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New China News Agency face Privacy Case
Emily Lau Wai-hing, member of political group Frontier, has brought a private prosecution against New China News Agency(NCNA) director Jiang Enzhuover an alleged breach of data privacy laws in which the agency failed torespond to her request to see any files it held on her within 40 days. Themove followed a refusal by the Secretary for Justice to take the matter tocourt.
Ms. Lau, then-legislator and one of the prime movers behind the law, filed a request to NCNA, the de-faco China embassy in Hong Kong before the handover of sovereignty, to view her personal files on Decmber20, 1996, theday the ordinance came into force.
One of the factors of creating the Personal Data (Privacy) Ordinace is to prevent the building of huge personal files and blacklists.
NCNA is said to have breached the Personal Data (Privacy) Ordinace when it did not meet the 40-day deadline to answer Ms. Lau's request to view her personal files. The agency should have answered the request by January 29last year, but did not reply until October 25. The agency sent a one-linereply to Ms. Lau advising it helds no file on her.
Last April Ms. Lau asked the office of the Privacy Commissioner toinvestigate the case. The commissioner believed the agency had broken the law and passed the case to the Department of Justice for possible prosecutionin February. In the absence of evidence that the agency had held a file on Ms.Lau, the commissioner has not used his powers to enter NCNA's premises andcheck for himself that the agency's claim was true.
On February 28, 1998 the Secretary for Justice said it had been decided notto prosecute NCNA. Just a few days before on February 25, she introduced the Adaptation of Laws (Interpretative Provisions) Bill to the provisionallegislature. Under the new law, central authorities of the PRC or theirsubordinate organs may be exempt from certain laws. It would mean that NCNAwould be exempt from the Privacy Ordinance and at least 13 other laws.
Ms. Lau applied for a private summons against the agency as soon as EasternCourt magistrate Garry Tallentire on April 30 granted her the right to do so.
When being asked whether he would appear before the court, Mr. Jiang said NCNA is a working organ authorized by the Central People's Government. This raised fears that certain mainland bodies would see themselves as abovethe law.
Mr. Jiang launched a High Court action to block the private prosecutionbrought against him on May 20. He claimed the decision to take him to courtover an alleged breach of data privacy laws was "frivolous, vexatious andan abuse of the process of the court". He argues the magistrate whoallowed the prosecution to proceed had been deprived of vital information and that the summons obtained by Ms. Lau is "in breach of natural justice". Mr. Jiang said the summons was issued too late and it was wrong to targethim because at the material time, he was the ambassador of the People's Republic of China to the United Kingdom, not with NCNA.
On May 26, Mr. Justice Frank Stock ordered that the proceedings be halted until after full consideration has been given to a bid by Mr. Jiang to havethe case thrown out. The judge gave Mr. Jaing permission to proceed with thechallenge at the Court of First Instance.
June 1998