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In order to protect personal data of HK residents, the PCPD has implemented strict regulations. These regulations include the six core data obligations set out in PDPO, as well as requirements regarding transfer of data. Moreover, the PCPD has issued guidelines on cross-border data transfer, including recommended model clauses for inclusion in contracts dealing with such transfers.
One of the main requirements imposed by the PDPO is that personal data transferred to a location outside Hong Kong must be guaranteed a level of protection similar to that provided under the PDPO (section 33). This requirement applies both to transfers between two locations outside Hong Kong and to transfers between two entities, both of which are outside Hong Kong, where either or both of them are controlled by a person in Hong Kong.
There are many ways that businesses can transfer data abroad. However, it is important to be aware of the statutory requirements that apply, as well as best practices and ethical standards. In addition, it is essential to consider whether or not a transfer of data is necessary. The decision to transfer data abroad should always be made in light of the business objectives and impact on the data subjects involved.
In addition, there are a number of circumstances in which it is necessary to carry out a transfer impact assessment before exporting personal data outside Hong Kong. This is most commonly required in cases where a business in Hong Kong is exporting data to a location that is not bound by laws similar to those of the PDPO.
Another key point to remember is that it is possible for a person in Hong Kong to be a “data user” even though the data is not physically in Hong Kong. This is because the data may be processed, stored and/or used by a data processor that is located in Hong Kong. Therefore, the data user is responsible and liable for compliance with the PDPO.
The PDPO also makes it mandatory for a data user to have a written agreement in place with the data processor to ensure that the data processor is complying with the PDPO and the data user’s other statutory obligations. The written agreement must include certain details, including the purpose for which the data is being transferred and the intended duration of the transfer. Moreover, the agreement must contain provisions regarding security, transparency and audit. It must also be reviewed regularly. Moreover, the data processor must be notified of any changes to the agreement. Failure to do so could result in a breach of the PDPO and other applicable laws.
