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PDPO does not contain a specific restriction on the export of personal data from Hong Kong; however, in certain circumstances a business that falls under its purview must conduct a transfer impact assessment (TIA) before exporting personal data overseas. A TIA involves reviewing local laws, practices and policies in the destination jurisdiction to identify whether any pose risks to data privacy that require mitigating measures to be implemented.
TIA typically involves determining whether a business transferring data will be able to comply with the laws of its destination jurisdiction when processing activities are performed as part of export activities. This will involve considering such factors as nature and purpose of data processing activities undertaken, who receives access, categories of people affected by its transfer as well as whether retention can occur according to applicable local legislation.
If a business fails to satisfy all of these criteria, then it is unlikely that personal data can be exported legally from Hong Kong and therefore, section 33 no longer applies. Instead, in such an instance the transferring business must notify data subjects that their personal information will be sent outside Hong Kong and obtain their voluntary and express consent prior to proceeding with that transfer.
However, if the business with which the data subject resides has operations within the European Economic Area and offers goods or services to data subjects in that territory as part of its processing activities or monitors their behavior (for instance by tracking them online), GDPR applies. As such, in these instances it will be necessary to conduct a Third-Issue Assessment before data can be exported from the European Economic Area to Hong Kong – though undertaking such an analysis should be less onerous than doing so under GDPR. GDPR’s requirement that businesses transferring over from Hong Kong review their PICS makes the PIA process significantly simpler for exporting businesses heading to Europe; this benefit has proven significant for many Hong Kong-based exporters that export products or services there. Businesses could take advantage of the streamlined TIA process as a model for creating contractual clauses with European data processors that comply with GDPR more easily, thus making transferring data from Hong Kong much less complex for European companies that must abide by both GDPR and PDPO compliance rules simultaneously. Furthermore, this would make the entire TIA process significantly more transparent for both parties involved.