Furthermore, DPPs 2(3) and 4(2) provide that when a data user engages a data processor, whether within or outside Hong Kong, to process personal data on the data user's behalf, the data user must adopt contractual or other means to prevent any personal data transferred to the data processor from being kept longer than is necessary for the . The law, which is currently at the . Dynamic data inventory. The PCPD recommends that organisations conduct yearly risk assessments to ensure their privacy policies comply with the PDPO and privacy impact assessments before launching any new projects, products or services to determine potential privacy risks at an early stage (and make any necessary changes and improvements). This has been exacerbated by the global pandemic, which has forced criminals online, with the number of. by way of background, china's cybersecurity law 1 for the first time raised the requirement of cybersecurity review for critical information infrastructure operators' (the " ciio ") activities of purchasing network products and services, which may influence national security. data subjects rights of access to and correction of their personal data, and the contact details for the person responsible for handling those requests. The PCPD has issued Guidance on the Collection and Use of Personal Data through the Internet Points to Note for Data Users Targeting at Children, which specifically relates to the collection of childrens data, as well as a series of publications and activities to promote childrens personal data privacy (including a Children Privacy thematic website). The law will offer a macro framework that will regulate companies and institutions instead of personal behaviour, the sources said. DPP6 also provides a data subject with the right to: Part 5 of the PDPO provides detailed provisions regarding the manner and timeframe for compliance with data access and correction requests. However, the PCPD has published certain codes and guidelines regarding the collection and use of certain types of personal data which will require special attention (including Hong Kong identity cards, biometric data and consumer credit data see further question 7 below). That said, section 25A OSCO provides a defence to a prosecution under s.25 OSCO if the victim notifies an authorised officer (i.e. DPP1 and DPP3 combined mean that it is not possible to obtain a blanket consent (in a notice or agreement between the data user and data subject) that purports to give the data user the right to use personal data for any purpose whatsoever. This website uses cookies to improve your experience while you navigate through the website. "It's been enormously difficult for our companies to prepare for the implementation of the cybersecurity law, because there are so many aspects of the law that are still unclear," said Jake. Although not mandatory, the PCPD recommends that organisations implement a Privacy Management Programme, which should include periodic risk assessments and privacy impact assessments (see the PCPDs Privacy Management Programme: A Best Practice Guide). Part 6A of the PDPO requires that data users must obtain explicit informed consent of a data subject before using the data subjects personal data for direct marketing or transferring the data to a third party for direct marketing. Whether a security breach must be notified to the SFC will therefore depend on the extent and impact of the breach. Such notifications are currently voluntary, although the PCPD can take into account whether data breach notifications were given in considering whether a data user has complied with the DPPs (in particular DPP4 data security). Silence cannot constitute consent. It recommends that this be extended to two years from the discovery of any act or omission or other events, the proof of which is required for conviction of the offence. Responses are due on 19 October 2022. The rapid development in technology has brought about an increasing number of cyberattacks and cybercrimes in recent years, resulting in significant challenges for law enforcement and also to the cybersecurity of critical information infrastructures (CIIs). Scope of this note. Hong Kong was always meant to have a security law, but could never pass one because it was so unpopular. Personal data covered by legal professional privilege. Despite the ability to rely on implied consent for primary data use, it is advisable to obtain written consent (which may be indicated by a signature or a tick box). The Hong Kong Monetary Authority (HKMA) has issued several Circulars related to technology risk management to provide guidance and reminders in relation to the technological security requirements and controls to be observed by authorised financial institutions. it is not supplied with enough information to locate the applicable personal data; the request is not made in writing in Chinese or English; the request follows two or more similar requests and it is unreasonable for the data user to comply with the request; (concerning data access requests) the request is not made on the specified Data Access Request Form; (concerning data correction requests) the data user is not supplied with information as it may reasonably require to ascertain the relevant personal datas inaccuracy, or that the correction is accurate; or. