Under what circumstances can I claim compensation for infringement of my personal data privacy right?
If you suffer any damage by reason of a contravention of a requirement under the Ordinance by a data user, you may make a civil claim for compensation from that data user for that damage. The kind of damage concerned may be or include injury to feelings.
From whom can I ask for assistance in lodging a civil claim?
An application for legal assistance may be made to the Office of the Privacy Commissioner for Personal Data.
What types of legal assistance can be provided by the PCPD?
The legal assistance that the PCPD may provide takes the form of legal advice, mediation, and legal representation in court, including any steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings. The assistance may be rendered through the PCPD’s legal staff or external lawyers engaged by the PCPD on your behalf. The PCPD’s legal staff will advise you independently without any influence from other person.
How and when to apply?
You normally have to lodge a complaint against the relevant data user with the PCPD first before applying for legal assistance. The PCPD will ascertain whether the nature of the act complained of falls within the ambit of the Ordinance, and if so, whether the complaint is substantiated based on the information gathered in the course of handling the complaint. You should therefore provide all relevant information to the PCPD during the complaint handling process. For information on the PCPD’s complaint handling process, please refer to the Complaint Handling Policy published by the PCPD.
You may lodge an application for legal assistance after the PCPD concludes the complaint. All applications for legal assistance must be made on the PCPD's Application Form. Upon receipt of your application, the PCPD will assess the information provided and decide whether legal assistance should be granted.
What is the time limit for making a civil claim?
The time limit for making a civil claim on privacy infringement under the Ordinance is normally 6 years from the alleged wrongdoing. You have to act swiftly in order not to lose your legal right of action.
How long does it take to process an application?
Normally, you will be informed of the result of the application within 3 months after you have submitted all the relevant information for the application. If a decision on your application cannot be made within three months, you will be kept informed of the position.
If the PCPD decides to offer assistance, you will be asked to sign an agreement which sets out the terms and conditions under which assistance will be given. You should read all the terms and conditions carefully before accepting the assistance.
If the PCPD refuses your application, you will be notified in writing.
What will the PCPD consider in deciding to grant or refuse assistance?
The Commissioner may grant assistance if he thinks fit to do so, in particular, if the case raises a question of principle; or it is unreasonable, having regard to the complexity of the case and your position in relation to the relevant data user, to expect you to deal with the case unaided.
What can I do if my legal assistance application is refused?
There is no right of appeal under the Ordinance against the PCPD’s decision to refuse an application for legal assistance. However, if there is any material change of circumstances, the Commissioner may at his discretion review the refusal upon request.
A request for review has to be made in writing setting out clearly what the material change of circumstances is (for example, subsequent discovery of new evidence that may affect the outcome of the case) and providing the supporting evidence. The Commissioner will, after review, inform the requestor of his decision in writing. His decision is final.
Do I need to pay for the legal assistance?
The PCPD will normally bear the legal costs of providing legal assistance to you. But in the event that you are ordered by the Court to pay the costs of the defendant or other parties in the legal proceedings, the PCPD may not cover your liability to pay such costs if you have acted in an unreasonable manner leading to an adverse costs order being made against you.
If you are successful in recovering the costs and expenses related to your claim, the PCPD has a first charge on any costs or expenses which are payable by other persons to you (i.e. the payment will be used to settle the PCPD’s legal costs or expenses first). The first charge does not encroach upon the damages you obtain in the civil claim.
Are there other alternatives to the PCPD’s legal assistance?
If your application for legal assistance is not successful, you can still consider taking legal action in person or by engaging lawyers in private practice, or applying for legal aid from the Legal Aid Department.
What if I have made a false statement to the PCPD?
If you make any false statement in order to obtain legal assistance, the PCPD will terminate the assistance and take whatever actions it considers appropriate against you.
For enquiries, please contact :-
Office of the Privacy Commissioner for Personal Data, Hong Kong
Enquiry Hotline : (852) 2827 2827
Fax : (852) 2877 7026
Address : 12/F, Dah Sing Financial Centre, 248 Queen’s Road East, Wanchai, Hong Kong
Website : www.pcpd.org.hk
Email : communications@pcpd.org.hk