Privacy Commissioner releases new leaflet on legal assistance to aggrieved data subjects

On 21 January 2013, the Secretary for Constitutional and Mainland Affairs appointed 1 April 2013 as the date on which the provisions regarding the provision of legal assistance to aggrieved persons under the Personal Data (Privacy) Amendment Ordinance 2012 ("Legal Assistance Scheme") will come into force.

The Legal Assistance Scheme is aimed at providing legal assistance to those who are aggrieved by personal data privacy infringements to seek compensation from the data user for damage. Legal assistance may be provided in the form of legal advice, mediation and legal representation in court (which may include any steps preliminary or incidental to the proceedings or in reaching a compromise or in bringing an end to proceedings).

Corresponding to the introduction of the Legal Assistance Scheme, the Privacy Commissioner published a leaflet entitled "Legal Assistance for Civil Claims under the Personal Data (Privacy) Ordinance" to explain the details of the Legal Assistance Scheme.

In this article, we will summarise the main topics covered by the leaflet.

Application for legal assistance

Pursuant to section 66 of the Personal Data (Privacy) Ordinance ("PDPO"), an individual who suffers damage by reason of a contravention of a requirement under the PDPO by a data user relating to his personal data is entitled to seek compensation from the data user for the damage, which may include injury to feelings.

With the introduction of the Legal Assistance Scheme, the Privacy Commissioner may provide legal assistance to an aggrieved individual who wishes to pursue legal proceedings for compensation under section 66.

However, before applying for legal assistance, the Privacy Commissioner has indicated that the individual should normally have filed a complaint with the Privacy Commissioner and that a decision has been handed down by the Privacy Commissioner regarding the complaint.

In other words, an application for legal assistance should only be made to the Privacy Commissioner after the complaint handling procedures have concluded.

It should be noted that the Legal Assistance Scheme only applies to civil claims.

Factors to be considered in assessing an application for legal assistance

On receiving an application for legal assistance, the Privacy Commissioner has discretion whether or not to grant the application. Pursuant to the PDPO, the Privacy Commissioner must consider the following factors:-

• Whether the case raises a question of principle (e.g. whether the case would establish useful legal precedents, raises grave privacy and data protection concerns or involves an issue of legal uncertainty);

• Whether or not it is unreasonable to expect the individual to deal with the case without assistance in light of the complexity of the case or the relative positions between the individual and other parties to the case.

The leaflet also lists out some of the factors which the Privacy Commissioner may also take into account when assessing an application.

Granting of legal assistance

As discussed above, the Privacy Commissioner has discretion whether to grant an application for legal assistance and the individual will be notified in writing of the decision.

If an application is refused, the Privacy Commissioner will also provide reasons why the application has been refused.

On the other hand, if the application is granted, the Privacy Commissioner will require the individual to sign an agreement setting out the terms and conditions under which the Privacy Commissioner may provide legal assistance to the individual.

Discontinuance of legal assistance

Notwithstanding that an application for legal assistance has been granted, the Privacy Commissioner has absolute discretion to review its decision at any stage of providing assistance. The leaflet gives some examples of the circumstances under which the Privacy Commissioner may review its decision, including the following:-

• There is fresh evidence or information which undermines the individual's complaint;
• The claim for compensation does not have a reasonable prospect of success;
• The individual knowingly gives false or misleading information to the Privacy Commissioner.

Review of decision on legal assistance

The PDPO does not provide any right of appeal to individuals in the event the Privacy Commissioner exercises its discretion to refuse an application for legal assistance or discontinue providing legal assistance. However, the Privacy Commissioner may, in its discretion and upon receiving a written request from the individual, decide to review its decision on the same.

However, the Privacy Commissioner has indicated that a request for review of a refusal to grant legal assistance should only be made when there has been a material change of circumstances and the request should clearly set out what these changes are. On the other hand, in a request to review a decision to discontinue providing legal assistance, the individual should set out the grounds in support of his request.

In both cases, the request should be accompanied by supporting evidence.

Legal fees and costs

Normally, the costs of providing legal assistance under the Legal Assistance Scheme will be borne by the Privacy Commissioner. However, in case the individual is ordered to pay the costs of the defendant or other parties to the proceedings, the Privacy Commissioner may not cover the same if the individual had acted unreasonably in the course of the proceedings leading to an adverse order for costs being made against him.

Frequently asked questions

Towards the end of the leaflet, the Privacy Commissioner has set out in question and answer format some commonly asked questions about the Legal Assistance Scheme. These are:-

Key Contacts

Cynthia Chung

Partner | Corporate Commercial | Employment and Pensions

Email or call +852 2825 9297