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Data transfers are an essential part of many corporate transactions. It is important for companies to understand how data privacy regulation relates to these transfers and how they can ensure efficient compliance with regulations. Padraig Walsh, of Tanner De Witt’s data privacy practice group, shares some of his insights about this issue.
The Personal Data Protection Ordinance (PDPO) provides protection for personal data in Hong Kong. It is important to note that this law only protects personal data that are collected for a legitimate purpose and does not cover all types of information. Personal data is defined as any information about an individual that can be used to identify that individual, including name, address, telephone number, fax number, email address, bank details, medical records and other information that could be used to contact the person or to determine that person’s creditworthiness.
A company that collects personal data in Hong Kong must comply with the PDPO, unless the business is exempted from it. This includes businesses that process data for the purposes of direct marketing and sales to individuals. In addition, this regulation requires the data to be kept secure and only shared with a limited number of people.
The PDPO also defines the term “data user.” A data user is an individual or organisation that controls the collection, holding, processing or use of personal data, whether in Hong Kong or overseas. This includes individuals who are employed in a data user’s organisation or who have access to the organisation’s personal data.
A data user may transfer personal data out of Hong Kong if it is in accordance with the PDPO. This can be done for a variety of reasons, including: to transfer data between organisations; to allow a data subject to access his or her personal data; to facilitate a transaction between the data user and another data subject; to enable a business in another jurisdiction to provide a service to the data subject; or for any other legitimate reason. Data transfers must be approved by the registrar of the personal data. This is to ensure that data is transferred legally and in a timely manner. It is also a requirement under the PDPO that data transfer agreements are in place. These agreements should include the terms and conditions of the transfer and a declaration that the transfer is in compliance with the PDPO. They should also clearly state that the data will be used solely for the purposes for which it was transferred. This helps to minimise the risk of a breach of the PDPO. This is a key element of ensuring the protection of personal data in Hong Kong.