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Territorial scope of data protection laws
17.12 The simplest logical method of regulating data transferred
from the territory would be to subject it to the same regulatory
framework as that applied within Hong Kong, whether or not the
data processing was conducted or controlled in Hong Kong. But
giving the law this extraterritorial scope is subject to the
constraints of constitutional law.
A common law doctrine of
uncertain ambit limits the ability of a colonial legislature to enact
laws with extraterritorial effect. The basis of this limitation derives
from the limited grant of legislative power accorded colonies such
as Hong Kong. Hong Kong is only empowered to enact legislation
for
the
"
"
peace, order and good government of the colony. Laws
which do not have a
"
real and substantial relation"
to the colony
are vulnerable to being struck down as invalid by the courts. Such
a nexus may not be made out merely because the data processed
out ofHong Kong relates to a Hong Kong resident. The Hong Kong
(Legislative Powers) Order 1986 provides for some limited
exceptions which would not encompass data protection. There is
also the practical consideration that if the data are not processed
or controlled within Hong Kong, effective enforcement action by
the local oversight authority is precluded. This is no doubt why
'
other countries not subject to this territory s
constitutional
limitations have legislated in terms that ensure that effective
enforcement remains feasible.
27
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