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. Hong Kong Computer Emergency Response Team Coordination Centre (HKCERT) HKCERT is the centre for coordination of computer security incident responses for SMEs and Internet users, to facilitate information dissemination, provide advice on preventive measures against security threats and promote information security awareness. While Hong Kong has yet to enact specific legislation on cybercrime or cybersecurity, this will soon change with the announcement of the proposal to enact a new cybersecurity law during the Chief Executive's 2021 Policy Address ("2021 Policy . Copyright 2022 Baker & McKenzie. 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. The SFC has also stated its expectation that a licensed or registered person should report a material cybersecurity breach. 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. 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 national security (including the internet) and the potential criminal exploitation of the rapid developments in information technology, computer and computer data. 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. The details of the legislative proposal are not yet available. The specific application to a cyber ransom payment has not yet been tested in the Hong Kong Courts. They are not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. The Cybersecurity Law of the People's Republic of China, ( Chinese: ) commonly referred to as the Chinese Cybersecurity Law, was enacted by the National People's Congress with the aim of increasing data protection, data localization, and cybersecurity ostensibly in the interest of national security. 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. As companies pivot toward a digital business model, exponentially more data is generated and shared among organisations, partners and customers. There is no legal requirement under the PDPO to report security breaches to the PCPD. Build a Morning News Brief: Easy, No Clutter, Free! In terms of the overall legislative framework, the government has indicated that in preparing for the impending cybersecurity legislation, it will refer to relevant legislation around the world and will focus on seven areas: These broad areas will likely translate into compliance obligations for CII operators under the cybersecurity legislation. 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). : Data Protection & Cyber Security. Where a breach of a section of the PDPO is a criminal offence, the PCPD may refer the matter to the Hong Kong Police Force to investigate. 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). Anyone considering their rights and obligations under Hong Kong law should check the status of the proposed amendments. 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. Scope of this note. Although the Chinese government claims that the Cybersecurity Law will help reduce the risk of cyberattacks and . CAC extends cybersecurity review to Hong Kong IPOs China is set to require PRC companies undergo a cybersecurity review before listing in Hong Kong on national security grounds. The Amendment Ordinance provides for four statutory defences for the two-tier doxxing offences (see question 1 above) including: The PDPO does not impose data protection by design or data protection by default as requirements. There are currently no mandatory registration or licensing requirements for data users, data processors, or other person covered by the PDPO. 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). 455) (OSCO) provides an offence for any person (including a victim) to make a payment to a person when they know or have reasonable grounds to believe that the ransom payment represents the proceeds of an indictable offence. a) National Cyber Security Committee. a data subject through the civil courts, where the data subject can show that they have suffered damage resulting from a data users infringement of the data subjects rights. Click 'Accept' to consent to cookies other than strictly necessary cookies or 'Reject' if you do not. respect any users wish not to be tracked or to offer users a way to opt out of the tracking (especially if this is conducted by third-parties) and inform them of the consequence of opting out. Support HKFP | Code of Ethics | Error/typo? Unauthorised access to a computer by telecommunication: Under section 27A of the Telecommunications Ordinance (Chapter 106 of the Laws of Hong Kong) it is an offence to use telecommunications1 to affect a computer to obtain unauthorised access to any program or data held in a computer. 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 law governs network security and cyberspace activities in the PRC. 2. 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. Under the "one country, two systems" approach, Hong Kong is an entirely separate jurisdiction from Mainland China and has its own privacy and cybersecurity laws. As the organisation engages the third-party to collect or track user behaviour, it is the organisations responsibility to understand from the third-party what information is being collected and the means by which the information is collected. DPP4 requires data users to take all practicable steps to protect personal data from unauthorised or accidental access, processing, erasure, loss or use. Data processors are not directly regulated under the PDPO. The NSL empowers Hong Kong law enforcement to conduct searches, including of electronic devices, for evidence in national security cases, and the NSL permits . 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). In recent years, China has been increasing its regulation in areas such as cybersecurity and data security with legislation such as the Cybersecurity Law 2016 (2016 CSL, with effect from 1 June 2017). 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). CII operators may need to undertake a significant exercise to ensure compliance with the new legislation. Data User means a person who, either alone or jointly or in common with other persons, controls the collection, holding, processing or use of personal data. 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. The PCPD may also enter premises for investigation without a warrant and seize evidence stored on electronic devices (including the power to access, seize, decrypt, search and reproduce the device) (s.66G of the PDPO). Making available or possessing a device or data for committing a crime. The PCPD has issued Guidance on Collection and Use of Biometric Data, including several recommendations on how to handle and keep biometric data in compliance with the PDPO and DPPs (including, for example, to conduct a privacy impact assessment prior to collecting biometric data, to encrypt biometric data both at rest and in transit, and to restrict access to biometric data to authorised persons on a need-to-know basis). where there was a reasonable belief that the disclosure was necessary for preventing or detecting crime; where there was a reasonable belief that the data subject gave their consent to the disclosure; where there was a reasonable belief that disclosure was in the public interest and was made for news activity purposes; and. 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). Under DPP2, data users must take all practicable steps to ensure that personal data is accurate and is not kept longer than is necessary for the fulfilment of the purpose for which the data is used. 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. (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 . CEO fraud is a sophisticated email scam where the attacker sends out phishing/spoofing emails impersonating a company's CEO or some other executive to trick employees into transferring money or providing confidential company information. 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). 