31 May 2007
Following the Government's consultation paper on "Proposals to Contain the Problem of Unsolicited Electronic Messages" (please refer to our Legal Update "OFTA Issues A Consultation Paper On Measures To Combat SPAM (19 Jul 2004)"), the Hong Kong legislature recently passed the Unsolicited Electronic Messages Bill, which will come into operation as the Unsolicited Electronic Messages Ordinance ("Ordinance") on 1 June 2007, with the aim of tackling unsolicited commercial electronic messages in Hong Kong.
This update contains an introduction on the salient features and likely implications of the Ordinance:
1. The Ordinance covers electronic messages sent over a public telecommunications service. These include pre-recorded voice messages sent to telephones, text messages, faxes and emails. Such electronic messages must be sent for a commercial purpose (e.g. advertising, promoting or offering goods, services or business opportunities) and have a "Hong Kong link" (e.g. the message originates in Hong Kong; the relevant telecommunications device is located in Hong Kong; the sender/recipient is an individual or organisation located in Hong Kong).
2. Some categories of electronic messages are exempted from the Ordinance, for example:
- person-to-person telemarketing calls;
- survey or religious messages without any advertising or promotion contents;
- messages sent on request or are transaction-related;
- sound broadcasting or television programme services.
3. The Ordinance will come into operation in two phases:
- Phase I (effective from 1 June 2007) In Phase I, offences covering "address-harvesting and related activities" (Part 3 of the Ordinance) and "fraud and other illicit activities related to the sending of multiple (i.e. more than 100 messages in a day or 1,000 messages in a 30-day period) commercial electronic messages" (Part 4 of the Ordinance) come into play.
The former (Part 3) makes it an offence for any person to supply, acquire or use harvesting software/harvested address lists for sending commercial electronic messages without the consent of the recipient. Another offence under Part 3 is the sending of commercial electronic messages using automated means. The maximum penalty for such offences is a fine of HK$1 million and 5-year imprisonment.
Part 4 is confined to the sending of "multiple" commercial electronic messages. Examples of offences under Part 4 would be the initiation of transmission of such messages, via unauthorised access to a telecommunications device or with an intent to deceive or mislead recipients as to the source of messages. Sending such messages with falsified header information is also prohibited. Offences under Part 4 attract a maximum penalty of an unlimited fine and 10-year imprisonment.
Part 3 and Part 4 of the Ordinance target professional spammers and related illicit activities.
- Phase II (expected effective date: end 2007)
Phase II involves the coming into effect of Part 2 of the Ordinance which contains rules about sending commercial electronic messages. One of the most notable features of Part 2 is that it is an offence to send unsolicited commercial electronic messages to electronic addresses registered under a "do-not-call register" which the Telecommunications Authority is empowered to establish under the Ordinance.
Part 2 also requires senders of commercial electronic messages to clearly and accurately identify themselves (e.g. they must not conceal their telephone calling line identification), who must also provide a way for message recipients to unsubscribe further messages. Under the Ordinance, the Telecommunications Authority may issue an enforcement notice directing a sender to remedy any contravention of the rules under Part 2. Failure to comply with an enforcement notice is an offence and attracts a maximum fine of HK$100,000 on a first conviction.
Details of the "do-not-call register" are expected to be announced by the Government in due course.
4. The Office of Telecommunications Authority and the Police oversee the enforcement of the Ordinance. For electronic messages usually in the form of emails originated from overseas but with a "Hong Kong link" (one of the practical enforcement issues which the Government has identified), the Government will seek co-operation from overseas law-enforcement agencies.
5. Starting from 1 June 2007, recipients of unsolicited electronic messages may report to the enforcement bodies in case of a suspected contravention of Part 3 and Part 4 of the Ordinance, by using a prescribed form. However, in cases where Part 3 and Part 4 do not apply (e.g. no address-harvesting means or no multiple messages are involved), recipients can only complain with the relevant service providers under the existing industry code of practice. When Phase II comes into operation, the recipients can register themselves under the "do-not-call" register to "reject" further unsolicited messages.
For further information, please contact:
Phone: +852 2843 4414
Fax: +852 2103 5055
Phone: +852 2843 4572
Fax: +852 2103 5416