Social media activity and usage
Estimated population active on social media in 2023 * *Source
Platforms ranked by usage in 2023*
1.WhatsApp
2. Facebook
3. Instagram
4. WeChat
5. Facebook Messenger
Current laws and regulations relevant to social media
Hong Kong National Security Law (NSL)
The NSL was introduced on June 30, 2020, and prohibits a wide range of activities under the four main offenses of separatism, subversion, terrorism and colluding with foreign forces in Hong Kong. In particular, Article 43 of the NSL and the implementing measures give Hong Kong police the power to order the blocking and deletion of content by message publishers, platform service providers, hosting service providers and/or network service providers (including those operating social media platforms).
Trade Description Ordinance (TDO)
While social media marketing is increasingly prevalent, the TDO protects consumers from false trade descriptions in respect of goods and services, misleading omissions, aggressive commercial practices, bait advertising and bait-and-switch tactics, etc., involved in any form of marketing (including those on social media).
Basic Law
In Hong Kong, freedom of speech is enshrined under Article 27 of the Basic Law, a constitutional document of Hong Kong. It stipulates: “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.” Article 23 of the Basic Law requires the Hong Kong Special Administrative Region to enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies. While no such local legislation was previously enacted under Article 23, the Security Bureau commenced the public consultation on the legislative proposals for local legislation for safeguarding national security on January 30, 2024, and the consultation will end on February 28, 2024.
Source: Basic Law Article 23 Legislation: Safeguarding National Security Bill
Data protection laws applicable to social media
Personal Data Privacy Ordinance (PDPO)
The PDPO is the law governing the processing of personal data in Hong Kong. The PDPO will govern the collection, use or other processing of personal data on social media. This includes, social media platforms obligation to notify individuals of matters in relation to the processing of their personal data, such as whether it is obligatory or voluntary for the individuals to supply the personal data to be collected, the consequences of failure to supply the personal data if it is obligatory to supply it, the purpose for use of personal data, the classes of persons to whom the data may be transferred, individuals’ rights to access or correct their personal data, and the contact details of the person who will handle the requests to exercise such rights. These are usually disclosed to individuals through a privacy policy. Separately, social media platforms will need to obtain consent from individuals for their use of personal data for direct marketing purposes. The PDPO also contains provisions relating to “doxxing”, which is the publishing of private or personal data on the internet with the intention of causing harm or distress.
Office of the Privacy Commissioner for Personal Data (PCPD)
The PCPD has become a priority area for the PCPD since October 2021 when the anti-doxxing regime came into effect (specifically see section 64(3A) of the PDPO). Since the implementation of the anti-doxxing regime in October 2021 to the end of October 2023, the PCPD, among other things, initiated 228 criminal investigations and issued over 1,800 cessation notices to 41 online platforms, requesting the removal of nearly 27,000 doxxing messages. The compliance rate on the removal of doxxing messages was over 95%. Other than individual doxxing messages, over 180 doxxing channels were successfully removed. Source: Legislative Council Meetings
“Guidance on Protecting Personal Data Privacy in the Use of Social Media and Instant Messaging Apps” (Guideline).
These Guidelines have been issued by the Office of the Privacy Commissioner for Personal Data (PCPD) to illustrate the PCPD’s concerns over the risks involved for social media users in relation to personal data privacy. The Guideline lists data protection risks, such as:
- Loss of privacy
- Misuse of personal data
- Fake accounts and identities
And it provides practical advice to social media users to mitigate these risks. In addition, the Guideline provides a detailed step-by-step guide to direct social media readers to change their privacy settings on various social media platforms such as Facebook, Instagram and X.
Legislative developments on the horizon
Social media specific laws
There are no social media-specific laws and regulations in Hong Kong. However, certain enforcement activities by the Hong Kong Government may impact this area in the future.
Hong Kong National Security Law
From the NSL perspective, while the NSL is live, there has been limited enforcement or use of some of the powers that the NSL gives to Hong Kong law enforcement agencies, such as the ability to remove online content or obtain user data without a judicial warrant. To date, the law enforcement agencies have only requested that users of social media accounts remove the information in violation of the NSL, and we are not aware of any request to social media platforms for removal of content or obtaining user data, but we anticipate this will change, meaning social media platforms will begin receiving such requests directly, rather than users being asked to make changes.
Potential changes or updates to the PDPO
The PCPD is working closely with the Hong Kong Government to conduct a review of the PDPO with the intention of proposing significant amendments to the PDPO. These amendments include establishing a mandatory mechanism for data breach notification (there is currently only non-binding best practice guidance on this in Hong Kong), requiring formulation of a data retention policy, empowering the PCPD to impose administrative fines and introducing direct regulation of data processors and clarifying the definition personal data. As social media platforms collect and process significant amounts of personal data, these amendments will have an impact on them, potentially increasing compliance costs and imposing more stringent requirements.
Consultation for the Safeguarding National Security Ordinance
On January 30, 2024, the Security Bureau commenced the public consultation on the legislative proposals for enacting local legislation to safeguard national security under Article 23 of the Basic Law. The proposed law covers five major types of acts and activities endangering national security including: treason and related acts; insurrection, incitement to mutiny and disaffection, and acts with seditious intention; theft of state secrets and espionage; sabotage endangering national security and related activities; and external interference and organizations engaging in activities endangering national security. The consultation also proposed to provide proportionate extra-territorial effect for some of the abovementioned offences. The public consultation will end on February 28, 2024.
Source: The Government of the Hong Kong Special Administrative Region of the People's Republic of China
Contributors
Rhys McWhirter
Head of Technology (Asia), Hong Kong
E: rhysmcwhirter@eversheds-sutherland.com T: +852 2186 4969
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