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APAC Perspectives on Data Privacy Laws: A Globalaw Roundtable Discussion Recap

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On 25 April 2025, at the Globalaw Asia Pacific Regional Meeting in Osaka, Japan, our Partner and Head of Tax and Private Client, Anna Chan, joined Uday Singh Ahlawat of Ahlawat & Associates (India), Han Sung Kang of DLG Law Corporation (South Korea), Ariel Hung of Stellex Law Firm (Taiwan) and Yusaku Akasaki of Chuo Sogo LPC (Japan) for an insightful roundtable discussion on the evolving landscape of data privacy laws across key APAC jurisdictions.

Globalaw Asia Pacific Roundtable on Data Protection
Globalaw Asia Pacific Roundtable on Data Protection

The recent decade has seen an increase of phishing attacks and data breaches. With the introduction of the new cybersecurity law in Hong Kong which will come into effect next year, there is heightened concerns over data security and rights of data subjects. The roundtable discussion therefore offered a timely forum to visit topics such as obtaining consent from data subjects, protecting the rights of data subjects and data breaches reporting practices, as well as on recent legislative developments in in Hong Kong, India, Japan, South Korea, and Taiwan. This article summarises each of the participants’ inputs in the roundtable discussion, each speaking from their respective jurisdictions, on these topics.

Obtaining consent from data subjects
  • In Hong Kong, a data user must expressly inform the data subject the purpose for which the data is to be used on or before collection of the data. Provision of personal data pursuant to such information by the data subject shall be deemed sufficient consent which is implied. However, new consent from the data subject is required if such personal data shall be used for a new purpose. So far as cross-border transfer is concerned, the Personal Data (Privacy) Ordinance (“PDPO”) provides, among others, that data subject should also consent in writing specifically but this requirement has not come into effect yet.
  • In India, when seeking consent from data principals, it is crucial to sufficiently disclose that their personal information will be transferred to another entity. The details of such third-party entity (to which the data will be transferred) as well as the purpose of such transfer also needs to be disclosed. In the case of cross-border transfer of personal information, the manner of seeking consent from data principals remains the same.
  • In Japan, business operators must clearly outline the purpose of data collection and obtain specific consent for the cross-border transfer of personal information with certain exceptions.
  • In South Korea, informed and voluntary consent is essential for collecting and using personal data, unless a legal exception applies. Also, consent for collection, third-party provision, and cross-border transfers must be clearly distinguished and obtained separately.
  • In Taiwan, organizations must expressly inform data subjects when collecting personal data, detailing the collection purposes, data types, usage scope (duration, geography, territory, and methods), data subject rights, and consequences of non-disclosure, unless exempt by law. When collection involves planning for cross-border transfers, intended overseas jurisdictions should also be specified.

Is there a “right to be forgotten”?
  • In Hong Kong, while there is no express “right to be forgotten”, under the PDPO, data users must ensure personal data is retained only as long as necessary, and generally must take practicable steps to erase the personal data held by them where it is no longer required unless the statutory exemptions apply.
  • In India, there is no clear statutory provision for the “right to be forgotten” but the Indian courts have recognized the “right to be forgotten” in some judicial pronouncements. The Indian judiciary has also attempted to clarify the distinction between “right to be forgotten” and the “right to erasure” in their judicial pronouncements. Further, the forthcoming Digital Personal Data Protection Act (“DPDPA”) will provide for a statutory “right to erasure” (unless the statutory exemptions apply).
  • In Japan, while there is no express “right to be forgotten”, the Act on the Protection of Personal Information (“APPI”) recognises the right of data subjects to correct, add, or delete their personal data only on the ground that the retained personal data is contrary to the fact.
  • In South Korea, data subjects have the rights to access, correct, delete, and suspend the processing of their data, as well as to withdraw consent. While there is no express “right to be forgotten”, it is being increasingly recognised in practice as a separate right from the general deletion right. In common practice, business operators in South Korea often establish a defined retention period and periodically re-request consent.
  • In Taiwan, while there is no explicit “right to be forgotten”, similar protections exist under the Personal Data Protection Act (“PDPA”) through various data subject rights, including rights to access, correct, delete data and demand cessation of data processing and use. In practice, certain Taiwan courts have interpreted constitutional principles of informational self-determination and privacy to support this right, balancing individual rights against public interest when assessing removal requests, thus adapting to emerging digital privacy challenges.