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Cloud computing is both a rapidly growing market in China as well as subject to this increasing regulatory regime. For example, a white paper titled The Internet in China, published in 2010, served as an early guide If a website deploys third-party cookies, regardless of whether any personal data is involved, it should state clearly what kind of information the cookies collect, to whom the information may be transferred and for what purposes. It also covers the powers available to the Privacy Commissioner for Personal Data, Hong Kongs personal data privacy regulator, and what organisations should do if a breach occurs. On 8 October 2021, the Hong Kong SAR Government implemented the Amendment Ordinance, which amends the PDPO to include new doxxing offences. The Personal Data (Privacy) Ordinance (Cap. The PCPD may also carry out proactive inspections of any personal data system for the purpose of making recommendations to a data user (s.36 of the PDPO). If the data subject is a child and their consent is required for the collection of personal data, a parent or guardian may give the prescribed consent. Authorities want to strengthen defences against similar incidents. The PCPD has published Guidance on the Proper Handling of Customers Personal Data for the Insurance Industry, which provides practical guidance to insurance institutions on complying with the PDPO and DPPs when handling data in their business operation. Section 161 of the Crimes Ordinance (Cap. Although the Chinese government claims that the Cybersecurity Law will help reduce the risk of cyberattacks and . In a typical CEO fraud scam, the scammer would usually get a good working understanding of the company's hierarchy and its money, trade and logistical movement patterns. In addition to these provisions, it is recommended for data users and data processors to keep records of data processing activities in order to be able to respond promptly and comprehensively to any enquiry or investigation by the PCPD into compliance with the DPPs, or to any complaint by a data subject. Under the PDPO there is currently no specified data retention period nor any statutory obligation to maintain a data retention policy. The Insurance Authority has also issued a Guideline on Cybersecurity, which outlines the minimum standards that authorised insurers are expected to meet in relation to the handling of personal data of existing or potential policyholders. Risk advice We help clients manage legal risks related to cybersecurity, privacy, data governance, eDiscovery, information technology, eCommerce and intellectual property. where the disclosure was required or authorised by law or a court order. Further details on the proposed cyber legislation are provided below. Long before the Cybersecurity Law took effect, China had already made some efforts to strengthen information security. The Security Bureau and the Innovation and Technology Bureaus are conducting a joint study, paving the way for a legal framework that will require compliance from private companies, statutory bodies and government departments on cybersecurity, government sources told HKFP. 200) provides offences related to accessing a computer with criminal or dishonest intent including an offence of obtain[ing] access to a computer with a dishonest intent or objective. DPP4(1)(a) provides that a data user must take all practicable steps to protect personal data by reference to the kind of data and the harm that could result from unauthorised collection. Such developments in the cyberspace stem from Hong Kong's duty under Article 9 of the National Security Law to take necessary measures to strengthen regulation over matters concerning. Your organization can face government investigations, media attention, customer demands, and litigation - circumstances that require careful yet rapid response. It does not impose an obligation to actually prevent such events occurring. The Hong Kong government is planning a new law designed to make the operators of public utilities and other crucial infrastructure step up security against cyber attacks. The details of the legislative proposal are not yet available. The quantum of damages is fact-sensitive to be decided in each case. Although the Cybersecurity Law permits data cross-border transfers, these are only allowed in compliance with industry regulations and after an official assessment on security measures and formal approval have been completed. 