Tuesday, 30 October 2012

Hong Kong Updates- Personal Data (Privacy) Amendment Ordinance

The Personal Data (Privacy) Amendment Ordinance enters into force on 1st October 2012. One aspect which has received little attention so far, but which impacts service providers, (e.g. of payroll support or IT services), in Hong Kong like ourselves is the obligation on the part of the original data user (i.e. the employer) when engaging service providers. 

The new definition of data user includes, for example, payroll service providers, IT consultants and so on. In other words, agents are now defined as data users.

Previously, (i.e. before the new Ordinance), a data user was generally liable for the acts of the agents it engaged. There was no escape route for the data user from the wrongful acts of its agent.

Under the new Ordinance, there are express requirements for a data user to ensure its agents are in compliance with the Data Protection Principles (DPPs) through “contractual or other means” to prevent, for example, unauthorised access to or transfer of data wherever the data processor is based (i.e. it is not restricted to Hong Kong). However, although there is still no escape route for the original data user from his obligations, the agent (such as the payroll provider) can now also be liable to any individual for loss or misuse of data. A data user may also (recommended by the Privacy Commissioner) require a contractual indemnity from the agent for any such breaches thereby giving himself an effective escape from the DPPs.

Furthermore, a data user should have a reasonable defence under the new legislation if it can demonstrate that it has taken all reasonably practicable steps to ensure it complies with such requirements by carefully selecting reputable data processor such as Primasia Corporate Services Limited as its service provider and by including the necessary safeguards in its contract with the provider.

Primasia will post the updates of Hong Kong and China from time to time. Follow us on our WebsiteBloggerLinkedIn and stay tunned for our updates!
Need more information?
Please contact:
John Barclay -Email
Teresa Tam - Email 
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Primasia Corporate Services Limited
Tel: +852 2882 2088
Suite 1106-08, 11/F., Tai Yau Building, No. 181 Johnston Road, Wanchai, Hong Kong

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