PCPD News Issue 28

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PCPD News 私隱專員公署通訊•Issue no. 28
Q6: The so-called personal data in the
public domain is already publicly
ava i l ab l e . Doe s t he P r i vacy
Ordinance aim to curtail the
free flow of information and the
public’s right to know?
A6: Privacy is a fundamental human
right. Since the enactment of the
Ordinance in 1996, it has been
a legal obligation on the part of
all data users to protect personal
data. The Ordinance applies to
personal data, which is only part
of the data that is available in the
public domain. To say that the
Ordinance is in direct conflict
with free flow of information is an
over-statement.
Nevertheless, data privacy is not
absolute. One should balance
t h i s r i gh t wi t h o t he r r i gh t s ,
including freedom of information
and the public’s right to know.
Such balance is reflected in the
exemptions listed in Part VIII of
the Ordinance.
Q7: Why does the Ordinance allow a
law firm to provide a background
search service while ruling against
a mobile app version?
A7: T h i s i s a n o r a n g e t o a p p l e
comparison. In the case of the
App we h a v e c on c l ud e d a n
investigation in response to a
number of complaints.
We cannot say whether in general
a background search service run by
a legal firm or any other operator
is proper or not. Each case has to
be determined on its own merits as
assessed in a detailed investigation.
Objectively, law firms provide
one-to-one professional service.
Lawyers are expected to know
what can be done legally and what
cannot, advise their clients on
the limitations of the information
in their possession and carry
out specific checks to ensure
as far as possible the accuracy
and comprehensiveness of the
information. They may additionally
consider if the exemption of the
Ordinance e.g. section 60B (legal
proceedings) may apply.
The search service through the
App referred to above is a one-to-
many service; GDI cannot control
how end users use the incomplete
and inaccurate litigation and
bankruptcy data it provides.
Q8: In addition to providing litigation
and bankruptcy records through
the smartphone app, GDI runs
a web-based data search service
with similar features. Is it legal?
A8: D u r i n g t h e c o u r s e o f t h e
investigation into the operation
of the App, the PCPD learnt that
GDI also provided litigation and
bankruptcy data through other
channels with the same database.
Although no complaint had been
received in this regard, the PCPD
had commenced a compliance
check against GDI to appraise the
situation and to ensure that the
parties concerned comply with the
requirements under the Ordinance.
Before the compliance checks
are completed, the PCPD cannot
offer a comment on any of GDI’s
operations other than the ”Do No
Evil” app.
Q9: There are some websites providing
listings of “reportedly haunted
r e s i den t i a l s i t e s ” . Doe s t h i s
constitute a contravention of the
Ordinance?
A9: It is important to look at whether
personal data is involved in the
case. If the listing includes only the
addresses and the incidents which
took place on the sites, but no
personal data, the Ordinance does
not apply.
Q10: Cyber-profiling. Is it a misuse
of personal data obtained from
the public domain for web users
to provide personal data of an
individual?
A10: Cyberspace is boundless. The
acts of publishing, reproducing
and accessing the personal data
of targeted individuals in an
unfavourable light can be a far-
reaching issue. It may entail
a range of concerns, such as
misrepresentation, libel, cyber-
bullying, blackmail, intellectual
p r ope r t y r i gh t s , and i nvo l ve
different legislations and law
enforcement agencies. Privacy
rights with respect to personal data
may be only part of it. Each case
has to be determined on its merits.
The PCPD advises everyone to
respect each other’s right to data
privacy.
Data users are advised to refer to the
Guidance Note Use of Personal Data
Obtained from the Public Domain.
publications/GN_public_domain_
e.pdf)