2022 Hong Kong news - Independent, non-profit, impartial. DPP1(1)(a) provides that personal data must not be collected except for a lawful purpose directly related to a function or activity of the party that will use the data, while DPP1(3) requires that the data subject be notified explicitly of certain information related to the collection of data before the first collection (save for limited circumstances). A licensed or registered person may choose to notify the SFC of a breach voluntarily, particularly given the SFCs recent attention to cybersecurity in thematic reviews and regulatory audits. (China) Limited, a limited liability company in Mainland China, KPMG, a Macau (SAR) partnership, and KPMG, a Hong Kong (SAR) partnership, are member firms of the KPMG global organisation of independent member firms . Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). Environmental, Climate and Regulatory Law, Litigation, Arbitration and Investigations, Sanctions, International Trade and Investment Compliance, Other areas of Latin America and the Caribbean, Sustainable transition seminar series 2022, Anti-slavery and human trafficking statement. These cookies will be stored in your browser only with your consent. The PCPD may issue written notices to persons who may be able to assist the PCPDs investigation to require the provision of materials and assistance (s.66D of the PDPO). The PDPO adopts the key definitions personal data, data subject, data user (not data controller), and data processor: There is no concept of sensitive personal data under the PDPO and there are no additional restrictions specifically imposed with respect to sensitive personal data. For the summary offence of illegal access to programs or data, the HKLRC is of the view that the Hong Kong courts should only have jurisdiction where the act constitutes a crime in the jurisdiction where it was performed. There are also sector-specific guidelines, such as the Guideline on Medical Insurance Business, which advises that authorised insurers and licenses insurance intermediaries should at all times, exercise due care and diligence in collecting, handling, storing, using, transferring and erasing customers personal data and comply with the PDPO and its guidance. Establishing a preventive management regime for critical infrastructures. In particular, the PDPO does not target other data-related cybercrimes, such as data theft and the theft of confidential information or trade secrets. Enforcement of Judgments in Civil and Commercial Matters, the PCPDs criminal investigation and prosecution powers in relation to such offences; and. February 2, 2022. CII operators may need to undertake a significant exercise to ensure compliance with the new legislation. Data processors (in that capacity) are subject to obligations by way of flow-down contractual or other means which a data user must adopt, e.g. A data user may also refuse to comply with a data access or correction where: The PCPD has published Guidance Notes on the Proper Handling of Data Access Request and Charging of Data Access Request Fee by Data Users, and the Proper Handling of Data Correction Request by Data Users. The PCPD may conduct an investigation where it (i) receives a complaint on a possible breach of PDPO; or (ii) has reasonable grounds to believe that there may be a contravention of the PDPO (s.38 of the PDPO). 2. International Legal Framework for Cyber Security 2.1 Political Agendas and International Law Cyber security is now routinely cited and consistently placed on the top of political agendas. A guide to Hong Kong's cybersecurity laws and practices. Hong Kong has seen a series of cybersecurity attacks, such as when a local airlines cache of client data was stolen, or when the Hospital Authority saw its patients data hacked. This has highlighted the need for more robust, updated and comprehensive cyber legislation in Hong Kong. Search regulations by topic. | Contact Us | Newsletter | Annual & Transparency Report. 486). The PCPD is the designated personal data privacy regulator and an individual can complain to the PCPD if they suspect a data user has possibly breached the PDPO. The Hong Kong Computer Emergency Response Team (HK Cert) and the Hong Kong Police Force Cyber Security and Technology Crime Bureau (CSTCB), have been established to help victims of cybercrime, but they are not regulators. The proposed reforms include: The PCPD has recently confirmed that it is considering further amendments to the PDPO with the HKSAR Government. Section 66 of the PDPO provides that a data subject may commence civil proceedings against a data user who contravenes the PDPO to seek compensation if they can show that the contravention caused damage. on subsequent convictions a fine of up to HKD100,000 and imprisonment for up to 2 years, and a daily penalty of HKD2,000 if the offence continues; a data user failing to comply with the requirements of the PCPD in exercising its powers under the PDPO is liable to a fine of up to HKD10,000 and imprisonment for up to 6 months (s.50B, PDPO); and. Increased maximum sentences The maximum sentence under most of the New Cybercrime Offences is 14 years, as opposed to the present range of two to 10 years' imprisonment for existing offences. Putting in place a comprehensive incident response plan. There is no definition of sensitive personal data under the PDPO, although the PCPD uses the term in its guidance. China requires classification of data into general, important and core categories. