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Section 61(1) also has the effect of circumscribing the Commissioner’s powers of

inspection and investigation. The Commissioner has no power of inspection of any part

of a personal data system that holds such information for the purpose of news activity

(section 61(1)(ii)). Furthermore, the Commissioner can only investigate a suspected

contravention of the provisions of the Ordinance after the material that is the subject of

the complaint has been published or broadcast (section 61(1)(i)) and only when he

receives a complaint under section 38(a).


In AAB No. 34/2007, the appellant submitted a request to a newspaper for copies of

emails from a person who provided comments regarding the appellant that were

reported in the newspaper. The appellant argued that in order to ascertain whether the

requested data was published or unpublished, all the contents of the requested data

must be disclosed. The AAB rejected the argument and made the following comments:

We believe this argument may have force if the Appellant may be able to demonstrate which

part of the Article would have the effect as submitted. There is always a minimum threshold

which the Appellant must show, at the least, that there is a prima facie case that there could

be a reference in the published part to unpublished data, or somehow published and

unpublished data are intertwined. To argue that there was a possibility of cross-reference or

intertwining that would give rise to possible confusion is to argue in a vacuum. The logical

extension of such argument would be that, . . . , all the contents of the email correspondence,

whether or not their contents had not been published (and in the latter case should not be

disclosed under the Section 61 exemption), must be disclosed otherwise the Commissioner nor

the Appellant would not know if there had been any reference to an overlapping situation.

This amounts to a submission that there can be no exemption under Section 61(1). We cannot

accept such submission.


It is nevertheless worth noting that this exemption does not exempt from application the

other data protection principles, with which the data user is still obliged to comply, in

particular, DPP1(2), i.e. collection of personal data by lawful and fair means.


Where a

code of ethics


is in place, the press shall observe and follow it when collecting and

using materials gathered for news reporting.

Section 62 — Statistics and Research


Section 62 is comparatively easy to understand and of practical importance in

exempting personal data from being used for preparing statistics or carrying out

research. The value to be served by compiling statistics or conducting research is self-



Reference is made to the use of long-focus lenses to take photographs of the home activities of artistes where privacy

was reasonably expected: Investigation Reports Nos. R12-9159

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also AAB No. 5 & 6 of 2012, available on the Website.


See the Joint Code of Ethics issued by the Hong Kong Journalists Association.