Data breaches reporting practices
  • In Hong Kong, business operators are encouraged to voluntarily report data breaches in accordance with the best practices published by the Office of the Privacy Commissioner for Personal Data. For now, there are no specific criminal penalties for data breaches while civil liabilities may arise from breaches of contract, confidentiality, and negligence. That said, the newly enacted Protection of Critical Infrastructures (Computer Systems) Ordinance, expecting to take effect on 1 January 2026, will require the operators of crucial infrastructures in Hong Kong in the eight industries including energy, information technology, banking and financial services, transportation, telecommunications and broadcasting services and healthcare services to, among others, implement security plans and protocols, and report on security incidents. Failure to comply will result in fines ranging from HK$500,000 to HK$5 million.
  • In India, the forthcoming DPDPA prescribes that data breaches shall be reported to both the Data Protection Board of India and the data principal without delay. Failure on the part of data fiduciaries in providing such a notice could result in severe criminal penalties (as prescribed under the DPDPA).
  • In Japan, in the event of serious data security breaches, business operators are required to notify both the Personal Information Protection Commission (“JPIPC”) and data subjects. The APPI imposes criminal penalties for various improper handling of personal data as well as failure to comply with the JPIPC rectification requests and orders.
  • In South Korea, in the event of any leak involving sensitive personal data, business operators should notify the Korean Personal Information Protection Commission and data subjects within 24 hours of identifying such leak. Criminal penalties are imposed for intentional or severe negligence (e.g. illegal data sales or leaks), alongside with administrative fines, corrective orders, potential suspension of processing and public disclosure.
  • In Taiwan, the PDPA currently mandates that organisations are required to notify affected individuals of data breaches only after the relevant facts have been clarified. Criminal penalties apply for intentional misconduct, with a tiered system of administrative fines for other non-compliance. Notably, proposed amendments to the PDPA announced in March 2025 include heightened reporting requirements, and business operators should monitor these upcoming developments closely.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

How to Settle Civil Disputes: Importance of Tomlin Order

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Something must have gone wrong before parties commence civil litigation, whether the problem arises from breach of contract, unpaid invoices, or differing interpretations of terms of the contract. As civil litigation is costly, time-consuming, unpredictable, and at times excruciating for the parties’ peace of mind, it is not uncommon for parties to compromise and settle the civil dispute midway in the litigation proceedings. 

After years of advising and settling civil disputes, this series hope to shed light on the dos and don’ts for parties when they enter into settlement negotiations, and when they eventually sign and execute the settlement agreement. 

An important piece of consideration is to consider settling the civil action in Hong Kong by way of Tomlin Order. 

The nature of Tomlin Order 

In Hong Kong, Tomlin Orders are governed by the Rules of the High Court (Cap. 4A) and the Rules of the District Court (Cap. 336H). 

Provided under O.42 r.5A(2)(b)(iii) of the Rules of the High Court (Cap. 4A) and O.42 r.5A(2)(b)(iii) of the Rules of the District Court (Cap. 336H), Tomlin Order is a form of consent order which allows the parties to stay the proceedings upon the mutually agreed settlement terms which are scheduled to the Order but the terms of which do not otherwise form of the Order itself. 

Accordingly, Tomlin Order enables the parties to stay the proceedings, preserving the option to return to Court to enforce the settlement terms if one party fails to comply. This avoids the need for new legal action, making it an attractive option for settling a civil dispute. 

Further, the schedule, being a separate contractual agreement, can include terms that go beyond the ordinary terms typically ordered by the Court, and even go beyond the scope of the original dispute in the proceedings. 

In the Hong Kong case Shum Ho Seung v. Shum Foo Hang (As the Administrator of the Estate of Shum Kwok Hang, Deceased (18/12/2017, HCMP 3134/2016) [2018] 1 HKLRD 434, the Court clarified that it lacks general power to vary the terms in the schedule unless specific provisions for variation are included in the Order itself, or contractual law justifies it. In practice, the standard wording of a Tomlin Order in Hong Kong may include phrases like “all further proceedings be stayed except for the purpose of carrying into effect the terms of settlement,” with liberty to apply for enforcement. 

Here are the key benefits of settling a case via a Tomlin Order in Hong Kong: 

1. Enforceability without separate legal action 

If one party breaches the settlement terms in the schedule, the other can apply to the court to enforce the terms scheduled to the Tomlin Order directly, without starting a new legal action. 
 
