| This is the text of the Hong Kong Personal Data (Privacy) Ordinance, with hypertext (click and jump) links to all paragraph and section cross references, and to the definitions of all terms defined in the Ordinance. For information about the conventions adopted in setting this out, please refer to the separate page. |  |
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PART VIII
EXEMPTIONS
51. Interpretation
Where any personal data are exempt from any provision of this
Ordinance by virtue of this Part, then, in respect of those data and
to the extent of that exemption, that provision neither confers any
right nor imposes any requirement on any person, and the other
provisions of this Ordinance which relate (whether directly or
indirectly) to that provision shall be construed accordingly.
52. Domestic purposes
Personal data held by an individual and—
(a) concerned only with the management of his personal, family
or household affairs; or
(b) so held only for recreational purposes,
are exempt from the provisions of the data protection principles,
Parts IV and V and sections 36 and 38(b).
53. Employment — staff planning
Personal data which consist of information relevant to any staff
planning proposal to—
(a) fill any series of positions of employment which are
presently, or may become, unfilled; or
(b) cease any group of individuals' employment,
are exempt from the provisions of data protection principle 6 and
section 18(1)(b).
54. Employment — transitional provisions
(1) Personal data—
(a) held by a data user—
(i) immediately before the appointed day;
(ii) who is the employer of the data subject; and
(iii) relating to the employment of the subject; and
(b) provided by an individual on the implicit or explicit
condition that the subject would not have access to the
data,
are exempt from the provisions of data protection principle 6 and
section 18(1)(b) until the expiration of 7 years immediately
following the enactment of this Ordinance.
(2) Personal data—
(a) to which subsection (1)(a) applies; or
(b) held by a data user—
(i) but not so held at any time before the appointed day;
(ii) who is the employer of the data subject; and
(iii) relating to the employment of the subject,
are exempt from the provisions of data protection principle 6 and
section 18(1)(b) until 1 July 1996, 1998.
55. Relevant process
(1) Personal data the subject of a relevant process are exempt
from the provisions of data protection principle 6 and section
18(1)(b) until the completion of that process.
(2) In this section—
"completion" in relation to a relevant process, means the making
of the determination concerned referred to in paragraph (a) of the
definition of "relevant process";
"relevant process"—
(a) subject to paragraph (b), means any process whereby personal
data are considered by one or more persons for the purpose
of determining, or enabling there to be determined—
(i) the suitability, eligibility or qualifications of the
data subject for—
(A) employment or appointment to office;
(B) promotion in employment or office or continuance
in employment or office;
(C) removal from employment or office; or
(D) the awarding of contracts, awards (including
academic and professional qualifications),
scholarships, honours or other benefits;
(ii) whether any contract, award (including academic and
professional qualifications), scholarship, honour or
benefit relating to the data subject should be
continued, modified or cancelled; or
(iii) whether any disciplinary action should be taken
against the data subject for a breach of the terms of
his employment or appointment to office;
(b) does not include any such process where no appeal, whether
under an Ordinance or otherwise, may be made against any
such determination.
56. Personal references
Personal data held by a data user which consist of a personal
reference—
(a) given by an individual other than in the ordinary course of
his occupation; and
(b) relevant to another individual's suitability or otherwise to
fill any position of employment or office which is
presently, or may become, unfilled,
are exempt from the provisions of data protection principle 6 and
section 18(1)(b)—
(i) in any case, unless the individual referred to in
paragraph (a) has informed the data user in writing
that he has no objection to the reference being seen
by the individual referred to in paragraph (b) (or
words to the like effect); or
(ii) in the case of a reference given on or after the day
on which this section comes into operation, until the
individual referred to in paragraph (b) has been
informed in writing that he has been accepted or
rejected to fill that position or office (or words to
the like effect),
whichever first occurs.
57. Security, etc. in respect of Hong Kong
(1) Personal data held by or on behalf of the Government for the
purposes of safeguarding security, defence or international relations
in respect of Hong Kong are exempt from the provisions of data
protection principle 6 and section 18(1)(b) where the application of
those provisions to the data would be likely to prejudice any of the
matters referred to in this subsection.
(2) Personal data are exempt from the provisions of data
protection principle 3 in any case in which—
(a) the use of the data is for any of the purposes referred to
in subsection (1) (and whether or not the data are held for
any of those purposes); and
(b) the application of those provisions in relation to such use
would be likely to prejudice any of the matters referred to
in that subsection,
and in any proceedings against any person for a contravention of any
of those provisions it shall be a defence to show that he had
reasonable grounds for believing that failure to so use the data
would have been likely to prejudice any of those matters.
(3) Any question whether an exemption under subsection (1) is or
at any time was required in respect of any personal data may be
determined by the Governor or Chief Secretary; and a certificate
signed by the Governor or Chief Secretary certifying that the
exemption is or at any time was so required shall be evidence of that
fact.
(4) For the purposes of subsection (2), a certificate signed by
the Governor or Chief Secretary certifying that personal data are or
have been used for any purpose referred to in subsection (1) shall be
evidence of that fact.
(5) The Governor or Chief Secretary may, in a certificate
referred to in subsection (3) or (4), in respect of the personal data
to which the certificate relates and for the reasons specified in
that certificate, direct the Commissioner not to carry out an
inspection or investigation and, in any such case, the Commissioner
shall comply with the direction.
(6) A document purporting to be a certificate referred to in
subsection (3) or (4) shall be received in evidence and, in the
absence of evidence to the contrary, shall be deemed to be such a
certificate.
(7) In this section—
"international relations" includes relations with any
international organization;
"security" includes the prevention or preclusion of persons
(including persons detained in accordance with the provisions of the
Immigration Ordinance (Cap. 115)) entering and remaining in Hong Kong
who do not have the right to enter and remain in Hong Kong.
