PCPD - 2002-2003 Annual Report

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2002-2003 Annual Report_16

Legal

Review of Proposed Legislation

By virtue of section 8(1)(d) of the PD(P)O, the Privacy Commissioner is required to examine any proposed legislation that he considers may affect the privacy of individuals in relation to personal data, and to report the results of his examination to the person proposing the legislation. To enable the Privacy Commissioner to carry out this function, all Policy Bureaux of the Hong Kong SAR Government have been asked to ensure that legislative proposals that may affect privacy in relation to personal data are notified to the PCPD at an early stage. In addition to reviewing proposed legislation notified to the PCPD in this way, the Legal Division of the PCPD reviews all Bills published in the Government Gazette for possible personal data privacy implications on which comments may be required.

During the reporting period, the PCPD raised enquiries or made comments on 9 pieces of proposed legislation. Summaries of the PCPD's comments on the proposed legislation are given in Appendix II.

Review of the Personal Data (Privacy) Ordinance

During the reporting period, the Law Draftsman prepared a working draft of drafting instructions regarding the Personal Data (Privacy) Amendment Bill. Further discussions took place between the PCPD, the Home Affairs Bureau and the Department of Justice on specific issues. At the end of the period under review, no legislative slot had been secured with the Legislative Council, but the intention was to secure the earliest slot possible once the draft Bill is ready. The aim of the Amendment Bill is to address some of the practical difficulties encountered by the PCPD in the application of certain provisions of the PD(P)O with a view to enhancing its overall effectiveness. The amendments being discussed, however, are all considered to be of a "technical" nature in that they do not touch upon any fundamental concepts. As for other possible amendments of a fundamental nature, these will be left for further study in an overall review of the PD(P)O to be conducted at a suitable stage in the future.

Notes on the PCPD's Interpretation of the PD(P)O

As mentioned in the 2001-02 annual report the PCPD is in the course of preparing a booklet that contains notes on its interpretation and application of the requirements of the PD(P)O. The booklet is titled "An Analysis of the Core Provisions of the Personal Data (Privacy) Ordinance".

The PCPD believes it is beneficial to publish this booklet and share with data users its operational stance and regulatory philosophy that have evolved through applying the provisions of the PD(P)O to complaint and enquiry cases brought before it. In discharging its regulatory function, the PCPD has developed its own interpretation of the relevant provisions of the PD(P)O, which it seeks to apply consistently to all cases handled by it. Insofar as data users, or their legal advisors are concerned, such views are obviously useful from the practical point of view although the Privacy Commissioner is not empowered under the PD(P)O to give any definitive interpretation to the provisions of the PD(P)O.

A draft of the booklet has been prepared. The PCPD wishes to enrich the contents of the booklet to include explanations on the application of the exemption provisions of the PD(P)O. It is planned that the booklet will be published for sale before the end of 2003.

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