For example, if a Defendant fails to pay an agreed sum as provided under the schedule to the Tomlin Order, the Plaintiff can seek enforcement by applying to a Judge/Master as appropriate. 
 
This is a way a more efficient and costs-saving route than settling the civil dispute by way of a separate settlement agreement, whereby generally, if a party breaches the terms of the settlement agreement, the other party will have to bring a fresh claim.

2. Flexibility in Settlement Terms 

The schedule can include terms which go beyond what the Court would typically impose in a judgment, e.g. ceasing certain actions not directly related to the original proceedings. In contrast, the terms which parties could enter by way of Consent Judgment (without Court’s leave) would be more limited under the straight statutory rules.
 
3. Preservation of Finality with Flexibility 

The stay of proceedings means the case is “paused”, but not dismissed. If the terms are fulfilled, the dispute ends without a full trial. On the other hand, if the settlement terms are breached, the innocent party can either enforce the scheduled terms or, in some cases, lift the stay to resume litigation (depending on how the Order is drafted). This balances closure with a safety net as opposed to a full withdrawal/dismissal, which may leave a party vulnerable if the other reneges. 

Conclusion 

The Tomlin Order must be carefully drafted to ensure enforceability and to prevent any pitfall compromising a party’s rights and interest. In summary, a Tomlin Order in civil litigation offers enforceability without separate legal action, flexibility, and preservation of finality with flexibility, making it ideal for parties seeking a practical binding settlement. For specific advice, as each case depends on its own facts, please consult a solicitor. 

Should you have any enquiries regarding civil litigation and commercial agreements, please contact our firm. 

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

How to Settle Civil Dispute: Importance of Payment by Instalment Clause

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Something must have gone wrong before parties commence civil litigation, whether the problem arises from breach of contract, unpaid invoices, or differing interpretations of terms of the contract. As civil litigation is costly, time-consuming, unpredictable, and at times excruciating for the parties’ peace of mind, it is not uncommon for parties to compromise and settle the civil dispute midway in the litigation proceedings.

After years of advising and settling civil disputes, this series hope to shed light on the dos and don’ts for parties when they enter into settlement negotiations, and when they eventually sign and execute the settlement agreement.

An important consideration is to consider having payment of settlement sum by instalments. In our experiences, this option has proven to be a game-changer, enabling parties to reach amicable resolutions more effectively. The practical benefits of having payment by instalment clauses in your settlement agreement are listed below:-

1. Alleviating Financial Flexibility for the Paying Party

When a party is required to pay a large settlement amount upfront, it can strain its cash flow, potentially forcing them to reject the settlement entirely.

By having payment by installment clauses in the agreement, the paying party gains room to better manage its finances. This flexibility can make the difference between a stalled negotiation and a signed deal, as it allows the debtor to commit to a resolution without jeopardizing their operational stability.

For instance, a small business facing a HK$1,200,000 settlement sum might struggle to pay it all at once. Spreading that amount over 12 monthly installments of HK$100,000, however, transforms an overwhelming burden into a manageable expense. This practicality often encourages parties to agree rather than prolong the dispute through litigation.

2. Ensuring enforceability of the Settlement Agreement

In cases involving a one-off payment, the settlement agreement carries a heightened risk of being contested down the line, as the paying party may later claim they were misled, poorly advised, or coerced into accepting the terms under economic duress—arguments that could potentially unravel the deal in court. A lump-sum payment, often made under pressure to resolve a dispute quickly, can leave the payor feeling cornered, especially if their financial situation deteriorates shortly after, prompting them to challenge the agreement’s validity by asserting they had no real choice but to comply at the time.

In contrast, a payment-by-instalment clause significantly mitigates this risk by spreading the financial obligation across multiple, manageable payments over an extended period, creating a built-in mechanism that strengthens the agreement’s practicality.

As long as the paying party adheres to some of the instalment schedule (i.e. making certain payment instalments), it is arguable that it effectively elects to affirm to the terms. This repeated compliance undermines any later attempt to overturn the agreement, as it creates a hurdle for the payor to convincingly argue misrepresentation or economic duress when their actions over months or years have indicated voluntary commitment.

By reducing the immediacy of the financial burden and providing a track record of commitment, such clause discourages post hoc legal challenges, offering both parties greater certainty in the resolution process.

