Legal Assistance

After the Privacy Commissioner has concluded the complaint, if the complainant intends to claim compensation from the data user concerned, he/she may apply for legal assistance from the Commissioner by filling out the “Application Form for Legal Assistance” available here.

The complainant is responsible for providing accurate and complete information to support his/her application. The application for assistance may be rejected if the applicant submits information that is false, incomplete or misleading.

In general, an aggrieved individual will be barred from instituting proceedings against the data user concerned after the expiration of six years from the date on which the cause of action is accrued¹, that is, six years from the time when the wrongful act in question was committed.

1. As the Ordinance does not specify a time limitation for action instituted under section 66, the Limitation Ordinance (Cap 347) will apply.

Section 66B(2) of the Ordinance provides that the Privacy Commissioner may grant legal assistance if the Commissioner thinks fit to do so. In exercising the discretion to approve an application for legal assistance, the Commissioner will consider relevant factors, including:

1. whether the case concerns a question of principle, that is:
   • whether the case involves an issue of legal uncertainty that ought to be resolved through legal action;
   • whether the case raises grave personal data protection implications; or
   • whether the case would establish useful precedents for the development of the domain of privacy law;
2. whether it is unreasonable to expect the applicant to deal with the case unaided, having regard to, among other things, the complexity of the case or the relative positions of the applicant and the prospective respondent or another person involved (e.g., the applicant is an individual while the prospective respondent is a large corporation);
3. the merits of the case (i.e., whether the applicant has a reasonable claim and prospect of success);
4. whether an efficacious remedy could be obtained;
5. the attitude and conduct of the applicant during the complaint handling process (e.g., whether the applicant was cooperative during the conciliation and investigation processes or whether the applicant has unreasonably refused to accept reasonable offers of settlement);
6. whether other forms of assistance (e.g., legal aid granted by the Legal Aid Department) are available and provided to the applicant;
7. whether the case can effectively enhance and sustain public awareness on personal data privacy issues;
8. whether legal assistance has been granted by the Commissioner in other similar cases;
9. whether there are any ongoing investigations conducted against the prospective respondent by the PCPD or another law enforcement agency (e.g., a specified investigation by the PCPD or a criminal investigation by the Police for suspected offences under the Ordinance);
10. resources allocated by the Administration for the legal assistance scheme.

As specified under section 66B(2) of the Ordinance, the Privacy Commissioner must take into account factors (a) and (b) when considering an application for legal assistance, and may also consider other relevant factors, such as (c) to (j), in exercising the Commissioner’s discretion.

If the case involves one or more alleged criminal offences under investigation by law enforcement agencies, the relevant application for legal assistance may be refused or suspended pending the outcome of the investigation.

After having considered the various factors detailed above, the Privacy Commissioner may decide to grant or refuse an application for legal assistance, and will notify the applicant of the decision in writing. If the application is refused, the reason(s) for refusal of assistance would also be included in the notice.

Scope of legal assistance

If the Privacy Commissioner decides to grant assistance, the applicant will be asked to sign an agreement that sets out the terms and conditions (“Terms and Conditions”) under which legal assistance will be provided.

The scope of the legal assistance will be determined on a case-by-case basis and specified in the Terms and Conditions. The scope may include:

1. providing legal advice on the merits of the claim;
2. taking any steps preliminary or incidental to legal proceedings;
3. taking any steps in arriving at or giving effect to a compromise to avoid or bring to an end any legal proceedings, including but not limited to mediation; or
4. representing the assisted person in legal proceedings.

The assistance may be rendered through the PCPD’s legal staff or external lawyers engaged by the PCPD on the assisted person’s behalf.

Alternative dispute resolution mechanisms

The PCPD encourages parties to negotiate settlement out of court through alternative dispute resolution mechanisms (including mediation) before resorting to litigation. If the matter in dispute cannot be resolved by way of an amicable settlement after taking all necessary steps, the assisted person may consider instituting legal proceedings.

• Mediation is a structured process comprising one or more sessions in which one or more impartial mediators assist the parties in (a) identifying the issues in dispute; (b) exploring and generating options; (c) communicating with each other; and/or (d) reaching an agreement regarding the resolution of the whole, or part, of the dispute. Mediators do not adjudicate a dispute or any aspect of it.

