Review of the Ordinance
A decade has passed since the Ordinance came into force on
20 December 1996. The rapid technological and e-commerce
developments that are taking place in this electronic era and the
exponential rate with which it continues to progress give rise to global
privacy concern.
Overseas governments and privacy regulators see a pressing need for
reviewing and reforming the privacy law in order to safeguard the
personal data privacy interests of the individuals. Australia, Canada,
New Zealand and the United Kingdom all embark actively on the
review of their laws. The international privacy arena has clearly
witnessed a call for higher level of personal data privacy protection
and stronger sanction and legislation to properly address the privacy
impact brought about by technological advancements.
Personal data privacy has been an evolving concept responding to
changes and development in society. The Commissioner sees the
core value of balancing the personal data privacy right with other
rights and social interest in maintaining a harmonious society.
With a decade of regulatory experience gained in discharge of his
regulatory duties and without losing sight of the macro international
privacy perspectives that are taking shape, the Commissioner finds
it appropriate and timely to conduct a comprehensive review of the
Ordinance. With these objectives in mind, an internal Ordinance
Review Working Group was formed in June 2006 to assess
the adequacy of the protection rendered to personal data privacy by
the Ordinance.
In the course of his review of the Ordinance, the Commissioner has
taken into account the following factors:-
| (a) |
the sufficiency of protection and the proportionality of penal
sanction under the Ordinance; |
| (b) |
the development of international privacy laws and standards
since the operation of the Ordinance; |
| (c) |
the regulatory experience of the Commissioner gained in the
course of discharging his functions and powers; |
| (d) |
the difficulties encountered in the application of certain
provisions of the Ordinance; |
| (e) |
the technological development in an electronic age facilitating
the collection, holding and processing of personal data in
massive quantum at a low cost; |
| (f) |
the development of biometric technology for the identification
of an individual posing challenges to the maintenance of
individuals' privacy; and |
| (g) |
the vulnerability of individuals in becoming less able to control
and determine the collection, use and security of his personal
data stored and transmitted through electronic means. |
The Commissioner has five missions to achieve in undertaking the
review exercise. They are: -
| (1) |
To address issues of public concern. |
| (2) |
To safeguard personal data privacy rights while protecting
public interest. |
| (3) |
To enhance the efficacy of regulation under the Ordinance. |
| (4) |
To harness matters that will have significant privacy impact. |
| (5) |
To deal with technical and necessary amendments. |
The subjects reviewed by the Commissioner include, amongst others,
the following: -
- scope of personal data
- leakage of personal data on the Internet
- disclosure of personal data by Internet or email service
providers
- handling of personal data in times of crisis
- prescribed consent given by individuals
- data access request
- direct marketing activities
- exemptions
- investigation and prosecution procedures
- enforcement and penalty level
- transborder data flows
The Commissioner has since then presented to the Secretary for
Constitutional and Mainland Affairs 52 amendment proposals and
3 additional issues of privacy concerns.
While engaging in a series of discussions with the Secretary for
Constitutional and Mainland Affairs on the amendment proposals,
the Commissioner is confident that a comprehensive review of the
Ordinance with participation by the general public will bring about an
updated piece of privacy legislation that amply protects and enforces
personal data privacy right in Hong Kong.
|
Notice/
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