Privacy v. Public Order: Hong Kong’s DPA seeks balanced response to ban on face covering

The violent actions on the streets of Hong Kong have led to a government regulation banning the use of face masks starting on Sunday, 6 October. On 4 October, the office of the Privacy Commissioner for Personal Data (PCPD) gave the following response:

  1. “While the prohibition on face covering would expose the faces of individuals, without the video recording of facial information it does not constitute collection of “Personal Data” under Personal Data (Privacy) Ordinance (Ordinance). Hence the prohibition on face covering during protests is not … contrary to the Ordinance.”
  2. “Personal privacy right is a fundamental human right, and has long been protected by the laws of Hong Kong. It was said that one’s privacy might be constrained upon the enactment of [the] Prohibition on Face Covering Regulation. However, personal privacy right is not an absolute right, and is subject to legal restrictions, with the important considerations including public interest.”
  3. “While exercising personal privacy rights, balance must be struck with public interest, with the consideration of both the protection of personal data privacy and the interests of society at large, including public order and national security.”
  4. “In order to promptly and effectively detect a crime, … seriously improper conduct, dishonesty or malpractice, and with the consideration to apprehend, prosecute or detain an offender, the personal data privacy right of the offender will not override the interests of society at large. A person offending the law cannot take privacy as a “refuge” or “sanctuary” of his wrongdoings.”
  5. “If government or law enforcement agencies are involved in collection of personal data (such as video recording of members of the public in protests), they must comply with requirements of the Ordinance in control of the collection, holding, processing or use (including disclosure and transfer) of personal data.”

PL&B Comment: The question arises whether Hong Kong police and security forces are able, once they have video footage of (unmasked) protestors, to subject it to facial recognition software (and any accessible databases, particularly the HK ID card), so as to identify protestors en masse, without the need for individual warrants.