Enforcement in Hong Kong, SAR
The PCPD is responsible for enforcing the Ordinance. Generally, unless a specific offense applies, if a data user is found to have contravened the data protection principles of the Ordinance, the PCPD may issue an enforcement notice requiring the data user to take steps to rectify the contravention. Failure to abide by the enforcement notice is a criminal offense, punishable by a fine of up to HK$ 50,000 and imprisonment for up to two years, as well as a daily penalty of HK$ 1,000 if the offense continues after conviction. In the case of subsequent convictions, additional and more severe penalties apply. There are also certain specific offenses under the Ordinance which are triggered directly without the intermediary step of an enforcement notice. For example:
- breach of certain provisions relating to direct marketing is punishable by a fine of up to HK$1 million and imprisonment of up to five years, depending on the nature of the breach; and
- disclosing personal data of a data subject obtained from a data user without the data user's consent is an offense punishable by a fine of up to HK$1 million and imprisonment of up to five years, where such disclosure is made with certain intent, or where the disclosure causes psychological harm to the data subject.
Appeals from enforcement decisions of the PCPD may be made to the Administrative Appeals Board.
In addition to criminal sanctions, a data subject who suffers damage by reason of contravention of the Ordinance may also seek compensation from the data user through civil proceedings. The PCPD operates an assistance scheme for data subjects in this regard.
In light of high profile data incidents in recent years, the PCPD may further strengthen its enforcement against breaches of the Ordinance through more frequent compliance checks and publication of investigation reports, as well as increased co operation with local and international authorities.
The January 2020 Consultation Paper proposed to confer additional powers on the PCPD to impose administrative fines linked to the annual turnover of the organization, which would, if implemented, result in a significant increase in financial penalties at a much higher amount calculated by reference to annual turnover. The PCPD’s Report issued in February 2023 and the Panel Meeting Summary published in February 2024 also mentioned empowering the PCPD to impose administrative fines linked to annual turnover as an amendment direction.
Doxxing
Under the Amendment Ordinance it is an offence to disclose, without the data subject’s consent, any personal data with an intent to cause harm, or being reckless as to whether harm would or would likely be caused, to the data subject or any family member of the data subject.
Depending on the severity of the offence, any person who commits the offence is punishable on conviction with:
- a fine at level 6 (i.e. HK$100,000) and to imprisonment for 2 years; or
- a fine of HK$1,000,000 and to imprisonment for 5 years if the disclosure causes harm to the data subject or any family member of the data subject.
The PCPD is also empowered to conduct criminal investigations and commence prosecution for doxxing offences. Among other things:
- The PCPD is granted wide powers under the Amendment Ordinance to access documents and information from any person, or require any person to answer questions or provide relevant materials to facilitate an investigation in relation to doxxing offences.
- The PCPD may also, with a warrant, enter premises and seize any materials or devices in the premises which may be relevant to the investigation as well as decrypt any material stored in these devices.
As the anti doxxing provisions have extra territorial effect, the PCPD is empowered to serve cessation notices to operators of electronic platforms including websites and online applications (regardless of whether these operators are based in Hong Kong or outside Hong Kong) where personal data has been disclosed without the individual's consent. The cessation notices will require the recipient of the notice to take steps to remove the doxxing content or restrict the disclosure of personal data which has been made.
Failure to comply with the cessation notice is an offence. Persons contravening the offence will be liable, on first conviction, to a fine at level 5 (i.e. at HK$ 50,000) and to imprisonment for two years. Any subsequent conviction by the same Persons will be subject to a fine at level 6 (i.e. HK$ 100,000) and to imprisonment for two years.
