{"id":596,"date":"2021-06-25T18:24:33","date_gmt":"2021-06-25T10:24:33","guid":{"rendered":"http:\/\/devwp.visibleone.io\/p136\/?p=596"},"modified":"2021-06-29T11:27:08","modified_gmt":"2021-06-29T03:27:08","slug":"complaints-penalties-and-legal-assistance","status":"publish","type":"post","link":"https:\/\/familyclic.hk\/en\/topics\/daily-lives-legal-issues\/data-subject-of-personal-data\/complaints-penalties-and-legal-assistance\/","title":{"rendered":"Complaints, penalties and legal assistance"},"content":{"rendered":"

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VI. Complaints, penalties and legal assistance<\/h1>\n

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After receiving a complaint in relation to possible contraventions of the\u00a0Personal Data (Privacy) Ordinance<\/a>\u00a0, the staff of the Office of the Privacy Commissioner for Personal Data (PCPD) would first conduct preliminary enquires to see if the complainant holds substantial grounds. After preliminary enquiries into the complaint, the PCPD may inform the complainant of its preliminary views and ask the opposite party to take remedial action to resolve the issues surrounding the complaint.<\/p>\n

If the dispute cannot be resolved by mediation, the PCPD may conduct a formal investigation. If the complaint involves suspected contravention of a serious nature, the PCPD would immediately conduct a formal investigation instead of making preliminary enquiries. If after investigation it is found that there are contraventions on the part of the data user, an enforcement notice would be served on that data user by the PCPD directing him\/her to take any necessary remedial action. Data users who do not comply with the PCPD’s enforcement notice commit an offence and are liable to a fine or imprisonment. The Commissioner can also instigate prosecution action. Under the amended Ordinance. The time for preparing information for prosecution was extended from six months to two years from the date of the commission of the offence.<\/p>\n

If a data subject suffers damage (including injury to feelings) as a result of a contravention of the Ordinance by a data user, the data subject can sue the data user for compensation through civil proceedings. Under the amended Ordinance, the Commissioner can grant legal assistance to that person.<\/p>\n

A. Complaint-handling policy and complaint procedures<\/h2>\n

Data subjects should first lodge a complaint with the data user who does not handle his or her personal data in accordance with the Ordinance.<\/p>\n

If the alleged offender fails to give a satisfactory reply and the data subject decides to lodge a complaint with the PCPD, the complainant is advised to first learn about the complaint-handling policy of the PCPD. For details, please visit the\u00a0PCPD webpage on this policy<\/a>\u00a0or call its hotline at 2827 2827.<\/p>\n

The\u00a0complaint procedure<\/a>, accompanied by a\u00a0flowchart<\/a>\u00a0, can be found on the PCPD website. Complainants should note that the time limit for lodging a complaint is\u00a0two years<\/strong>\u00a0from the date of their actual knowledge of the privacy-intrusive act or practice, but it is recommended that they lodge the complaint as soon as possible.<\/p>\n

B. Enforcement notice and penalties<\/h2>\n

Under\u00a0section 50<\/a>\u00a0of the amended Ordinance, the Commissioner has wider power to serve enforcement notices. If he finds a contravention of a requirement under the Ordinance, the Commissioner can serve an enforcement notice on the data user concerned to direct it to take the necessary steps to remedy the contravention, irrespective of whether the contravention will continue or be repeated.<\/p>\n

Any data user who fails to comply with the PCPD’s enforcement notice commits an offence and is liable to a fine at level 5 (currently $50,000) and to imprisonment for two years. The amended Ordinance provides for a heavier penalty for a second and subsequent conviction for contravening an enforcement notice. The penalty is a fine at level 6 (currently $100,000) and imprisonment of two years and, in the case of a continuing offence, a daily fine of $2,000. (\u00a0Section 50A(1)<\/a>\u00a0)
If data users comply with an enforcement notice issued against them within a specified period, and subsequently intentionally commit the same offence, they are liable to a fine of $50,000 and to imprisonment for two years and, in the case of a continuing offence, a daily fine of $1,000. (\u00a0Section 50A(3)<\/a>\u00a0)<\/p>\n

For more details of other offences under the Ordinance, please refer to\u00a0section 64<\/a>\u00a0of the Ordinance.<\/p>\n

C. Legal assistance<\/h2>\n

If data subjects suffer any damage caused by a data user in contravention of the requirements under the Ordinance, they can make a civil claim for compensation from the data user for the damage: i.e. sue the data user in a court (\u00a0section 66<\/a>\u00a0). However, the data subject may have difficulty in pursuing the lawsuit because some cases may be more complex and may incur considerable legal costs and expenses. In view of this, section 66B of the amended Ordinance authorises the Commissioner to grant legal assistance to aggrieved individuals seeking such compensation.
This legal assistance takes the form which the Commissioner considers most appropriate, including but not limited to the following:<\/p>\n