Prosecution and conviction rate of criminal doxxing; section 64 of PDPO more designed to deal with commercial aspect rather than doxxing, does it ‘tie your (PCPD’s) hand’? Should regulation of criminal doxxing be separated from current ordinance?
Successful conviction rate is nil, while Police brought 1 prosecution case to the court.
Origin of section 64 is out of a few incidents, like hospital authority staff disclosing patient data, prevalent organisation found their staff left taking away customer data with them and used their data without the consent of company. At that time personal data is not used as a ‘weapon’.
Consent of data subject is most important, which is a direction of law reform. PCPD is not completely ‘hands tied’, and will focus on streamlining evidence collection.
Hong Kong has a comprehensive legislation of personal data privacy protection, which is a good practice. Unless there is compelling reason, personal data privacy law should maintain as one single comprehensive legislation.
There is an alarming trend of using personal data as a ‘weapon’. Would you describe the phenomenon as ‘no turning back’? Also, there is suspected cross-border leakage of personal data by law enforcers, ‘who is to guard the guardsman’?
Yes, the number and speed of rising trend are alarming. In the last 1-2 months, the number and velocity of rising trend have peaked-off.
We cannot just base on media reports to enforce the law. There should be prima facie evidence for reasonable ground to initiate compliance checks or investigation. If there is a complaint from the data subject involved, the PCPD will carry out investigation.
For anything involving personal data, the PCPD will be the regulator.
What’s your concern on cross-border data transfer? Has Section 33 been enforced yet?
Section 33 has not been enforced yet. The Government and the PCPD have consulted parties’ concerned, especially the SME. They were quite concerned about the implications of having section 33 in relation to understanding the requirement and the resources implication in order to comply with the section. Over the last 3-4 years, the Government has conducted another exercise and those concerns largely remain unchanged. We also asked our consultant to focus on those concerns and tried to provide the ways forward, how to handle these concerns which have existed for over the last two decades. Our consultant is now working on a realistic approach to address the concerns on how to hold the hands of the enterprises with the view to complying with the provisions under section 33.
Our consultant is working on the draft model contract clauses for them to apply when they need to transfer data out of Hong Kong, so this is one of the accepted modes. The other one is certification, for example. EU provides means to satisfy this requirement by applying the adequacy decision test. If they certify Japan as adequate, cross-border data transfer between EU and Japan is permissible.
Any obligation in Hong Kong to share data/ doxxing investigation with law enforcement agencies in mainland China?
We do hope the Government and private sectors share data. Sharing data is one of the aims to achieve personal data protection because we have the big data initiative by the Government. But by sharing or opening personal data, we have to be well aware of the risks involved and that is our job to remind the data subjects of these risks and to help organisations handle and deal with these risks.
At the time, there are special circumstances and justifiable reasons provided under the law for data to be shared among law enforcement agencies. It is a practice all over the world, not just in Hong Kong,
I’m not sure if there is sharing of data between Hong Kong and mainland China, I receive no complaint about this.
Facial recognition used by the Government.
In the past, we talk about the collection of personal data from personal identity card; and 10 years ago, we talk about mobile phone numbers; and now we talk about facial recognition, biometric data. This is something we have to keep up with, to catch up with the development because we need to identify and find the solutions for these risks.
In EU, they have special protection regime regulating the collection and use of biometric data or sensitive data, but for Hong Kong we don’t and it is not yet included in the six areas of the law reforms, because we need to address current needs. We will keep advising the Government to be transparent and explainable.
In terms of changes on the PDPO, are you afraid that the Ordinance will restrict the freedom of speech?
I have to consider if we are going to bring restriction on certain rights, especially the fundamental human rights. The restriction will have to be proportionate to the protection of other competing rights, including the freedom of speech.
Among 40 cases of suspected violation of injunction, which injunction was that?
Both injunctions were involved.
Regarding criminal doxxing, even though it’s wrong, is it illegal? Or has to meet certain high standard before it is illegal?
What we believe in relation to a criminal case is, you must prove the criminal intent, either intentional or reckless we don’t care, simply say something malicious or have malicious intention. The effect is to cause psychological harm.
The other thing is the act itself. To put all these intimidating messages or posts and then upload with a view to circulating it across all sectors in the community, that is the criminal act.
結語 私隱專員: Thanks for coming. I wish you a very prosperous year of data, and a very peaceful year online.