The Hong Kong Competition Commission (the “Commission”) generally conducts investigations in private to protect the legitimate interests of the parties involved, notably by preventing competitors from receiving access to competitively sensitive information. Confidentiality also supports the Commission’s ability to compel and obtain necessary information from companies that it investigates. The Commission will therefore not disclose confidential information except where appropriate, as explained below.
Similarly, to avoid impeding the investigation, the Commission will typically ask the complainant to keep its complaint confidential and will also keep the identity of the complainant confidential.
Protection of Confidential Information
The Commission has a general obligation to preserve the confidentiality of any confidential information it obtains during the performance of its functions.
Confidential information under the Competition Ordinance (the “Ordinance”) refers to:
- Information pertaining to the private affairs or commercial activities of any person that are of confidential nature;
- The identity of any person who has given information to the Commission; and
- Information specifically identified as confidential when provided to the Commission or, more generally, given on terms or circumstances that require confidentiality.
The Commission may, however, disclose confidential information when disclosure is required for the Commission to perform its duties. For instance, during the initial assessment stage before an investigation begins, the Commission may need to disclose confidential information to other persons to the extent that is necessary for them to seek clarification on existing evidence. Disclosures may also be made when required by law or instructed by the court or between competition authorities when an investigation involves several jurisdictions.
Such disclosures can all be made without the consent of the relevant parties.
How to Claim Confidentiality?
It is recommended that you identify clearly any information you deem confidential by setting out in writing the reasons why the information should be treated as confidential by the Commission. Where a document contains both non-confidential and confidential information, it is important to identify within the document which parts of it are confidential.
Who Else is Bound to Confidentiality?
Any person who has received confidential information from the Commission must not disclose that information to any other person. Failure to do so is an offence under the Ordinance.
However, such obligation does not apply when the information has already been made public or where disclosures have been consented by the Commission. Likewise, disclosure can be made to legal advisers for the purpose of obtaining professional advice, or in connection with any judicial proceedings or court orders.
Confidentiality within the Context of Leniency Applications
Within the context of leniency applications, the leniency applicant is required to keep confidential its application and all aspects of the leniency process.
The leniency applicant will be asked to enter into a non-disclosure agreement with the Commission, and will cease to be eligible for leniency in the event of any breach. The confidentiality and non-disclosure commitment is on-going throughout the investigation.
The Commission will not release any confidential information provided to the Commission by the leniency applicant unless it is compelled to make a disclosure under the law or by a court order. A third party could therefore request disclosure of leniency materials as part of follow-on actions brought before the Competition Tribunal, notwithstanding the confidential handling of leniency applications.
The Commission may also entertain disclosure requests where it has obtained the consent of the leniency applicant, or if such information is already disclosed to the public.
Transfer of personal data to the Commission may be requested in the context of complaints, enquiries, investigations, applications, market studies or submissions. The Commission has indicated on its website that it intends to comply with the Personal Data (Privacy) Ordinance and undertakes that personal data made available to it will be kept confidential. Legal advice should, however, be sought before providing any such data to the Commission in order to ensure compliance with your obligations in this regard.