Section 61(1) of the Personal Data (Privacy) Ordinance ("the Ordinance") exempts the newspaper data user who held personal data for news activity from complying with a data access request ("DAR") when the data are not used for publication.
Source of information collected by newspaper - article published containing complainant's personal data - complainant made DAR in prescribed form, excluding specifically personal data that were published - refusal to comply - news activity - the requested data not published - DPP6, section 61(1)
The Complaint
A newspaper published an article containing a person (i.e. Mr. X)'s comments on the complainant. The complainant made a DAR to the newspaper requesting for her personal data contained in the emails that was sent by X to the newspaper that the newspaper had received around the publication date of the article.
The newspaper refused to comply with the request on the ground that the requested personal data were held by it for news activity and, therefore, exempted under section 61(1) of the Ordinance. The complainant claimed that the newspaper had wrongfully refused to comply with the DAR and complained to the Privacy Commissioner.
Findings by Privacy Commissioner
Having considered that (i) the business of the newspaper consists of news activity; (ii) the newspaper received X's email in the course of carrying out journalistic function, hence for news activity purpose; and (iii) the requested personal data were not published, the Privacy Commissioner took the view that the newspaper was entitled to claim the section 61(1) exemption to refuse compliance with the DAR.
The Privacy Commissioner decided not to investigate or further investigate the complaint under section 39(2)(d) of the Ordinance on the ground that any investigation or further investigation was unnecessary.
The complainant appealed to the Administrative Appeals Board.
The appeal
The Board agreed with the Privacy Commissioner's views that the newspaper was entitled to rely on the section 61(1) exemption.
The Board added that the complainant had clearly indiciated in the DAR form that she did not request for personal data that were published and this was reasonably interpreted and understood by the newspaper. The complainant’s pedantic argument on the proper construction of the requested data actually intended by her in the DAR was not accepted by the Board.
On the complainant's argument that the requested personal data would be used for a defamation claim, the Board reiterated that it was never the legislative intent of the Ordinance that the data access right conferred under section 18 was to supplement the right of discovery in legal proceedings. The Board rejected the complainant's argument.
AAB's decision
The appeal was dismissed.