persons, controls the collection, holding, processing or use of the data
“
(emphasis added).
69.
Another provision which is of relevance is section 39(l)(d)(i)(B) of
the Ordinance which sets out some grounds on which the Respondent may
"
refuse to carry out investigation or terminate investigation, if none of the
following conditions is fulfilled in respect of the act or practice specified
in the complaint - (B) the relevant data user was able to control, in or from
Hong Kong, the collection, holding, processing or use of the personal data
"
concerned
70.
.
Though the word "control" is not defined in the Ordinance, section
2(1) does define "processing" as "in relation to personal data, includes
amending, augmenting, deleting or rearranging the data, whether by
automated means or otherwise
71.
From the above sections of the Ordinance, it is obvious that
processing has a much restricted and narrower meaning than controlling.
The control test also accords with the definition of data user which should
be the criterion of the territorial competence of the Ordinance.
The
Appellant's contention that either "control requirement" or "process
"
requirement will be sufficient to satisfy the territorial requirement is
without any proper basis. It is even more far fetch for Google LLC to assert
that both requirements need to be satisfied before the Ordinance catches
the operation. The Board finds that the submission of the Respondent on
this issue is well founded and that the proper test is solely the "control
"
requirement
.
52
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