Personal Data (Privacy) Law in Hong Kong – A Practical Guide on Compliance

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12.92 Section 61(1) also has the effect of circumscribing the Commissioner’s powers of
inspection and investigation. The Commissioner has no power of inspection of any part
of a personal data system that holds such information for the purpose of news activity
(section 61(1)(ii)). Furthermore, the Commissioner can only investigate a suspected
contravention of the provisions of the Ordinance after the material that is the subject of
the complaint has been published or broadcast (section 61(1)(i)) and only when he
receives a complaint under section 38(a).
12.93 In AAB No. 34/2007, the appellant submitted a request to a newspaper for copies of
emails from a person who provided comments regarding the appellant that were
reported in the newspaper. The appellant argued that in order to ascertain whether the
requested data was published or unpublished, all the contents of the requested data
must be disclosed. The AAB rejected the argument and made the following comments:
We believe this argument may have force if the Appellant may be able to demonstrate which
part of the Article would have the effect as submitted. There is always a minimum threshold
which the Appellant must show, at the least, that there is a prima facie case that there could
be a reference in the published part to unpublished data, or somehow published and
unpublished data are intertwined. To argue that there was a possibility of cross-reference or
intertwining that would give rise to possible confusion is to argue in a vacuum. The logical
extension of such argument would be that, . . . , all the contents of the email correspondence,
whether or not their contents had not been published (and in the latter case should not be
disclosed under the Section 61 exemption), must be disclosed otherwise the Commissioner nor
the Appellant would not know if there had been any reference to an overlapping situation.
This amounts to a submission that there can be no exemption under Section 61(1). We cannot
accept such submission.
12.94 It is nevertheless worth noting that this exemption does not exempt from application the
other data protection principles, with which the data user is still obliged to comply, in
particular, DPP1(2), i.e. collection of personal data by lawful and fair means. 15 Where a
code of ethics16 is in place, the press shall observe and follow it when collecting and
using materials gathered for news reporting.
Section 62 — Statistics and Research
12.95 Section 62 is comparatively easy to understand and of practical importance in
exempting personal data from being used for preparing statistics or carrying out
research. The value to be served by compiling statistics or conducting research is self-
explanatory.
15 Reference is made to the use of long-focus lenses to take photographs of the home activities of artistes where privacy
was reasonably expected: Investigation Reports Nos. R12-9159
and
R12-9164
and
also AAB No. 5 & 6 of 2012, available on the Website.
16 See the Joint Code of Ethics issued by the Hong Kong Journalists Association.