19 July 2004
The Office of the Telecommunications Authority (OFTA) issued a consultation paper on 25 June 2004 to invite public views on measures to combat unsolicited electronic messages (commonly referred to as "junk messages") including in the form of emails (SPAM), facsimiles, voice mails, short messaging services (SMS) and multi-media messaging services (MMS).
This legal update gives a comprehensive summary of the contents of the consultation paper, which includes a list of existing legislation and Codes of Practice in Hong Kong that may be applicable to tackle the problem of unsolicited electronic messages.
A consultation paper entitled "Proposals to Contain the Problem of Unsolicited Electronic Messages" was issued by the Office of the Telecommunications Authority (OFTA) on 25 June 2004. The consultation paper discusses the problem of unsolicited electronic messages in general, including in the form of emails (SPAM), facsimiles, voice mails, short messaging services (SMS) and multi-media messaging services (MMS), the effectiveness of current measures adopted in Hong Kong, and a range of possible measures to combat the problem with reference to the approach or measures adopted in other jurisdictions, such as in Australia where the "Spam Act 2003" was enacted, and in the United States where the "CAN-SPAM Act 2003" was enacted.
"Unsolicited electronic messages" refer to messages the receipt of which has not been consented to. It is debatable whether the sending of messages should be permission-based, i.e. whether the sender shall obtain the prior consent of the recipient before sending the message. Whilst unsolicited messages cause great nuisance to some recipients, Internet service providers (ISPs) and mobile service providers etc, the Hong Kong Government is mindful that the introduction of additional regulations on unsolicited electronic messages may lead to compliance costs on businesses engaging in direct marketing, and hamper the effectiveness and efficiency of communications by telecommunications networks. Other issues such as the fact that a considerable amount of unsolicited messages contain illicit contents, lost worker productivity and wastage of resources in dealing with unsolicited messages, costs and effectiveness of enforcement of any additional regulations, principles of freedom of speech, and privacy issues etc, shall also be considered, and a proper balance needs to be struck.
Currently in Hong Kong, there is no legislation which specifically deals with the act of sending out unsolicited electronic messages per se. Relevant provisions under the existing legal framework which may be applicable to tackle the problem include:
- Section 27A of the Telecommunications Ordinance (Cap.106) - which prohibits unauthorized access to computer by telecommunications (commonly known as "hacking");
- Sections 59 and 60 of the Crimes Ordinance (Cap.200) - which prohibits destroying or damaging property, including by misusing a computer;
- Section 161 of the Crimes Ordinance (Cap.200) - which prohibits access to computers with criminal or dishonest intent;
- Section 20 of the Summary Offences Ordinance (Cap.228) - which deals with offences in connection with nuisance telephone calls or messages or telegrams (this provision is not intended to cover facsimiles, emails or other means of electronic communications);
- Control of Obscene and Indecent Articles Ordinance (Cap.390) - which prohibits the publication and public display of obscene and indecent articles (including electronic publications);
- Section 34 of the Personal Data (Privacy) Ordinance (Cap.486) - which regulates the use of personal data for direct marketing, so that a data user is required at the first time he uses the collected personal data of a data subject for direct marketing purposes, where marketing information/goods are addressed to the a specific person or specific persons by name, inform the data subject that he is required, without charge to the data subject, to cease to use that data if the data subject so requests. (This provision is not designed to deal with unsolicited electronic messages which seldom address the recipients by names);
- Prevention of Child Pornography Ordinance (Cap.579) - which prohibits the publication of child pornography.
In addition, there are currently a number of voluntary codes of practice issued in dealing with the problem:
- "Anti-Spam Code of Practice" issued by the Hong Kong Internet Service Providers Association (HKISPA) (concerning emails);
- "Handling of Unsolicited Promotional IOSMS under the Code of Practice for Inter-Operator Short Message Service (IOSMS)" issued by six mobile operators in Hong Kong (concerning SMS);
- Code of Practice on "Procedures for Handling Complaints against Senders of Unsolicited Fax Advertisements" to be followed by local Fixed Telecommunication Network Services (FTNS) operators (concerning facsimiles).
The consultation paper discusses various possible ways to contain the problem including technical solutions, user education, enactment of anti-spam legislation and co-operation with industry and international bodies. The government invites views and comments from the public on the consultation paper on or before 25 October 2004.
A copy of the consultation paper can be downloaded from the OFTA website at http://www.ofta.gov.hk/
New Legislation On Unsolicited Electronic Messages (31 May 2007)For further information, please contact:
Name: Rosita Y.M. Li
Phone: +852 2843 4287
Fax: +852 2103 5174
Name: Amy L.E. Lee
Phone: +852 2843 2306
Fax: +852 2103 5083