In Hong Kong, a data user must expressly inform the data subject on or before the original collection of personal data that personal data may be transferred to a third party in a class of persons specified in the notification (DPP 2(3)). A requirement to adopt contractual or other means to prevent personal data transferred from the data exporter to a data processor within or outside Hong Kong from being kept longer than is necessary for processing (DPP 4(2)). A statutory recognition that a data user is responsible and liable for the acts of his agents, including those of data processors located outside Hong Kong (section 65, PDPO).
The PDPO also contains an exception which allows personal data to be exported to countries with laws similar to the PDPO. This exception is subject to various conditions, including the requirement that personal data be transferred for a specified purpose and that the prescribed consent of the data subject be obtained. This is a significant departure from GDPR which requires the explicit consent of the data subject for any change in the use of personal data (DPP 3).
Although this does not necessarily preclude Hong Kong companies from engaging in cross-border transfer of personal data, it makes it more difficult for such transactions to take place and raises the bar for compliance. It is also a major departure from the business views of many stakeholders who were keen to see increased cross-border data flow as a vital part of Hong Kong’s economic success and whose fundamental view was that in the context of Hong Kong’s extensive international trade activities, there was no evidence that such transfers undermined personal data privacy.
Consequently, the PCPD has moved away from implementing section 33 as a clear policy objective and instead emphasised that there is a strong balancing act between the right to free movement of data and the protection of the rights of individuals. The balancing act is achieved by a requirement for a data exporter to obtain the prescribed consent of the data subject before transferring their personal data to third parties in a specified class of persons.
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