In most cases, the legal assistance rendered by the PCPD will first explore the possibility of resolving the dispute by way of alternative dispute resolution, for the following reasons:

• Efficiency: disputes can be resolved more quickly and at a lower cost than traditional court proceedings.
• Confidentiality: the negotiation process and settlement terms are generally private and confidential.
• Flexibility: the processes of negotiation and mediation are flexible and informal. Parties can reach their own agreements without the restrictions of court proceedings.

At any stage of the provision of legal assistance, the Privacy Commissioner may exercise absolute discretion to review the decision to grant assistance in any of the following circumstances:

1. the claim for compensation does not have a reasonable prospect of success (e.g., due to the availability of evidence and/or information that undermines the merits of the case);
2. any material changes of circumstances in the case that may undermine or nullify any of the determining factors for granting the application set out in Part III above (e.g., the prospective respondent cannot be located, the prospective respondent company goes into liquidation);
3. the assisted person knowingly omits to disclose material information or gives false, incomplete or misleading information to the Commissioner, her delegates or external lawyers (e.g., the assisted person fabricates or deliberately omits certain facts of the case due to a personal grudge against the prospective respondent);
4. the assisted person fails, without any just cause, to observe the Terms and Conditions of the legal assistance;
5. the assisted person fails, without any just cause, to comply with requests from the Commissioner, her delegates or external lawyers for information or comments (e.g., the assisted person, without just cause, fails to provide material information about the case, resulting in the claim not being properly proceeded);
6. the assisted person fails, without any just cause, to act in accordance with the advice given by the Commissioner, her delegates or external lawyers (e.g., the assisted person refuses to accept offers of settlement);
7. the assisted person exhibits unreasonable conduct towards the Commissioner, her delegates or external lawyers (e.g., use of violence, abusive language or a hostile attitude); or
8. other circumstances as the Commissioner thinks fit.

If the Privacy Commissioner decides to discontinue the provision of assistance, the Commissioner will notify the assisted person in writing, highlighting which of the above circumstances apply to the case.

If the Privacy Commissioner refuses to grant or discontinues legal assistance, the Commissioner may exercise discretion to review such a decision. The decision resulting from the review is final.

Refusal of Legal Assistance

A request for review may be made by the applicant only when there has been a material change of circumstances in the case. The applicant should set out the details of the change of circumstances and provide supporting evidence.

The Privacy Commissioner may decide to review the refusal to grant legal assistance upon receiving a written request from the applicant. The applicant will be informed of the Commissioner’s decision in writing.

Discontinuance of Legal Assistance

A request for a review of the decision to discontinue legal assistance may be made in writing by the assisted person. The assisted person should set out in the request why he/she believes that the decision to discontinue legal assistance should be reconsidered and should provide supporting evidence. The assisted person will be notified of the Commissioner’s decision in writing.

Subject to the Terms and Conditions, the PCPD will normally bear the expenses for legal assistance and the costs of legal proceedings (if the scope of legal assistance includes legal proceedings). However, in the event that the assisted person is ordered by the Court to pay the costs of the respondent or other parties in the legal proceedings, the PCPD will, in general, not bear the assisted person’s liability to pay such costs if he/she has acted in an unreasonable manner leading to such an order being made against him/her.

If the assisted person is successful in his/her claim for compensation and in recovering the costs and expenses related to his/her claim, the Privacy Commissioner has a first charge on such costs or expenses payable by other persons to the assisted person (i.e., the payment will first be used to settle the PCPD’s legal costs or expenses). The first charge does not encroach upon any compensation obtained by the assisted person in the claim.

The Privacy Commissioner’s first charge is, however, subject to the first charge of the Director of Legal Aid where legal aid has been granted.

Under what circumstances can I claim compensation for infringement of my personal data privacy right?

If you suffer damage by reason of a contravention of a requirement under the Ordinance by a data user, you may make a civil claim for compensation from that data user for that damage. The kind of damage concerned may be or include injury to feelings.

