Hong Kong: Right to be Forgotten is declared “not a thing” in Hong Kong

Author: Carolyn Bigg

Unlike Europe, the Personal Data (Privacy) Ordinance (“PDPO”) in Hong Kong does not have a stand-alone “right to be forgotten” (“RTBF”). However, over the past few years, there were commentaries suggesting that there is some basis under Hong Kong law that RTBF exists. This uncertainty has finally been resolved recently in a ruling made by Hong Kong’s Administrative Appeals Board (“AAB”).

The data subject, X, was arrested by the police for his participation in the civil unrest movement in Hong Kong in 2014. His personal information (including his name, posts held in official bodies) were published, and can be easily searched on Google. X lodged a complaint against Google so that Google delists the links to materials which revealed his personal information, and later complained to the Privacy Commissioner (and finally appealed to AAB) on the basis of RTBF.

While the RTBF issue is not the main focus of the ruling (as the AAB dismissed the appeal on the grounds of PDPO’s territorial reach does not extend to Google LLC, the US parent, which operates the Google search engine), the AAB took the opportunity to clarify that there is no stand-alone RTBF in Hong Kong. That being said, it does not mean RTBF is totally irrelevant – the PDPO (under DPP2 and Section 26) is clear that personal data should be removed if (i) personal data is inaccurate; or (ii) there is no longer any purpose (including directly related purpose) to keep the data.

What this means to businesses (particularly those that operate news/media sites or discussion forums in Hong Kong) is there is no legal requirement to comply with data subject requests to remove data from sites that are publicly available on the internet. That being said, this does not eradicate businesses’ obligation to comply with other PDPO provisions, e.g. archiving/removing personal data from sites if the data is inaccurate, or if there is no longer any purpose for keeping the data on the internet.

You may read the full ruling here: https://www.pcpd.org.hk/english/enforcement/decisions/files/AAB_15_2019.pdf

Please contact Carolyn Bigg (Partner) if you have any qusetions or to see what this means for your organisation.