486) (the PDPO). The Hong Kong national security law will have implications for privacy, cybersecurity, data, and trade issues. The local cybersecurity legislation may potentially adopt the concept of "critical information infrastructure operators" under the PRC's national Cybersecurity Law, who are subject to heightened security measures such as undergoing national security review when purchasing network products and services that may impact national security, and storing personal information and critical data within the territory. Please provide an overview of the legal and regulatory framework governing data protection and privacy in your jurisdiction (e.g., a summary of the key laws, who is covered by them, what sectors, activities or . Given the general scheme of the PDPO, several sectors and industries impose their own additional data security obligations. A key takeaway is the possible extra-territorial application of the New Cybercrime Offences. We use cookies on our site to remember you, show you content we think you will like and help you to use the site. Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. 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. The PDPO has been under review since the publication of a government paper in January 2020 (LC Paper No CB(2)512/19-20(03)), to strengthen the protection of data subjects. Risk advice We help clients manage legal risks related to cybersecurity, privacy, data governance, eDiscovery, information technology, eCommerce and intellectual property. For example, in the collection of customers medical data and PII, and the engagement of private investigators in insurance claims. Please provide an overview of the legal and regulatory framework governing data protection and privacy in your jurisdiction (e.g., a summary of the key laws, who is . It is potentially sensitive data, and any disclosure could lead to harm to the data subject. Below are some examples of criminal offences under the PDPO and their respective penalties: The sanctions introduced by the Amendment Ordinance in relation to the two-tier doxxing offences are set out in question 1 above. Silence cannot constitute consent. Please refresh the page and/or try again. Cloud computing is both a rapidly growing market in China as well as subject to this increasing regulatory regime. 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. If a data user engages a data processor for handling personal data of other persons, the data user should adopt contractual or other means to ensure that the data processor complies with the same retention requirement. 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 Amendment Ordinance amends the PDPO to include the following definition (used in particular for the doxxing offences): Specified harm means harassment, molestation, pestering, threat or intimidation to the person which may take the form of: psychological pressure; bodily or psychological harm to the person; harm causing the person reasonably to be concerned for or worried about the persons safety or well-being; or damage to the property of the person. Anyone considering their rights and obligations under Hong Kong law should check the status of any proposed amendments. There is currently no obligation to consult with the PCPD, or to issue data breach notifications to the PCPD. the offering, or advertising of the availability, of goods, facilities or services; or. Where direct communication with a data subject is not possible, the data user should consider other practical alternatives to bring the notice to the attention of the data subject such as including a PICS or privacy notice on the relevant website. Compulsory collection of biometric data without any legal basis or reasonable grounds might not be regarded as fair. See further details on this below. This trend has been exacerbated. 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. Other recommendations by the HKLRC include the following: The HKLRC has also requested submissions to a series of questions relating to whether there should be defenses and exemptions to the proposed New Cybercrime Offences and the appropriate scope of such exemptions. Hong Kong was always meant to have a security law, but could never pass one because it was so unpopular. Authorities want to strengthen defences against similar incidents. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Download PDF. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes. In the case of HKSAR v Tsang Wai Lun Wayland and others [2014] 4 HKC 101, the Court of Final Appeal held that proceeds of an indictable offence does not include clean money intended to be used as an instrument for committing an indictable offence. On June 1, 2017, China's Cybersecurity Law went into effect, marking an important milestone in China's efforts to create strict guidelines on cyber governance. On August 20, 2021, the 30th session of the Standing Committee of the 13th National People's Congress (NPC) adopted China's new PRC Personal Information Protection Law (PIPL) 1, which will take effect on November 1, 2021. Hong Kong does not have a stand-alone cybersecurity / cybercrime law. Local data protection laws and scope. Selina has studied investigative reporting at the Columbia Journalism School. Dynamic data inventory. U Law Hong Kong. The PCPD has made clear that sending individuals an opt-out message is not a valid channel of obtaining consent. Regularly conducting security assessments. The law will offer a macro framework that will regulate companies and institutions instead of personal behaviour, the sources said. The extent or timetable of further reforms is not yet publicly known. The amendments fall into three categories: The Amendment Ordinance provides new two-tier doxxing offences as follows: Other proposed amendments to the PDPO were not included in the final Amendment Ordinance. Particularly, they have devised and adopted countless cyber security Yes. LOADING PDF: If there are any problems, click here to download the file. There are also industry-specific data breach notification requirements. Please see full Publication below for more information. The proposed reforms include: The PCPD has recently confirmed that it is considering further amendments to the PDPO with the HKSAR Government. While Hong Kong has yet to enact specific legislation on cybercrime or cybersecurity, this will soon change with the announcement of the proposal to enact a new cybersecurity law during the Chief Executive's 2021 Policy Address ("2021 Policy Address") and the issuance of a consultation paper on "Cyber-dependent crimes and jurisdictional issues" ("Consultation Paper") by the Hong Kong Law Reform Commission (HKLRC). The Cybersecurity Law of the PRC ("CSL") has been in effect since June 1, 2017. data subjects rights of access to and correction of their personal data, and the contact details for the person responsible for handling those requests. DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Data breaches: There is currently no definition of personal data breach in the PDPO, although the PDPO is considering the inclusion of such a definition as part of its review of the PDPO. II Overview of regulations related to cyber breaches in China, including Hong Kong. The key principles under the PDPO for processing personal data are contained in the six DPPs (outlined at question 1 above). 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). [1] 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). while hong kong has yet to enact specific legislation on cybercrime or cybersecurity, this will soon change with the announcement of the proposal to enact a new cybersecurity law during the chief executive's 2021 policy address (" 2021 policy address ") and the issuance of a consultation paper on "cyber-dependent crimes and jurisdictional issues" The NCSC sets out general . The Circular sets out the SFC's key areas of concern and recommended cybersecurity controls which the LCs are expected to follow. The Content is protected under international copyright conventions. 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. 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