Friday, 20 May 2016

Hong Kong Updates- Data Privacy

Hong Kong's Privacy Commissioner has issued two revised sets of guidelines: a new “Code of Practice on Human Resource Management” and a revised “Privacy Guidelines for Monitoring and Personal Data Privacy at Work”, both relating to the application of the Personal Data (Privacy) Ordinance (PDPO”). Their subject matter is self-evident. Let us call them both “guidelines”.

Many people have an incorrect idea of what the PDPO actually says, usually through not having read the Ordinance themselves but relying instead on third-hand interpretations. Hong Kong employers are therefore advised to be familiar with the underlying legislation first and foremost, and to use the guidelines in the context of the legislation itself.

In each case, the guidelines are, strictly speaking, not of direct legal effect. They are intended to give practical guidance to employers and their HR officers. However, where a data user fails to comply with the guidelines, it has been suggested that a court may take this into account to decide whether there has been a breach of the underlying Ordinance.

This does not mean, though, that what is not a breach under the PDPO becomes a breach through non-compliance with the Code; rather that compliance with the Code would operate as a defence against an alleged breach as it would be hard to argue that the Privacy Commissioner’s guidelines were, effectively, wrong.

The revised sets of guidelines can be found here:

Primasia Corporate Services Ltd. can provide support on all employment matters including data privacy issues.

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