When does private no longer mean private? Implications of a challenge to the SFC’s accessing of digital devices in an investigation

• Hong Kong

• Financial services disputes and investigations
• Privacy, data protection and cybersecurity
• Regulatory investigations and enforcement

01-04-2020

The Hong Kong Court has recently confirmed the Securities and Futures Commission (“SFC”)’s powers to seize, search and compel access to digital devices rejecting challenges to such powers based on privacy grounds.

Data privacy is a matter of increasing concern to everyone. We are living in a digital world where people are using digital devices such as their mobile phones to store, or as the means of access to, increasing amounts of data. Unsurprisingly, regulators are keen to secure and access such devices in their investigations. However, that means regulators may also be accessing irrelevant personal data available on those devices and hence an individual’s right to privacy may be compromised.

Recently, there have been a number of cases before the Hong Kong Court which sought to challenge enforcement authorities’ investigative powers to search digital devices based on privacy concerns.

This e-briefing considers implications of one such recent judicial review challenge against the SFC which has been the subject of press coverage in various local media outlets. The case raised questions about the Hong Kong Court’s likely approach to a person’s right to privacy in the context of a regulatory investigation and, as a consequence, the onus an employer, for example, may be under to protect an employee’s private data from disclosure to a regulator in an investigation.

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