Data Hong Kong – Does the PDPO Apply to a Transfer of Personal Data?

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While many other countries’ data privacy regimes contain a statutory restriction on the export of personal data, the Hong Kong PDPO does not. However, this does not mean that there are no restrictions on cross-border data transfers – the PDPO contains several provisions that are designed to ensure that personal data is treated in accordance with international standards, even when it is exported.

In determining whether the PDPO applies to a proposed transfer, it is important to first consider who controls the collection, holding, processing or use of the personal data. The PDPO defines “data user” as a person who, either alone or in common with other persons, controls the collection, holding, processing or use – i.e., the data cycle – of personal data. This is a narrower definition than in other jurisdictions, such as the Personal Information Protection Law that applies in mainland China or the General Data Protection Regulation that applies in the European Economic Area.

It is also important to consider whether the personal data involved is actually personal data. The PDPO defines “personal data” as information relating to an identified or identifiable natural person, such as name, identification number, location data, online identifier or factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person. In this regard, the PDPO differs from other data privacy regimes that have broadened the definition of personal data to include online activity.

Finally, it is important to note that a data user must expressly inform the data subject on or before collecting his personal data of the purposes for which the data will be used and the classes of persons to whom the data may be transferred. This is an obligation that is distinct from obtaining the data subject’s consent.