3. Building Trust between Parties

Incorporating instalment payments into a settlement agreement can help build trust between parties. The paying party’s commitment to making regular payments reflects reliability and good faith, while the receiving party can appreciate the structured approach to fulfilling the agreement. The continued fulfillment of payment instalments can serve as a positive spiral for both parties to develop trust and positive interactions moving forward.

4. Preserving Business Relationships

Many business disputes occur between parties with ongoing or potential future dealings—suppliers and clients, partners, or vendors. A lump-sum demand can sour these relationships irreparably, whereas an installment plan demonstrates mutual accommodation. By agreeing to terms that work for both sides, the parties signal a willingness to maintain civility and cooperation, which can pave the way for future collaboration once the dispute is resolved.

Conclusion

Incorporating payment by installment into settlement agreements is more than a financial workaround—it’s a strategic tool that bridges gaps, builds trust, and expedites resolutions. For the paying party, it offers a lifeline to meet obligations without crippling their operations. For the receiving party, it ensures compensation with manageable risk. This approach transforms disputes from adversarial standoffs into opportunities for mutually agreeable solution.

Should you have any enquiries regarding civil litigation and commercial agreements, please contact our firm.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Recent updates on IP practices in Hong Kong

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1. IPD new forms

The Intellectual Property Department (“IPD”) of Hong Kong has announced that a new set of Trade Marks Forms, Patents Forms and Designs Forms (“the new forms”) will be effective from 16 May 2025.

A key feature of all the new forms is the inclusion of a declaration requiring agents to confirm their local physical presence and residency or their engagement in business activities at the specified address in Hong Kong.

Additionally, the forms include a warning that providing false information or declarations constitutes an offence. The primary purpose of this requirement is to mitigate the risk of missed communications or deadlines if an agent lacks a physical presence in Hong Kong.

Therefore, IP owners should ensure they engage an agent with an actual physical presence in Hong Kong, rather than one that merely maintains a mailing address without conducting business activities.

Another notable feature of some of the new forms—specifically T8, T10, T11, P9, P10, P19, D5, and D11 – is the addition of data fields to capture the type and place of incorporation of IP owners, grantees, licensees/sub-licensees, mortgagees, and other relevant parties. This enhancement is designed to facilitate due diligence processes in relation to IP transactions.

IPD has provided the draft versions of the new forms for information purpose, see https://www.ipd.gov.hk/en/home/whats-new/index_id_628.html.

2. Absolute Grounds for Refusal of Trade Marks

IPD has revised the Chapter on “Absolute Grounds for Refusal of Trade Marks” with the aim to elaborating the Registry’s examination practice primarily focus on Sections 11(4)(a), 11(4)(b) and Section 11(5)(a) of Trade Marks Ordinance, summarize as follows:

Section 11(4)(a) –

marks contrary to accepted principles of morality, if the marks are: –

  • Offensive or vulgar
  • Threatening national security
  • Containing offensive or hateful content
  • Imitating official symbols
  • Containing references to tragedies or disturbing events

Section 11(4)(b) –

marks that are likely to deceive, if they: –

  • contain words “made/made in/imported from” or “exported from” a geographical place but in fact the goods are imported/exported from or made elsewhere; or
  • suggested official approval but without any actual endorsement.

Section 11(5)(a) –

use prohibited in Hong Kong by virtue of any law, if:

  • the use of the trade mark constitutes an offence under the PRC Law on Safeguarding National Security in the HKSAR and/or the Safeguarding National Security Ordinance.

Our firm could assist clients to assess the chance of refusal of the intended trade mark on the above grounds as well as other grounds before filing to avoid potential refusal of the marks.

3. Shortening the time of issuing hearing notice

Previously, IPD often took a year or more to schedule a hearing after the close of pleadings. However, in recent trends, IPD has significantly reduced the time required to issue a hearing notice, often scheduling hearings in less than a year. In some cases, hearing notices are issued within just one or two months.

This improvement is beneficial, as it allows parties involved in proceedings to anticipate a faster resolution of their cases, ensuring a more efficient legal process.

