Personal Data (Privacy) (Amendment) Bill 2011

The Law Society reviewed the Personal Data (Privacy) (Amendment) Bill 2011 and submitted views to LegCo’s Bills Committee on 24 November. The Bill was gazetted on 8 July and seeks to introduce, inter alia, changes to address community concerns over the transfer of customers’ personal data by some enterprises to others for direct marketing purposes without informing and/or seeking the consent of the customers concerned. Under the proposed legislation, a data user will be required to allow a data subject an informed choice if the data user intends to use or allow others to use the relevant personal data for direct marketing or if the user intends to sell such data. A response facility must be provided whereby the data subject has 30 days to object. The Law Society submitted that the definition of ‘sell’ should not be limited to ‘gain in money or other property’ but should include other tangible or intangible gains such as business opportunity, business relationship, etc, which may cause a data user to provide the data to another person. Regarding the proposed response facility to be provided to the data subject, submission was made that both the information and the response facility provided by the data user should be easily comprehensible to ‘the data subject’. The Law Society also noted the commercial reality that businesses would set up special purpose vehicles to carry out particular segments of the business and suggested that an ‘intra-group exemption’ should be included to allow flexibility for transfer of data within a group of companies. The Law Society’s submissions are available at: www.hklawsoc.org.hk/pub_e/news/submissions/20111124.pdf

Pilot Scheme to Assist Litigants in Person (LIPs)

The Law Society reviewed the Home Affairs Bureau’s (HAB) proposed two-year pilot scheme to provide free legal advice on procedural matters to LIPs. Given their lack of knowledge of the rules of procedure, LIPs tend to pose problems for the court and the other  parties in court proceedings by increasing the costs of litigation, and leading to more court events, and taking a longer time to deal with the evidence and submissions. The HAB sees a need to provide service to those LIPs who have initiated or are parties to legal proceedings but are not qualified for Legal Aid assistance, and who require advice on the rules and procedures relating to court proceedings. The proposed scheme is meant to be a solution to these problems. Under the proposed scheme, a LIPs office will be set up in the High Court. Lawyers having at least two years’ post-qualification experience are expected to join the Scheme and provide a 45-minute advice session to LIPs at an honorarium of HK$300 for a three-hour shift. The Law Society expressed concern to the LegCo Panel on Administration of
Justice and Legal Services on the proposed scheme. The Law Society’s view was that the Government should not shift the burden to the legal profession to provide free support in order to help satisfy the unmet needs for legal services of the LIPs instead of allocating proper funding to the legal assistance scheme.

Consultation Paper on the Proposed Regulatory Regime for the Over-the-Counter Derivatives Market in Hong Kong

Following the global financial crisis in 2008, the Hong Kong Monetary Authority and Securities and Futures Commission have issued a joint consultation paper on the proposed regulatory regime for the over-the-counter (OTC) derivatives market in Hong Kong. The proposed regime aims to improve overall transparency in the OTC derivatives market, reduce interconnectedness of participants, protect against market abuse and generally reduce systemic risk in the financial system. The Council reviewed the proposed regulatory regime with input from the Investment Products and Financial Services Committee and submitted its views on 29 November 2011. Given the tight time frame for implementation of the new regime by the end of 2012, instead of responding to all of the consultation questions in detail, the Law Society’s submissions concentrated on some of the more important legal issues arising out of the Consultation Paper. The Law Society’s submissions can be downloaded at: www.hklawsoc.org.hk/pub_e/news/submissions/20111129.pdf. For a review of the proposed regulatory regime for OTC derivatives in Hong Kong see page 66 in this month’s issue of Hong Kong Lawyer.