1.    The Privacy Commissioner for Personal Data (the “Commissioner”), Mr. Allan Chiang, attended the meeting of the Legislative Council Panel on Financial Affairs today (27 June 2011) and clarified the role of the Office of the Privacy Commissioner for Personal Data (“PCPD”) in the Government’s proposed scheme (“the Scheme”) to give a sum of $6,000 to each Hong Kong Permanent Identity Card holder aged 18 or above.

 

2.    Mr. Chiang said, “PCPD’s main participation in the Scheme was to consider the Government’s proposed matching of the personal data provided by the registrants of the Scheme with the relevant records held by the Immigration Department for the purpose of establishing the registrants’ eligibility. Pursuant to section 30(1) of the Personal Data (Privacy) Ordinance (“the “Ordinance”), the Commissioner has on 14 June 2011 given his consent for the matching procedure.”

 

3.    “PCPD has also been involved in some general exchanges with the Government on the implementation of the Scheme with a view to assisting the Government to comply with the requirements under the Ordinance. However, PCPD has not been involved in designing the implementation arrangements or exploration of alternatives, including the use of the Government’s existing payment system such as the system for disbursing Comprehensive Social Security Assistance (“CSSA”) and Social Security Allowance (“SSA”). Such involvement, which is tantamount to providing legal advice and endorsement to data users, is inappropriate as it conflicts with PCPD’s role to enforce the Ordinance as an independent statutory body.”

 

4.    Notwithstanding the above, for the purpose of responding to the question of whether the existing payment systems can be used, Mr. Chiang explained the requirements under the Ordinance as follows, “The use of existing payment systems involve the use of personal data previously collected from the payment recipients such as bank account details. Under Data Protection Principle 3 (“DPP3”) of the Ordinance, such use of personal data, unless consented by the recipients, is only permissible if the purpose of the Scheme is the same as or directly related to the original purpose of collection of the data. As the original purpose of data collection is for the Government to provide CSSA and SSA, both being social welfare in nature, the critical question before us is: what is the purpose of the handout of $6,000? The Government’s paper mentions about “leave wealth with the people”. If this is meant to be social welfare or includes the meaning of social welfare, the requirement under DPP3 will be met. In short, the answer depends on the nature of the $6,000 as viewed by the Government.”

 

5.    In response to suggestions from some commentators that the Ordinance is too rigid and the Commissioner should consider applying the law with flexibility, Mr. Chiang said, “DPP3 conforms to the international privacy standard. In a society which treasures the rule of law as one the cornerstones of Hong Kong’s way of life, it is essential that I apply the law consistently, not to suit the convenience of individual circumstances. Unless there are legislative exemptions, I have no discretion to deviate from the law.  In this regard, I should mention that as part of the current Ordinance overhaul, the PCPD has submitted to the Government a proposal to provide a case-by-case exemption from the DPPs for the use of personal data on grounds of public interests. After public consultation, the Government has decided in October 2010 not to pursue the proposal.”

 END