Application for Legal Assistance
An enquirer would like to know the conditions for applying for the PCPD’s legal assistance and the forms of legal assistance provided by the PCPD.
Our response
Before applying for legal assistance, an individual should normally have lodged a complaint with the PCPD under section 37 of the Ordinance1 and obtained a decision thereon by the Privacy Commissioner or his delegates. The nature of the act complained of must fall within the ambit of the Ordinance.
After the PCPD has concluded the complaint, if the complainant can provide evidence to prove that he has suffered damage by reason of a contravention of a requirement under the Ordinance by the data user, he is entitled to compensation from that data user for that damage under section 66 of the Ordinance and may consider applying for legal assistance from the PCPD. After considering all the circumstances of the case (e.g. whether the case raises a question of principle (whether the case involves an issue of legal uncertainty which ought to be resolved through legal action)), the Privacy Commissioner may, pursuant to section 66B of the Ordinance, grant legal assistance to the aggrieved individual who intends to institute proceedings to seek compensation.
The PCPD may provide legal assistance in the form of legal advice, mediation and legal representation to the assisted person 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 the assisted person’s behalf. The PCPD’s legal staff will advise the assisted person independently without any influence from other person. For details, please refer to the PCPD’s leaflet, “Legal assistance for civil claims under the Personal Data (Privacy) Ordinance”.
(Uploaded in September 2020)
1 Under section 37 of the Ordinance, an act or practice done or engaged by a data user referred in a complaint must relate to personal data, and such act or practice may be a contravention of a requirement under the Ordinance. Moreover, the complaint must be made by the data subject or a relevant person on behalf of the data subject under the definition of the Ordinance.