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1.4
Since the collection and use of personal data has become part of daily life
in the age of data and as contravention of any of the data protection
principles may lead to legal sanctions, it is in every data user’s interest to
understand them. However, understanding their literal meaning may not
be sufficient in every case. This is because the principles are not expressed
in definitive terms. A data user will benefit from expert explanations and
advice in certain situations.
1.5
Up to now there has not been a large body of judicial decisions providing
authoritative interpretations on all the principles. Be that as it may, the
Commissioner has, over the last twenty years, dealt with many enquiries
and complaints in respect of alleged contraventions of the data protection
principles. The Commissioner’s decisions, based on his interpretation of the
principles in the Ordinance, have occasionally been tested in the Court
and in the course of appeals to the Administrative Appeals Board (“AAB”),
3
whose determinations carry quasi-judicial authority.
1.6
Against this background, it is certainly in the public interest for the
Commissioner to state openly the criteria and principles upon which he, as
the statutory regulator, has interpreted the six data protection principles as
well as some related provisions of the Ordinance.
In so doing he may:
• help data users to comply with the requirements under the Ordinance in
a way that will minimise the risk of sanction by the Commissioner
regarding their handling of personal data;
• help the legal advisors of both data users and data subjects in giving
practical advice to their clients;
• help individuals to understand the Commissioner’s likely position on a
particular issue before they consider lodging a complaint;
• provide reference material for consideration by the Court or the AAB in
cases before them involving the six data protection principles; and
• provide academics and other interested persons with material for further
study and research.
The Regulatory Approach
1.7
The Commissioner’s regulatory approach is consistent with the general
common law rules on statutory interpretation and in particular the
principles of interpretation
4
laid down by the Interpretation and General
3
To which, pursuant to the Ordinance and the Administrative Appeals Board Ordinance (Cap 442, Laws
of Hong Kong), appeals from certain decisions of the Commissioner may be brought.
4
These include the “literal rule” which accords primacy to the literal meaning of the language used in
the legislation; the “golden rule” with the presumption that an absurd result is not intended; and the
“mischief rule” that legislation has targeted a particular mischief and provided a remedy for it.