Date:12 February 2020
Privacy Commissioner Responds to Privacy Issues Arising from Mandatory Quarantine Measures
In response to media enquiries about the use of video calls by the Government to ensure compliance by persons under quarantine with the requirement to remain at the specified locations, the office of the Privacy Commissioner for Personal Data (PCPD) makes the following general observations from the perspectives of the Personal Data (Privacy) Ordinance (PDPO):
The Privacy Commissioner for Personal Data (Privacy Commissioner) notes that:
In order to effectively implement the mandatory quarantine measures, the location data of persons under quarantine would be collected by the Government so as to monitor whether they are complying with the quarantine conditions. The personal data is collected for a lawful purpose and the data collected is not excessive for such purpose. The location data collected may involve individuals’ places of residence where a high degree of privacy is expected. That being said, those places are also specified locations where quarantine is carried out in accordance with the quarantine order. Therefore, for the interest of the persons under quarantine and the general public, the health officers are duty-bound to check whether those persons under quarantine are remaining at the specified locations. The Prevention and Control of Disease Regulation (Cap 599A of the Laws of Hong Kong) also states that a health officer may subject persons under quarantine or isolation to such conditions as the health officer may specify.
Before the quarantine measures were implemented, the authority has obtained consent from the persons under quarantine in accordance with the law for access to their relevant personal data, including the situation of the quarantine premises, and for the usage of commonly-used mobile applications and imaging equipment. These functions can only be activated by the persons under quarantine, who have a free choice as to what circumstances these functions would be activated, and whether the requisite information would be provided via other means.
Section 59 of the PDPO provides that situations involving health concern relating to the interests of the public may be exempt from the restrictions on the use of data. Section 59(1) of the PDPO states that in circumstances where the application of the restrictions on the use of data would be likely to cause serious harm to the physical or mental health of the data subject or any other individual, the data user may disclose personal data relating to the physical or mental health of the data subject to a third party without the consent of the data subject (exemption for Data Protection Principle 3).
“Right to life” of individuals (i.e. i) Article 2 of Part II of the Hong Kong Bill of Rights Ordinance; ii) Article 6 of the International Covenant on Civil and Political Rights (ICCPR)) means that every human being has the inherent right to life. This right is absolute and precedes other countervailing interests, including privacy right. The right to life refers not only to the right of life of the data subject, but also to the right to life of others in society. This right is particularly important in epidemics. The United Nations also issued its general comment on the “right to life” under the ICCPR in October 2018, stating that right to life is a supreme right. The duty to protect life implies that governments should take appropriate measures to address the general conditions in society that may give rise to direct threats to life (including the prevalence of communicable diseases).
As of 6:00pm on 11 February 2020, the PCPD has not received any complaint about mandatory quarantine measures.