Report on Activities - Legal

Review of Proposed Legislation

By virtue of section 8(1)(d) of the PD(P)O, the Privacy Commissioner is required to examine any proposed legislation that he considers may affect the privacy of individuals in relation to personal data, and to report the results of his examination to the person proposing the legislation. To enable the Commissioner to carry out this function, all Policy Bureaux of the Hong Kong Government have been asked to ensure that legislative proposals that may affect privacy in relation to personal data are notified to the PCPD at an early stage. In addition to reviewing proposed legislation notified to the PCPD in this way, the Legal Division of the PCPD also reviews all Bills published in the Government Gazette for possible personal data privacy implications on which comments may be required.

During the period under review, the PCPD raised enquiries or made comments on 5 items of proposed legislation. Summaries of the PCPD's comments on proposed legislation during the reporting period are given in Appendix II.

Review of the Personal Data (Privacy) Ordinance

Mr. Raymond Tang, Privacy Commissioner

Since the PD(P)O came into effect in 1996, the PCPD has in its daily operations occasionally come across practical difficulties stemming from the way in which particular provisions of the PD(P)O have been drafted. In order that such difficulties be alleviated, and the protection of personal data privacy be achieved as effectively as possible, the PCPD has been in discussion with the Home Affairs Bureau regarding possible amendments to the PD(P)O. The amendments being discussed in detail so far, however, are all considered to be of a "technical" nature in that they do not touch on any fundamental concepts. The intention is to keep the proposed amendment bill relatively simple to facilitate its passage through the Legislative Council. As for any other possible amendments of a fundamental nature, these will be left for further study in an overall review of the PD(P)O to be conducted at a suitable stage in the future.

Draft drafting instructions have been sent to the Department of Justice for comment before the period under review. During the period under review, further discussions took place between the PCPD, the Home Affairs Bureau and the Department of Justice on specific issues. At the end of the period under review, no legislative slot had yet been secured with the Legislative Council, but the intention was to secure the earliest slot possible once the draft bill is ready.

Notes on the PCPD's Interpretation of the Personal Data (Privacy) Ordinance

The PD(P)O came into operation in 1996. So far, there have been very few related court cases. Hence, there is a scarcity of judicial precedents on the interpretation of its various provisions. So far as the legal profession and data users are concerned, such scarcity in case law does not assist in their understanding of the PD(P)O, especially in view of the fact that some of the provisions of the PD(P)O, being either complicated or vague, tend to be difficult to understand.

On the other hand, there have been a great number of complaint and enquiry cases under the PD(P)O brought to the PCPD. In the discharge of its functions in handling such complaints and enquiries, the PCPD has over the years developed its own interpretation of the relevant provisions of the PD(P)O, which it seeks to apply consistently to all cases handled by it. In this connection, although the Commissioner is not empowered under the PD(P)O to give any definitive interpretation to the provisions of the PD(P)O, such views are obviously important from the practical point of view, insofar as data users or their legal advisors are concerned.

To help deepen public understanding of the PD(P)O, therefore, the PCPD plans to issue, in the form of a booklet, notes on its interpretation of the requirements of the PD(P)O. During the period under review, a draft of the booklet was prepared, with the aim of publishing it by the end of the calendar year 2002.