Competition Ordinance/Part 8

Layout 2

PART 8
Disclosure of Information

122. Interpretation

In this Part—

“employee” (僱員) means a person engaged for the provision of services, whether under a contract of employment or otherwise;

“specified person” (指明人士) means—

(a) the Commission;

(b) any person who is or was a member, employee or agent of the Commission;

(c) any person who is or was a member of a committee of the Commission, established under section 28 of Schedule 5;

(d) the Communications Authority;

(e) any person who is or was a member of the Communications Authority;

(f) any person who is or was a member of a committee of the Communications Authority, appointed under section 17 of the Communications Authority Ordinance (Cap. 616);

(g) any person who is or was a public officer serving in the Office of the Communications Authority;

(h) any person who is or was an employee or agent of the Office of the Communications Authority; or

(i) any person appointed to assist any person referred to in paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) in the exercise of the powers of the Commission under Part 3.

123. Confidential information

(1) In this Part—

“confidential information” (機密資料) means—

(a) information that has been provided to or obtained by the Commission in the course of, or in connection with, the performance of its functions under this Ordinance, that relates to—

(i) the private affairs of a natural person;

(ii) the commercial activities of any person that are of a confidential nature; or

(iii) the identity of any person who has given information to the Commission;

(b) information that has been given to the Commission on terms that or in circumstances that require it to be held in confidence; or

(c) information given to the Commission that has been identified as confidential information in accordance with subsection (2).

(2) If a person—

(a) identifies information that the person has given to the Commission as confidential; and

(b) provides a statement in writing setting out the reasons why, in that person’s opinion, the information is confidential,

the information is also to be regarded as confidential information under this Part.

124. Duty to establish and maintain safeguards

(1) The Commission and the Communications Authority must establish and maintain adequate procedural safeguards to prevent the unauthorized disclosure of confidential information.

(2) In this section—

“unauthorized disclosure” (在未經授權下披露) means disclosure that is either prohibited or not authorized by or under this Ordinance.

125. Preservation of confidentiality

(1) A specified person—

(a) must preserve and aid in preserving the confidentiality of any confidential information;

(b) must not disclose confidential information to any other person; and

(c) must not suffer or permit any other person to have access to confidential information.

(2) Subsection (1) does not apply to the disclosure of confidential information with lawful authority within the meaning of section 126.

(3) A specified person who contravenes subsection (1) commits an offence and is liable—

(a) on conviction on indictment, to a fine of $1,000,000 and to imprisonment for 2 years; or

(b) on summary conviction, to a fine at level 6 and to imprisonment for 6 months.

(4) It is a defence for a person charged with an offence under this section to show that at the time of the alleged offence the defendant—

(a) believed that there was lawful authority for the disclosure of the information concerned and the defendant had no reasonable cause to believe otherwise; or

(b) did not know and had no reasonable cause to believe that the information disclosed was confidential information.

126. Disclosure with lawful authority

(1) Disclosure of confidential information is to be regarded as made with lawful authority if the disclosure is made—

(a) subject to section 127, with the required consent, as specified in subsection (2);

(b) subject to subsection (3), in the performance of any function of the Commission or in carrying into effect or doing anything authorized by this Ordinance;

(c) in accordance with an order of the Tribunal or any other court or in accordance with a law or a requirement made by or under a law;

(d) in connection with judicial proceedings arising under this Ordinance;

(e) for the purpose of obtaining advice from counsel, a solicitor or other professional adviser acting or proposing to act in a professional capacity in connection with any matter arising under this Ordinance;

(f) with a view to the bringing of, or otherwise for the purposes of, any criminal proceedings, or any investigation carried out under the laws of Hong Kong, in Hong Kong;

(g) with respect to information that has already been lawfully disclosed to the public on an earlier occasion; or

(h) by one competition authority to another.

(2) The consent required for the purposes of subsection (1)(a) is—

(a) if the information was obtained from a person who had the information lawfully and the Commission knows the identity of that person, the consent of that person;

(b) if the information relates to the affairs of a natural person, the consent of that person;

(c) if the information relates to the activities of an undertaking, the consent of that undertaking, and that consent may be given—

(i) if the undertaking is a company, by a director or company secretary of the company;

(ii) if the undertaking is a partnership, by a partner; or

(iii) if the undertaking is an unincorporated body (other than a partnership), by a person concerned in the management or control of the body.

(3) In deciding whether or not to disclose confidential information, where disclosure is lawful under subsection (1)(b), the specified person must consider and have regard to—

(a) the need to exclude as far as is practical, from such disclosure—

(i) information the disclosure of which would, in the opinion of the specified person, be contrary to public interest;

(ii) commercial information the disclosure of which would or might be likely to, in the opinion of the specified person, significantly harm the legitimate business interests of the person to whom it relates; and

(iii) information relating to the private affairs of a natural person, the disclosure of which might (in the opinion of the specified person) significantly harm the interest of that person; and

(b) the extent to which the disclosure is necessary for the purpose sought to be achieved by the disclosure.

127. Notice of proposed disclosure

(1) If the disclosure of confidential information is lawful by virtue of section 126(1)(a), a specified person must, before disclosing any such information—

(a) give notice of the proposed disclosure to—

(i) the person who provided the information to the Commission; and

(ii) any person who is, in the opinion of the specified person, likely to be affected by the disclosure; and

(b) consider any representations that are made about the proposed disclosure.

(2) A notice under subsection (1) must—

(a) give a description of the information (having due regard to the requirements of confidentiality) that the specified person proposes to disclose;

(b) state the reasons why the disclosure is proposed;

(c) identify the person to whom it is proposed to disclose the information; and

(d) state any other facts that the specified person considers relevant to the question of the proposed disclosure.

(3) A notice under this section must specify the period within which representations may be made about the proposed disclosure.

(4) The period specified for the purpose of subsection (3) must be a period of at least 30 days beginning after the day on which the notice is given.

128. Obligation of third party not to disclose confidential information

(1) A person, other than a specified person, who—

(a) has received confidential information from the Commission; or

(b) has otherwise, directly or indirectly, received such information from a specified person,

must not disclose that information to any other person or suffer or permit any other person to have access to that information.

(2) Subsection (1) does not apply to the disclosure of information where—

(a) the Commission has consented to the disclosure;

(b) the information has already been lawfully disclosed to the public on an earlier occasion;

(c) the disclosure is for the purpose of obtaining advice from counsel, a solicitor or other professional adviser, acting or proposing to act in a professional capacity in connection with any matter arising under this Ordinance;

(d) the disclosure is made in connection with any judicial proceedings arising under this Ordinance; or

(e) the disclosure is made in accordance with an order of the Tribunal or any other court or in accordance with a law or a requirement made by or under a law.

(3) A person who contravenes subsection (1) commits an offence and is liable—

(a) on conviction on indictment, to a fine of $1,000,000 and to imprisonment for 2 years; or

(b) on summary conviction, to a fine at level 6 and to imprisonment for 6 months.