With the passing of the Personal Data (Privacy) (Amendment) Ordinance 2021 (the “Amendment Ordinance”) on 8 October 2021, the Privacy Commissioner for Personal Data (the “Commissioner”) is now empowered with new investigatory powers combat doxxing activities in Hong Kong effectively.
We set out below a summary of the investigatory powers available to the Commissioner.
The Commissioner’s investigatory powers are in line with those available to other regulatory bodies such as the Securities and Futures Commission and the Insurance authority.
Power to Require for materials and assistance
Section 66D empowers the Commissioner to:-
- issue written notice to require a person to provide the Commissioner with any material in the person’s possession or control relating to a matter that the Commissioner reasonably believes to be relevant to the specified investigation;
- require a person to attend before the Commissioner at a specified time and place to answer any questions related to the specified investigation;
- require a person to answer any written question related to the specified investigation;
- require a person to make a statement relevant to the specified investigation; and
- require a person to provide all the assistance that the Commissioner may reasonably require for the investigation.
Powers in relation to premises, electronic devices, and suspected offenders
Section 66G empowers the Commissioner to apply for a warrant to (i) enter and search premises; (ii) carry out the investigation in the premises; and (iii) seize, remove and detain any material found in the premises which contains evidence relating to the investigation.
Further, the Commissioner may apply for a warrant to (i) access, seize and detain the electronic device; (ii) decrypt any material stored in such electronic device; (iii) search for any material relevant to the investigation in the electronic device; and (iv) reproduce the relevant material stored in the electronic device in other forms.
The same section also grants the Commissioner power to access electronic devices without a court warrant in circumstances where the Commissioner is satisfied that a delay caused by an application for a warrant would likely defeat the purpose of accessing the electronic device, or where it is not reasonably practicable to make such application. The Commissioner would, however, not be able to decrypt an electronic device lawfully without the authority of a warrant.
Power to stop, search and arrest persons
Section 66H provides that an authorised officer may, without warrant, stop, search and arrest any person whom the officer reasonably suspects of having committed a doxxing related offence.
Similar to other investigatory powers of other regulatory bodies, there are offences in relation to the Commissioner’s Investigatory powers such as failure to comply with a requirement of a notice given pursuant to Section 66D and obstructing the Commissioner’s exercise of its powers under Section 66G.
In light of the determination of the Government to combating doxxing activities, it is important for businesses to facilitate the Commissioner’s investigation whenever a written notice is issued and to comply with the Commissioner’s request to and exercise of its powers.
