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AAB N0.15/2019 - HEARING ON 7-8 MAY 2020 COMPARISON TABLE OF PARTIES' POSITIONS ON ISSUES IN QUESTION Privacy Commissioner's (“PC，，）position Appellant?s (“X”）position Control Requirement is a necessary condition. Control Requirement is a sufficient condition. Same as PC Same as GL Different from GL or PC. Different from X Different firom X Processing Requirement is a necessary condition. Processing Requirement is NOT a condition. Different from PC Different from GL or X Google LLC's (“GL，，）arguments Issue 1. Territorial scope of the Personal Data (Privacy) Ordinance (“PDPO，，) 1 . 2 Control Requirement is a necessary condition. . Need to satisfy BOTH Processing Requirement AND Control Requirement to establish jurisdic- Same as GL Different from PC. Same as X 3 Processing Requirement is a sufficient condition. Only need to satisfy Control Requirement (but not the Processing Requirement). Only need to satisfy EITHER the Processing Requirement OR the Control Requirement. Different from GL or X Different from GL or PC tion. Different from PC or X

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X v. Privacy Commissioner for Personal Data

Case Law

Country

Hong Kong

Country Location

Latitud: 22.3964

Longitud: 114.1095

Country Location (vinculado Case Law): Hong Kong

Decision Date: 7 ago 2020

Case Status: Cerrado

Case Outcome (Procedural)

Affirmed Lower Court
Motion Denied

Keywords

Defamation / Reputation
Digital Rights
Right to be Forgotten

Judicial Body: Administrative Court

Court Name: Hong Kong Administrative Appeals Board

Case Number: Appeal No. 15/2019

Case Summary: In 2020, the Hong Kong Administrative Appeals Board determined that the territorial boundary of the Personal Data (Privacy) Ordinance extended only to data users who have operations controlled in/ from Hong Kong. The Board rejected an Appeal where an individual sought Google LCC to delist links from its search engine results as they led to the news pertaining to his arrest for participation in a protest, thereby infringing his right to be forgotten. While the Ordinance dealt with a specific area of trans-border transfer of data, it did not make any inference to widen its applicability to persons outside of Hong Kong. By application of “the sole and proper” test, the Board held that Google LLC did not qualify as a data user under the Ordinance as no part of the data cycle (i.e., collection, holding, processing, and use) was based out of Hong Kong. Further, the Appellant had failed to point out substantive and convincing materials both within and outside of the Ordinance to support the extra-territorial applicability of the Ordinance. The Board concluded that there was no independent right to be forgotten under applicable laws of Hong Kong.

Case Significance: This decision expands freedom of expression since it established that the territorial jurisdiction of the Personal Data (Privacy) Ordinance only extends to data users who have operations controlled in or from Hong Kong. Further, freedom of expression has also been expanded, on the basis of the absence of extra-territorial jurisdiction, as the public right to access information has been given weightage over privacy rights of an individual. Likewise, through this ruling, the Board clarified that an independent “right to be forgotten” did not exist under Hong Kong’s privacy law and a right of erasure could only be enforced, strictly, in terms of the Ordinance.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The significance of this case is undetermined at this point in time.

Related Caselaw

Source Name and URL: Global Freedom of Expression

Collection

Columbia

Date Updated: 3 jul 2024

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Judgment
English
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CYRILLA: Global Digital Rights Law

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X v. Privacy Commissioner for Personal Data

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