(AAB APPEAL NO.21/2019)
Property manager – collection of personal data by unlawful or unfair means – data subject’s consent – new purpose – pre-action letter
Dr Lo Pui-yin (Presiding Chairman)
Mr Simon Chan Cham-man (Member)
Mr Dick Kwok Ngok-chung (Member)
Date of Decision: 28 April 2020
The party being complained against is a staff of the property manager of the Appellant’s housing estate (“PCA”). The Appellant complained that the PCA used his name and address without his consent for issuing a letter to him regarding a private dispute between them. The Appellant complained to the Commissioner that the PCA collected his personal data by unlawful or unfair means.
The PCA explained that his young daughter was traumatised by the Appellant’s scolding and he might pursue civil action against the Appellant if necessary. Therefore, he issued the pre-action letter to the Appellant after learning his name and address from other residents. During investigation, the PCA confirmed to the Commissioner that he had erased the Appellant’s personal data.
The Commissioner’s Decision
After preliminary enquiry, the Commissioner took the view that the fact that the PCA obtained the Appellant’s personal data from other residents did not constitute unlawful or unfair means of collecting personal data. Besides, the Personal Data (Privacy) Ordinance (“the Ordinance”) did not require data users to obtain prior consent from data subjects before collecting their personal data. Even if the PCA used the data collected in the course of daily property management work for a new purpose, he was exempt by virtue of s.60B of the Ordinance as he used the data for issuing a pre-action letter, i.e. for defending his legal rights. Therefore, the Commissioner decided not to carry out an investigation of the Appellant’s complaint as there was no prima facie evidence of contravention of any requirement under the Ordinance.
Dissatisfied with the Commissioner's decision, the Appellant lodged an appeal to the AAB.
The AAB allowed the Appeal for the following reasons:
The AAB’s Decision
The appeal was allowed and the complaint was remitted for the Commissioner’s investigation.
(Uploaded in June 2020)