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Hong Kong court upholds real-name registration requirement for SIM cards users – JURIST

The Hong Kong Court of First Instance dismissed an application for judicial review on Friday to challenge the real-name registration regime for SIM card users. The court held that the regime is not “unreasonable” and warrants no interference from the court.The Telecommunications (Registration of SIM Cards) Regulation requires licensed telecommunications companies to record their customers’ identity card numbers, full name in English and date of birth before they activate a SIM card. Section 7 of the regulation dictates that a person can only hold 10 pre-paid SIM cards for themselves and 25 pre-paid SIM cards on behalf of registered businesses. The regulation has been in effect since March 2022.Justifying the necessity of the real-name registration regime, the government stated that the anonymous nature of pre-paid SIM cards increases the difficulty for law enforcement agencies in tracing and identifying suspects. The government claimed that pre-paid SIM cards, therefore, facilitate illegal activities, such as telephone deception and e-shopping scams. The government also claimed that anonymous pre-paid SIM cards were deployed in planning and committing serious, organized crimes such as human smuggling, homemade bomb making and terrorist activities.The applicant argued that the government did not strike the right balance between the rights to privacy and anonymity of mobile device users and the prevention, detection and investigation of crimes. The applicant highlighted that the loss of anonymity may hinder and deter the reporting and prevention of crimes. Lastly, the applicant emphasized the risk of personal data breaches and, therefore, the impediment to the right to privacy posed by the regime.Judge Coleman concluded that the government had already considered these factors before the implementation. Judge Coleman ruled that, ultimately, enacting regulations involves a balancing exercise that is best left to the legislature. The court only intervenes in a government’s decision when the exercise has been conducted in a way that is obviously “unreasonable.”The court used the legal standard of “Wednesbury unreasonableness,” which is a legal standard developed by the court to scrutinize decisions made by public bodies. The court assesses the relevance of factors considered by the public body in the decision-making process. If the court finds that no reasonable person could have made the decision, the court will find it “Wednesbury unreasonable” and nullify the act.A subscriber identification module (SIM) card allows subscribers to use their mobile devices to receive calls and connect to mobile internet services. It also identifies and authenticates a subscriber for the subscriber’s access to a telecommunications service.