Data Protection Principles for Cross-Border Transfers of Personal Data
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As part of any investigation into personal data issues, it is crucial to determine whether any is involved. The PDPO defines personal data as information relating to identifiable persons; this definition aligns with laws such as China’s Personal Data Protection Law and Europe’s General Data Protection Regulation. However, if data does not involve identifiable people then obligations under the PDPO will not arise for that data.
Assess what data will be transferred for what purpose. Any transfer that uses personal information collected for one use for another purpose without express consent would constitute a breach of the PDPO; accordingly, data users should ensure any contract they sign with data processors includes a provision requiring them to secure that consent before transferring personal data for new uses.
To assist companies in meeting these requirements, the PCPD has developed recommended model clauses which can be added into contracts to satisfy these regulations. These include provisions covering transfers between data users and third-parties as well as between entities which control each other (whether located inside or outside Hong Kong). Furthermore, detailed guidance has been released by PCPD on these model clauses to encourage voluntary compliance.
As Hong Kong becomes more tightly integrated with mainland China, cross-border data transfer volumes may rise significantly over time. A more efficient and reliable legal foundation for such transfers must therefore be quickly established if this integration is to continue smoothly. With China having two separate legal jurisdictions under “one country, two systems,” this establishment becomes all the more crucial.
The Mainland must adopt comparable data privacy laws to those found in Hong Kong in order to facilitate free flow of information and thus make rapid strides in implementing its data privacy laws, especially section 33, which are vitally important to both Hong Kong and Mainland businesses’ success and thus ensure an economic boon for the region as a whole.