58. Crime, etc.
(1) Personal data held for the purposes of—
(a) the prevention or detection of crime;
(b) the apprehension, prosecution or detention of offenders;
(c) the assessment or collection of any tax or duty;
(d) the prevention, preclusion or remedying (including
punishment) of unlawful or seriously improper conduct, or
dishonesty or malpractice, by persons;
(e) the prevention or preclusion of significant financial loss
arising from—
(i) any imprudent business practices or activities of
persons; or
(ii) unlawful or seriously improper conduct, or dishonesty
or malpractice, by persons;
(f) ascertaining whether the character or activities of the data
subject are likely to have a significantly adverse impact on
any thing—
(i) to which the discharge of statutory functions by the
data user relates; or
(ii) which relates to the discharge of functions to which
this paragraph applies by virtue of subsection (3); or
(g) discharging functions to which this paragraph applies by
virtue of subsection (3),
are exempt from the provisions of data protection principle 6 and
section 18(1)(b) where the application of those provisions to the
data would be likely to—
(i) prejudice any of the matters referred to in this
subsection; or
(ii) directly or indirectly identify the person who is the
source of the data.
(2) Personal data are exempt from the provisions of data protection
principle 3 in any case in which—
(a) the use of the data is for any of the purposes referred to
in subsection (1) (and whether or not the data are held for
any of those purposes); and
(b) the application of those provisions in relation to such use
would be likely to prejudice any of the matters referred to
in that subsection,
and in any proceedings against any person for a contravention of any
of those provisions it shall be a defence to show that he had
reasonable grounds for believing that failure to so use the data
would have been likely to prejudice any of those matters.
(3) Paragraphs (f)(ii) and (g) of subsection (1) apply to any
functions of a financial regulator—
(a) for protecting members of the public against financial loss
arising from—
(i) dishonesty, incompetence, malpractice or seriously
improper conduct by persons—
(A) concerned in the provision of banking, insurance,
investment or other financial services;
(B) concerned in the management of companies;
(C) concerned in the management of occupational
retirement schemes within the meaning of the
Occupational Retirement Schemes Ordinance (Cap.
426); or
(D) who are shareholders in companies; or
(ii) the conduct of discharged or undischarged bankrupts;
(b) for maintaining or promoting the general stability or
effective working of any of the systems which provide any
of the services referred to in paragraph (a)(i)(A); or
(c) specified for the purposes of this subsection in a notice
under subsection (4).
(4) For the purposes of subsection (3), the Governor may, by
notice in the Gazette, specify a function of a financial regulator.
(5) It is hereby declared that—
(a) subsection (3) shall not operate to prejudice the generality
of the operation of paragraphs (a), (b), (c), (d) and (f)(i)
of subsection (1) in relation to a financial regulator;
(b) a notice under subsection (4) is subsidiary legislation.
59. Health
Personal data relating to the physical or mental health of the
data subject are exempt from the provisions of either or both of—
(a) data protection principle 6 and section 18(1)(b);
(b) data protection principle 3,
in any case in which the application of those provisions to the data
would be likely to cause serious harm to the physical or mental
health of—
(i) the data subject; or
(ii) any other individual.
60. Legal professional privilege
Personal data are exempt from the provisions of data protection
principle 6 and section 18(1)(b) if the data consist of information
in respect of which a claim to legal professional privilege could be
maintained in law.
61. News
(1) Personal data held by a data user—
(a) whose business, or part of whose business, consists of a
news activity; and
(b) solely for the purpose of that activity (or any directly
related activity),
are exempt from the provisions of—
(i) data protection principle 6 and sections 18(1)(b) and 38(i)
unless and until the data are published or broadcast
(wherever and by whatever means);
(ii) sections 36 and 38(b).
(2) Personal data are exempt from the provisions of data
protection principle 3 in any case in which—
(a) the use of the data consists of disclosing the data to a
data user referred to in subsection (1); and
(b) such disclosure is made by a person who has reasonable
grounds to believe (and reasonably believes) that the
publishing or broadcasting (wherever and by whatever means)
of the data (and whether or not they are published or
broadcast) is in the public interest.
(3) In this section—
"news activity" means any journalistic activity and
includes—
(a) the
(i) gathering of news;
(ii) preparation or compiling of articles or programmes
concerning news; or
(iii) observations on news or current affairs, for the
purpose of dissemination to the public; or
(b) the dissemination to the public of—
(i) any article or programme of or concerning news; or
(ii) observations on news or current affairs.
62. Statistics and research
Personal data are exempt from the provisions of data protection
principle 3 where—
(a) the data are to be used for preparing statistics or carrying
out research;
(b) the data are not to be used for any other purpose; and
(c) the resulting statistics or results of the research are not
made available in a form which identifies the data subjects
or any of them.
63. Exemption from section 18(1)(a)
Where a data access request relates to personal data which are
or, if the data existed, would be exempt from section 18(1)(b) by
virtue of section 57 or 58, then the data are also exempt from
section 18(1)(a) if the interest protected by that exemption would be
likely to be prejudiced by the disclosure of the existence or non-
existence of those data.
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Contents
[Prelim. & definitions]
[Admin.] [Codes of practice]
[Returns & register]
[Data access & correction]
[Matching & transfers]
[Complaints, etc.] [Exemptions]
[Offences] [Forms, fees, etc.]
[Sched 1: Data protection principles]
[Sched 2: Finances]
[Sched 3: Prescribed information]
[Sched 4: Other ordinances]
[Sched 5: Prescribed matters]
[Sched 6: Warrants]
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