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Review
of the Personal Data (Privacy) Ordinance
Since
1998, the PCPD has been involved in discussions with relevant government
departments and policy bureaux regarding possible amendments to
the Ordinance. The amendment proposals made to date are deemed necessary
to alleviate difficulties experienced in applying the requirements
of the Ordinance and to enhance the overall effectiveness of data
privacy protection in Hong Kong. During the reporting period, all
amendment proposals have been reviewed. Based principally on needs
and regulatory efficiency, the Privacy Commissioner felt that priority
should be given to the following proposals.
Offence
Investigation and Prosecution Power
The
existing provisions of the Ordinance do not provide the Privacy
Commissioner with the power to undertake investigations into suspected
offences and, where appropriate, institute prosecution actions in
relation to those offences. Investigation of criminal offences under
the Ordinance is currently referred by the PCPD to the Hong Kong
Police, subject to the consent of the complainant. After completion
of an investigation by the Police, the case may then be referred
to the Department of Justice who consider its merits and whether
to proceed with a prosecution. The arrangement with the Hong Kong
Police and the Department of Justice commenced in 1998 with an understanding
that it was a temporary measure pending amendments to the Ordinance
that would give the necessary powers to the Privacy Commissioner.
It should be noted that there has been growing public demand for
the Privacy Commissioner to exercise more stringent enforcement
against intrusion upon personal data privacy. To respond to the
demands of the community, it is desirable to expedite the legislative
process with a view to conferring powers upon the Privacy Commissioner
that would enable him to investigate and prosecute offences.
The
45-day Period to Refuse to Carry out or Continue an Investigation
under s.39(3)
Under
section 39(3), the Privacy Commissioner may decide not to proceed
with the investigation of a complaint or to discontinue it. Where
he elects to do this, he is required to give notification of refusal
to the complainant within 45 days from the date of receipt of the
complaint. In the past, the PCPD has experienced difficulties in
complying with the 45-day period requirement. These difficulties
arise either because of the time taken by the complainant to provide
essential information or because the party complained against delays
a response. From time to time, complainants have challenged the
legality of the Privacy Commissioner's decision to refuse investigation
after the 45-day period has elapsed . Until an authoritative view
has been formed, it is expected that more legal proceedings on the
matter will be instituted. It would therefore be beneficial to pass
an amendment extending the current 45-day period so as to avoid
unnecessary litigation in future.
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