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The PDPO also includes provisions prohibiting the transfer of personal data outside Hong Kong (and the transfer between two jurisdictions outside Hong Kong where the data user is in Hong Kong) unless certain conditions are met. Hong Kong Stock Exchange, the world's third-largest financial bourse, has always . If the proposed Hong Kong cybersecurity legislation does mirror the PRC Cybersecurity Law, CII operators will be subject to an additional set of legal requirements, such as the creation, improvement and maintenance of internal cybersecurity systems; self-assessment regarding the sensitivity of data collected; and formal application for data transfers. The PCPD has also issued guidance on personal data collection and use in certain scenarios, including by employers, schools, in certain industries (such as mobile service operators, property management, banking and insurance), and for certain types of personal data (such as biometric data). Our dedicated global practice is composed of more than 80 information governance, privacy and cybersecurity lawyers based in many of the world's key risk jurisdictions. In practice, data users provide a Personal Information Collection Statement (PICS) or privacy notice. For further information on direct marketing see question 23 below. 486) (the " PDPO ") is a comprehensive set of laws that is technology-neutral and provides a set of Data Protection Principles outlining how data users should collect, handle and use personal data. Security measures required to be taken by the data processor to protect the personal data; Timely return, destruction or deletion of personal data when it is no longer required for the purpose it was entrusted to the data processor; Measures to be taken by the data processors, such as policies and procedures and training for staff; and. Although the sale of personal data is not specifically prohibited by the PDPO, it would not normally be regarded as the original purpose of data collection or a directly-related purpose. Increase in limitation period The HKLRC is of the view that the current limitation period under s. 26 of the Magistrates Ordinance (Cap. Attorney Advertising: This Content may qualify as Attorney Advertising requiring notice in some jurisdictions. In AAB No. Watch this space for updates to the proposed regimes. The PCPD may publish enforcement reports of its investigations or inspections (on its website) if it considers that it is in the public interest to do so (s.48(2) of the PDPO). any of the exemptions specified under Part 8 of the PDPO applies. There can therefore be more than one Data User in respect of any item of personal data (for example if different group entities use personal data for different reasons). An appeal against an enforcement notice issued by the PCPD can be made to the Administrative Appeals Board within 14 days after the notice is served (s.39 of the PDPO). The extent or timetable of further reforms is not yet publicly known. However, there is no law in Hong Kong specifically prohibiting the payment of ransoms. Advertisement. Hong Kong's outdated data privacy law puts it out of step with Beijing, experts say, as the mainland pushes to restrict cross-border data flows A new draft regulation has confirmed that some. If the PCPD finds a breach of the PDPO after conducting an investigation, it may issue a written enforcement notice requiring the data user to take remedial or preventive steps (s.50 of the PDPO). LOADING PDF: If there are any problems, click here to download the file. Join our mailing list to receive updates on new Guides: Legal Disclaimer. The PCPD has issued Codes of Practice (the Codes) covering certain types of sensitive personal data, relating to: The Codes are not legally binding, but a breach of a Code by a data user can give rise to a presumption against the data user in any legal proceedings under the PDPO. The PCPD has a range of formal investigative powers, including power to enter premises for investigation with a warrant or with prior written notice (s.42 of the PDPO) and to require production of documents for the purpose of an investigation (s.44 of the PDPO). A person considering paying a ransom must check relevant sanctions lists to ensure that the recipient is not a known terrorist organisation or sanctioned person. Please see full Publication below for more information. Yes, the PDPO draws a distinction between data users and data processors (see question 3 above). DPP4 requires data users to take all practicable steps to protect personal data from unauthorised or accidental access, processing, erasure, loss or use. That doesn't mean, however, that companies based in Hong Kong won't be subject to China's Cybersecurity Law if they do business in Mainland China, for the reasons