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Hong Kong’s data protection regime is governed by the Personal Data (Privacy) Ordinance (“PDPO”). This law establishes rights for individuals as well as specific obligations on data controllers through six data protection principles. Furthermore, this ordinance regulates collection, holding, processing and use of personal data across borders for cross-border transfer. To be successful in business operations it is vitally important that businesses understand how such laws will impact them.
Under Hong Kong’s Personal Data Protection Ordinance (PDPO), data users must complete a transfer impact analysis prior to exporting personal data outside Hong Kong. A transfer impact analysis evaluates the level of protection in foreign jurisdictions versus that provided in Hong Kong standards and what additional steps may be necessary (technical measures like encryption/anonymisation; contractual provisions or both).
Data users must also conduct an impact assessment and ensure contracts are in place that comply with the PDPO’s provisions on cross-border transfers, whether this means separate agreements, schedules to a main commercial agreement or contractual provisions within said arrangement. Regardless, any agreements should be enforceable and offer adequate protections that meet PDPO requirements.
Although Hong Kong does not impose legal restrictions on cross-border transfers, there are significant and onerous obligations associated with them. There is guidance outlining how these can be fulfilled through contracts containing recommended model clauses for data users to their data processors or between data users themselves.
At first glance, Hong Kong’s position may seem disconnected with international trends. However, the reasons are quite specific to its unique conditions and are detailed below.