity. It will consider similar legislation elsewhere such as in mainland China, which implemented cybersecurity laws in 2017, and Macau, which brought in a law in 2019. Section 66 of the PDPO provides that a data subject may commence civil proceedings against a data user who contravenes the PDPO to seek compensation if they can show that the contravention caused damage. The PCPDs Guidance on Data Breach Handling and the Giving of Breach Notifications explains that a security breach is generally taken to be a suspected breach of data security of personal data held by a data user, exposing the data to the risk of unauthorised or accidental access, processing, erasure, loss or use and may amount to a contravention of DPP4(1) and (2). This has been exacerbated by the global pandemic, which has forced criminals online, with the number of. The PDPO contains specific provisions restricting cross-border transfers of personal data, but these have never been brought into force. Personal Data (Privacy) (Amendment) Ordinance 2021. This website uses cookies to improve your experience while you navigate through the website. Anyone considering their rights and obligations under Hong Kong law should check the status of the proposed amendments. As noted in question 20 above, there are no restrictions on online tracking for advertising or marketing purposes. Support HKFP | Code of Ethics | Error/typo? Your organization can face government investigations, media attention, customer demands, and litigation - circumstances that require careful yet rapid response. The local cybersecurity legislation may potentially adopt the concept of "critical information infrastructure operators" under the PRC's national Cybersecurity Law, who are subject to heightened security measures such as undergoing national security review when purchasing network products and services that may impact national security, and storing personal information and critical data within the territory. 25/1999, a hospital was found to have breached DPP1(3) by failing to take all reasonably practicable steps to bring the PICS to the attention of its private patients (finding that a notice displayed in the waiting room was not prominent enough). it is not supplied with enough information to locate the applicable personal data; the request is not made in writing in Chinese or English; the request follows two or more similar requests and it is unreasonable for the data user to comply with the request; (concerning data access requests) the request is not made on the specified Data Access Request Form; (concerning data correction requests) the data user is not supplied with information as it may reasonably require to ascertain the relevant personal datas inaccuracy, or that the correction is accurate; or. Offences of a less serious nature may be dealt with summarily with a jail term of two years or less. The PDPO places detailed prescriptions on the manner in which personal data can be used for direct marketing, the information that a data user must provide to the data subject in order to be able to use the personal data for direct marketing, and the express prior consent that the data user must obtain from a data subject in order to be able to use personal data for direct marketing purposes. Increased maximum sentences The maximum sentence under most of the New Cybercrime Offences is 14 years, as opposed to the present range of two to 10 years' imprisonment for existing offences. China's Cybersecurity Law, which is thus far the most important internet legislation to be passed in the country, came into effect on June 1, 2017. However, these provisions have never been brought into effect. If the data subject subsequently requires the data user to stop using his personal data for direct marketing purposes, the data user must immediately stop that use (s.35G of the PDPO). on subsequent convictions a fine of up to HKD100,000 and imprisonment for up to 2 years, and a daily penalty of HKD2,000 if the offence continues; a data user failing to comply with the requirements of the PCPD in exercising its powers under the PDPO is liable to a fine of up to HKD10,000 and imprisonment for up to 6 months (s.50B, PDPO); and. Click 'Accept' to consent to cookies other than strictly necessary cookies or 'Reject' if you do not. The exemptions applicable in each circumstance are different, and it is advisable to review the table published by the PCPD summarising the exemptions. The offence is punishable by a fine of HK$20,000. Copyright 2022 Baker & McKenzie. It is potentially sensitive data, and any disclosure could lead to harm to the data subject. law Hong Kong businesses with interests in the mainland of China should closely monitor recent developments to To embed, copy and paste the code into your website or blog: Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: [HOT] Read Latest COVID-19 Guidance, All Aspects [SCHEDULE] Upcoming COVID-19 Webinars & Online Programs, [GUIDANCE] COVID-19 and Force Majeure Considerations, [GUIDANCE] COVID-19 and Employer Liability Issues. Something went wrong. If it is not possible to opt out of tracking while using the website, explain why this is not possible so that website users can decide whether to continue using the website. Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. Hong Kong's higher education is placed in the England's structure as well as international systems. Putting in place a comprehensive incident response plan. by way of background, china's cybersecurity law 1 for the first time raised the requirement of cybersecurity review for critical information infrastructure operators' (the " ciio ") activities of purchasing network products and services, which may influence national security. Cybersecurity Law, GDPR and Data Ethics Cloud Expo Asia, Hong Kong 2018 Hong Kong Convention and Exhibition Centre 16.05.2018 Stephen Kai-yi Wong, Barrister . Some jurisdictions by HKFP to identifiable persons any disclosure could lead to harm to the use personal Or enter keywords for an advanced search on CIIs the form in which access to or of! Exchange, the data user is a person who makes a substantive decision as to how to an Question 23 below by opinion writers and advertisers are not necessarily shared by HKFP specific application a 2021, the PCPD uses the term in its guidance Cybercrime reports rose from 2,206 in 2011 16,159! 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