1. Cessation notice

1. Cessation notice

Under the amended Ordinance, the PCPD is empowered to direct a person who is able to take a cessation action in relation to a written or electronic message by means of which a “subject disclosure” is made, i.e. where:

• the personal data is disclosed without the data subject’s consent by another person with an intent to cause any specified harm to the data subject or any family member of the data subject or being reckless as to whether any specified harm would be, or would likely be, caused to the data subject or any family member of the data subject; and

• when the disclosure is made, the data subject is a Hong Kong resident or is present in Hong Kong.

A “cessation action” is defined in section 66L of the Ordinance as any action to cease or restrict the subject disclosure made by means of the message, including the removal of the message. Where the message is an electronic message, a cessation action may include an action to:

• remove the message from the electronic platform on which the message is published;

• cease or restrict access by any person to the message via the relevant platform, the whole of the relevant platform, or the part of it on which the message is published; or

• discontinue the hosting service for the whole of the relevant platform, or the part of it on which the message is published.

a) CIRCUMSTANCES IN WHICH THE PCPD MAY SERVE CESSATION NOTICES

Under section 66M(1) of the Ordinance, the PCPD may serve a cessation notice on a person who is able to take a cessation action, directing that person to take cessation action(s), if the PCPD has reasonable grounds to believe that:

• the personal data in question was disclosed without the relevant consent of the data subject;

• the person disclosing the personal data had an intent to or was being reckless as to whether any specified harm would be, or would likely be, caused to the data subject or any family member of the data subject;

• when the disclosure was made, the data subject was a Hong Kong resident or was present in Hong Kong; and

• a Hong Kong person is able to take a cessation action (whether in Hong Kong or not) in relation to the message.

As the cyberworld has no borders, the PCPD may also serve a cessation notice on a non-Hong Kong service provider in relation to electronic messages, such as the operator of an overseas social media platform, directing it to take cessation actions under section 66M(2) of the Ordinance.

b) CONSEQUENCES OF FAILURE TO COMPLY WITH CESSATION NOTICES

Non-compliance of cessation notice is an offence under section 66O(1) of the Ordinance:

• On the first conviction, the offender will be liable for a fine of HK$50,000 and imprisonment for 2 years; and in the case of a continuing offence, for a further fine of HK$1,000 for every day during which offence continues;

• On each subsequent conviction, the offender will be liable for a fine of HK$100,000 and imprisonment for 2 years; and in the case of a continuing offence, for a further fine of HK$2,000 for every day during which the offence continues.

It is a defence for a person charged with section 66O(1) if he can establish that:

1. he had a reasonable excuse for contravening the cessation notice; or

2. without limiting (i) above, it was not reasonable to expect the person to comply with the cessation notice:

• having regard to the nature, difficulty or complexity of the cessation action concerned;

• because the technology necessary for complying with the cessation notice was not reasonably available to him; or

• because there was a risk of incurring substantial loss to, or otherwise substantially prejudicing the right of, a third party.

c) APPEAL AGAINST CESSATION NOTICE

Under section 66N of the Ordinance, any person who is affected by the cessation notice, such as the disclosers of the doxxing content and operators of the relevant electronic platforms, may lodge an appeal to the Administrative Appeals Board within 14 days after the date on which a cessation notice is served.

However, regardless of whether an appeal has been lodged, any person who receives a cessation notice must comply with its requirements within the timeframe specified therein.

The PCPD may cancel a cessation notice where appropriate by serving a written notice, for example, when a decision is handled down by the Administrative Appeals Board.