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Hong Kong – Recruiters could face jail for breaching job advertising regulations

22 July 2014

The number of "blind" recruitment adverts circulating in Hong Kong, those that do not identify the employer or their recruitment agency, has led to growing concern about the possible unscrupulous collection and use of the personal data of job applicants, reports The South China Morning Post.

A recent investigation conducted by the privacy commissioner into 48 blind adverts revealed that all 48 were in breach of Hong Kong's main privacy statute, the Hong Kong Personal Data (Privacy) Ordinance (PDPO).

The PDPO requires that personal data must be collected by means that are fair.

Further, the privacy commissioner's Code of Practice on Human Resource Management specifically states that advertisements for job vacancies and the solicitation of personal data from job applicants must provide a way for the employer, or its agent, to be identified.

The privacy commissioner received numerous enquiries regarding blind job adverts. Potential job applicants have expressed concern that blind adverts could be used to obtain data for fraudulent purposes, for example identity theft and direct marketing, rather than for genuine job vacancies.

The 48 blind adverts that fell foul of the legislation invited applicants to provide personal data, by e-mail or fax, but failed to identify either the employer or their recruitment agency.

The privacy commissioner therefore found that the advertisers were engaging in unfair collection of personal data.

Ignorance, negligence, or a misunderstanding of the law by the advertisers was found by the privacy commissioner to not be a valid defence.

The 48 employers responsible for the blind adverts were all served with enforcement notices requiring them to:

(i) formulate a policy on the use of recruitment advertisements, which should include a prohibition on blind adverts; and

(ii) delete the personal data collected (unless they were required to maintain it under other applicable laws or unless such data were required for ongoing recruitment purposes).

Breach of an enforcement notice is an offence and may result in a fine for the employers of HKD 50,000 (USD 6,450) and two years' imprisonment and, in the case of a continuing offence, to a daily fine of HKD 1,000 (USD 129).