mentioned above. Under the DPPs, data users engaging a data processor (within or outside Hong Kong) must adopt contractual or other means to: The PCPD recommends incorporating additional contractual clauses in service contracts or entering into separate contracts with data processors, that could impose obligations such as keeping records and immediate reporting of any sign of abnormalities or security breaches. Please refresh the page and/or try again. Possible extra-territorial application of the proposed offences The HKLRC recommends that Hong Kong courts should have jurisdiction so long as the crime in question has a local connection, including where: (i) the act or omission occurs in Hong Kong; (ii) the victim is a Hong Kong permanent resident, ordinarily resides in Hong Kong, or is a company carrying on business in Hong Kong; (iii) the target program or data is in Hong Kong; or (iv) the perpetrator's act has caused or may cause serious damage to Hong Kong (e.g., its infrastructure) or has threatened or may threaten the security of Hong Kong. The nature of the data and the damage that could result from unauthorised or accidental access, processing, erasure, loss, or use; Any physical security measures available for the equipment storing personal data; Any measures for ensuring the integrity, discretion, and competence of those with access to the data; and. . The exemptions applicable in each circumstance are different, and it is advisable to review the table published by the PCPD summarising the exemptions. The Consultation Paper conducts a comprehensive comparison of the cybercrime laws in seven other jurisdictions, namely Australia, Canada, England and Wales, Mainland China, New Zealand, Singapore and the USA. It is potentially sensitive data, and any disclosure could lead to harm to the data subject. making telephone calls to specific persons. The PCPD is considering with the HKSAR Government whether to introduce mandatory data breach notification obligations. collection of personal data when handling mobile phone service applications, maintenance of customers service accounts and relevant retention/change of customers personal data etc. You also have the option to opt-out of these cookies. The PCPD has published the Guidance on Property Management Practices to assist property management bodies in understanding and complying with the PDPO in specific situations which may arise during their operations. Hong Kong This has been exacerbated by the global pandemic, which has forced criminals online, with the number of cases in Contravention of certain specific provisions of the PDPO is also an offence, including not erasing personal data that is no longer required for the purpose for which it is used, and disclosure of personal data obtained from a data user without the data users consent. This strategy also highlights the importance of cybersecurity legislation. As companies pivot toward a digital business model, exponentially more data is generated and shared among organisations, partners and customers. There are currently no mandatory registration or licensing requirements for data users, data processors, or other person covered by the PDPO. This website uses cookies to improve your experience. The areas of review include mandatory data breach notifications, specified data retention periods, regulating data processors, and giving the PCPD power to impose direct administrative fines. Legal update: Review and public consultation on cybersecurity law in 2022 In this snapshot legal update, we report that on 25 May 2022, in a written reply by Mr. Alfred Sit, the Secretary for Innovation and Technology, to Legislative Council questions on cybersecurity standards in Hong Kong, Mr. Protiviti's cybersecurity consultants have deep expertise in IT cybersecurity, managing technical and business risks. Sit confirmed that the Hong Kong Government is This report provides an overview of China's Cybersecurity Law, which was adopted in November 2016 and will come into effect on 1 June 2017. Industry-specific regulators also have their own powers to enforce any breach of their own regulatory framework, and to impose sanctions applicable to the relevant regulatory breach. Whilst these Guidelines do not have the force of law, they are taken into account by the Insurance Authority when considering fitness and properness of the directors or controllers of authorised insurers to which the Guidelines apply, and non-compliance may impact upon this. All data users are required to comply with the six DPPs, summarised as follows: Contravention of any of the DPPs is not a direct offence of itself, although the PCPD can investigate and issue a public enforcement notice, breach of which is an offence. DPP5 provides a right of access to information by requiring that all practicable steps must be taken to ensure that a data subject can be informed of the kinds of personal data a data user holds and the main purposes for which this data is or is to be used. 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