From whom can I ask for legal assistance in lodging a civil claim?

An application for legal assistance may be made to the Privacy Commissioner.

What types of legal assistance can be provided by the Privacy Commissioner?

The legal assistance that the Privacy Commissioner may provide takes the form of, for instance, legal advice, mediation, and/or representation in legal proceedings. The legal assistance may be rendered through the PCPD’s legal staff or external lawyers engaged by the PCPD on your behalf.

How and when to apply?

You normally have to lodge a complaint against the relevant data user with the Privacy Commissioner first before applying for legal assistance. The Privacy Commissioner will ascertain whether the nature of the act complained of falls within the ambit of the Ordinance, and if so, whether the complaint is substantiated based on the information gathered in the course of handling the complaint. You should therefore provide all relevant information to the Privacy Commissioner during the complaint handling process. For information on the PCPD’s complaint handling procedures, please refer to the Complaint Handling Policy.

You may lodge an application for legal assistance after the Privacy Commissioner has concluded the complaint. All applications for legal assistance must be made on the PCPD's Application Form. Upon receipt of your application, the Privacy Commissioner will assess the information provided and decide whether legal assistance should be granted.

What is the time limit for making a civil claim?

The time limit for making a civil claim on privacy infringement under the Ordinance is normally six years from the time when the wrongful act in question was committed. You have to act swiftly in order not to lose your legal right of action.

How long does it take to process an application?

Normally, you will be informed of the result of the application within three months after you have submitted all the relevant information for the application. If a decision on your application cannot be made within three months, you will be kept informed of the position.

If the Privacy Commissioner decides to offer legal assistance, you will be asked to sign an agreement which sets out the Terms and Conditions under which legal assistance will be provided. You should read all the terms and conditions carefully before accepting the legal assistance.

If the Privacy Commissioner refuses your application, you will be notified in writing with the reason(s) for refusal included in the notice.

What will the Privacy Commissioner consider in deciding to grant or refuse legal assistance?

The Privacy Commissioner may grant legal assistance if the Commissioner thinks fit to do so, in particular, if the case raises a question of principle; or it is unreasonable, having regard to the complexity of the case and your position in relation to the relevant data user, to expect you to deal with the case unaided.

What can I do if my legal assistance application is refused?

There is no right of appeal under the Ordinance against the Privacy Commissioner’s decision to refuse an application for legal assistance. However, if there is any material change of circumstances, the Commissioner may exercise discretion to review the refusal upon request.

A request for review has to be made in writing setting out clearly what the material change of circumstances is (for example, subsequent discovery of new evidence that may affect the outcome of the case) and providing the supporting evidence. The Commissioner will, after review, inform the applicant of her decision in writing. The decision resulting from the review is final.

Do I need to pay for the legal assistance?

The PCPD will normally bear the legal costs of providing legal assistance to you. But in the event that you are ordered by the Court to pay the costs of the defendant or other parties in the legal proceedings, the PCPD may not cover your liability to pay such costs if you have acted in an unreasonable manner leading to an adverse costs order being made against you.

If you are successful in recovering the costs and expenses related to your claim, the PCPD has a first charge on any costs or expenses which are payable by other persons to you (i.e. the payment will first be used to settle the PCPD’s legal costs or expenses). The first charge does not encroach upon the compensation you obtain in the claim.

Are there other alternatives to the PCPD’s legal assistance?

If your application for legal assistance is not successful, you can still consider taking legal action in person or by engaging lawyers in private practice, or applying for legal aid from the Legal Aid Department.

What if I have made a false statement to the Privacy Commissioner?

If you make any false statement in order to obtain legal assistance, the Privacy Commissioner will terminate the legal assistance and take whatever actions the Commissioner considers appropriate against you.

For enquiries, please contact :-

Office of the Privacy Commissioner for Personal Data, Hong Kong
Enquiry Hotline : (852) 2827 2827
Fax : (852) 2877 7026
Address : Unit 1303, 13/F, Dah Sing Financial Centre, 248 Queen’s Road East, Wanchai, Hong Kong
Website : www.pcpd.org.hk
Email : communications@pcpd.org.hk