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Nevertheless, there are still a growing number of situations in which it may be necessary for a business to conduct a transfer impact assessment, particularly where the law of an EEA jurisdiction applies to the personal data that it exports from or to Hong Kong. In these circumstances, a business will also need to agree to the standard contractual clauses proposed by the data exporter and contribute to any procedures aimed at ensuring compliance with them.
In these cases, it is important to understand the purpose for which the personal data has been collected and how that information may be used. For example, the PCPD requires a data user to expressly inform a data subject on or before collecting their personal data of the purposes for which it may be used, and of the classes of persons to whom the data may be transferred. This is because a transfer constitutes a use of personal data and requires the voluntary and express consent of the data subject.
The PCPD has published two sets of recommended model clauses, one for transfers between a Hong Kong entity and another located outside of the territory, and one for transfers between a data user and its data processor, when such a transfer takes place within the context of the “one country, two systems” principle. These model clauses are intended to cover the most common scenarios for data transfers between Hong Kong entities and their counterparties located outside of the territory.
As such, there is a need for businesses to consider whether their transfer impact assessment process has been sufficiently comprehensive. In addition, businesses should review their PICS to make sure that they have notified the data subjects of their intention to transfer their personal data and the purpose for which it is being transferred.
In a globalized business environment, it is inevitable that personal data will need to be transferred between different jurisdictions. While this is often done for legitimate reasons, it is important that data transfers take place in a way that is compliant with the local laws of the destination jurisdiction. Those laws should reflect the basic principles of the EU’s GDPR, and include the necessary safeguards to protect personal data. For this reason, the current position of Hong Kong in respect of section 33 appears out of step with international trends. However, the need for efficient and reliable means of transferring data with mainland China and internationally will likely drive change in this area. In the meantime, the Hong Kong Privacy Commissioner’s office has an advisory in place to assist businesses with their transfer impact assessments.
