(AAB Appeal No. 39 of 2015)
The Appellant complained against unnamed person(s) who posted certain messages containing her personal data on two online platforms. The AAB agreed with the Commissioner’s findings that as the Appellant had failed to specify the identity of the person(s) complained against, the requirement of a “complaint” under section 37 of the Ordinance was not satisfied. The AAB concluded that it had no jurisdiction to deal with an appeal against the Commissioner’s decision not to process a complaint under section 37 of the Ordinance.
Coram :
Ms. Cissy Lam King-sze (Deputy Chairman)
Ms. Carmen Chan Ka-man (Member)
Dr. Lianne Lam Ki-wai (Member)
The Complaint
In June 2015, the Appellant alleged that certain defamatory messages containing her personal data were found on the websites of “Yahoo” and “Facebook” and lodged a complaint with the Commissioner against the “person(s) behind the scene”. He requested the Commissioner to investigate into and ascertain the exact identity of the unnamed person(s).
The Commissioner’s Decision
The Appellant informed the Commissioner that she only possessed (i) the Facebook “username” of a person (which was not a full name); and (ii) an email address whom the Appellant believed to be the person(s) who posted defamatory messages on the said websites. The Appellant did not have any other contact details (such as full name, address, etc.) which would enable the Commissioner to identify the person(s) being complained against.
Upon considering all the information and documents available, the Commissioner took the view that the Appellant’s complaint did not satisfy the requirement of a “complaint” under section 37 of the Ordinance, which required a complainant to specify the data user being complained against. The mere provision by the Appellant of the means which might enable the Commissioner to locate the identity of the “person(s) behind the scene”, i.e. the websites of “Yahoo” and “Facebook”, was not considered sufficient to satisfy the aforesaid requirement.
The Commissioner therefore decided not to process the complaint under section 37 of the Ordinance. Dissatisfied with the Commissioner’s decision, the Appellant lodged an appeal with the AAB.
The Appeal
The AAB confirmed the Commissioner’s findings that the Appellant’s complaint did not fulfil the requirement under section 37 of the Ordinance. Stating the reasoning in its previous decision (AAB No.32 of 2004), the AAB confirmed, among others, that:
(i) The meaning of a “specified” data user as stipulated under section 37(1)(b)(i) of the Ordinance was not equivalent to an “identifiable” data user. Hence, the mere provision of the means to locate the identity of the data user was not sufficient to satisfy the requirement of a “complaint” under section 37 of the Ordinance; and
(ii) The Commissioner was not empowered under sections 37 and 38 of the Ordinance to carry out investigation for a “complaint” which fell short of the aforesaid requirement. The investigation power of the Commissioner was different from that of the Police and other law enforcement agencies whereby they were empowered to carry out investigations to trace the culprit and/or crime prevention, etc.
The AAB further agreed that it would be beyond the AAB’s jurisdiction to determine an appeal concerning the Commissioner’s decision not to process a complaint premised upon sections 37 or 38 of the Ordinance, as section 3 and the Schedule of the Administration Appeals Board Ordinance (Cap 442) did not provide for an appeal against the Commissioner’s decisions made under sections 37 or 38 of the Ordinance, while the Ordinance was silent on whether an appeal in respect of such decision was within the jurisdiction of the AAB.
The AAB’s Decision
The AAB dismissed the appeal for want of jurisdiction.
(Uploaded in August 2017)