How We Can Help

As a Hong Kong law firm, we can serve as the client’s authorized agent in handling the registration of their IP rights, including the preparation and submission of the necessary IP forms to the IPD.  Additionally, we provide expert assistance in assessing the risk of trade mark refusal based on various legal grounds. By conducting this evaluation before filing, we help minimize the likelihood of rejection and ensure full compliance with applicable laws and regulations.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

超越迷信：在香港無遺囑死亡的真實影響

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在亞洲許多地區，討論死亡和準備遺囑仍然被視為禁忌，有些人甚至認為寫遺囑會帶來厄運或不幸。這種抗拒意味著很多人從未考慮過，當他們在沒有遺囑的情況下去世時，遺產將受到《無遺囑遺產條例》（第73章）和《非爭議性遺囑認證規則》（第10A章）「無遺囑法」的管控，可能無法與個人意願相符。

在處理已故者的遺產之前，必須向法庭申请遺產承辦書。以下人士有權作為申請者（按照優先順序排列）：

1. 配偶

2. 子女

3. 父母

4. 兄弟姊妹

5. 祖父母

6. 叔叔和阿姨

獲授管理遺產授權書的人將成為管理人，負責根據法律處理遺產。管理人必須確定並收集已故者的資產，清償未付的債務和開支，然後根據法律的規定分配遺產。以下是在無遺情况下, 繼承者的優先順序。一般來說，在無遺囑的情況下，法律只允許你的配偶繼承一半，你的孩子繼承另一半。

除了能夠確保您的意願得到遵循之外，立遺囑還有兩個主要原因：

(1) 如果有遺囑，從法院獲得遺產承辦管理書的過程要快得多（快幾個月甚至幾年）。

(2) 避免在您過世後，您的家人或親密伴侶之間發生遺產訴訟。 優秀的遺囑/遺囑承辦律師將能夠計劃一套遺囑及其他文件，以避免那些認為自己曾經得到您經濟支持的人基於與您曾經的密切關係向法院申請分享您的遺產。 香港法律允許享受過您的財務支持的人向法院申請分享您的遺產。

如果您想了解更多關於這方面的保障，請聯絡我們的合夥人，趙君宜律師 （+852 2186 1885 / +852 9169 4356）。

免責聲明: 本文僅供參考。本文中的任何內容均不得詮釋為香港法律建議或向任何人提供的任何與此相關的法律建議。對於任何人因本文所含的內容而造成的任何損失和/或損害，高李嚴律師行不承擔任何責任。

OLN “Legal Eagles” Take on the Peak Race 2025: Running for Freedom

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OLN is proud to announce that our team, the “Legal Eagles”, will participate in the Peak Race 2025 in Hong Kong! Set for Saturday, 22 March 2025, this inspiring race, organised by 24 Hour Race, aims to raise awareness and funds to combat human trafficking and modern-day slavery, while empowering youth and supporting at-risk children in Thailand.

OLN team is lacing up not just to race but to actively support the cause through fundraising efforts. This year, we will directly support The Freedom Story , an organisation dedicated to protecting vulnerable children in Thailand from trafficking and exploitation.

With your generous support, we can help fund initiatives that will create long-term, life-changing impact:

1. Educational scholarships

Keeping vulnerable children in school by covering tuition and school supplies.

2. Financial management training

Empowering families with the skills to manage resources and build financial stability.

3. Youth leadership camps

Equipping young leaders to educate their peers through anti-trafficking outreach programs.

4. Mentorship programs

Providing emotional support and guidance to children facing crisis situations.

Gordon Oldham, our Senior Partner and an avid ultramarathon runner, shared his enthusiasm: “I’m thrilled that OLN is supporting such a great initiative. As both a runner and organiser of numerous Hong Kong trail races, I’ve seen first-hand the immense dedication and effort that goes into making a race happen – especially for a meaningful cause. I’m proud to be part of it this year.”

How You Can Help

We invite you to stand with us in the fight against human trafficking. You can contribute by:

  1. Donating – Every contribution is tax-deductible and, big or small, makes a direct impact on a vulnerable child’s future.
  2. Spreading the word – Share our fundraising page with your friends, family, and colleagues to expand our reach.

If you wish to donate, click here.

OLN’s Commitment to Community

Our participation in the Peak Race 2025 is part of OLN’s broader dedication to corporate citizenship. Beyond the legal world, we dedicate ourselves to our community – whether it’s through providing pro bono legal services to the elderly via our partnerships with Helping Hand, SAGE and other organisations, or participating in environmental sustainability projects.

At OLN, we believe our responsibility extends beyond legal practice. We are committed to making a difference where it is needed most – supporting vulnerable communities and fostering positive change in Hong Kong and beyond.