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Whether a Hong Kong data exporter is required to conduct a transfer impact assessment (TIA) will depend on the jurisdiction of the destination country. Several data privacy regimes now include some element of extra-territorial application. This is not the case in Hong Kong, where the territorial scope of the PDPO only applies to a person who has operations controlling collection, holding, processing or use of personal data in, or from, Hong Kong.
A TIA will assess the risk of transferring data from one jurisdiction to another, taking into account the rights and freedoms of individuals in both the source and destination countries. It will consider factors such as whether laws and practices in the destination country are aligned with European data protection standards; whether there are any laws or regulations that prohibit the transfer of personal data; and whether there is a statutory basis to allow the transfer.
If a TIA indicates that there is a significant risk of the proposed transfer, the data exporter will need to either implement adequate supplementary measures or suspend the proposed transfer. In limited circumstances, the data exporter may be able to proceed without implementing supplementary measures if it can demonstrate and document that there is no reasonable cause to believe that relevant and problematic legislation will be interpreted or applied in practice in a way that would render the transfer of personal data unenforceable or unlawful.
As a result of the increasing number of data flows between Hong Kong and mainland China, it is crucial to understand the impact that these cross-border transfers have on data privacy regulation. In this overview, Padraig Walsh from the Tanner De Witt Data Privacy practice group guides you through some key points to consider in respect of data transfers. It is essential for any business that carries out international data transfers to be aware of these key points, in order to ensure compliance with local data privacy regulation and minimise the risks associated with cross-border data transfers.
