Hong Kong Government Consults On Proposed Anti-Spam Laws

by Mary Swire, for LawAndTax-News.com, Hong Kong

24 January 2006

Hong Kong's Commerce, Industry & Technology Bureau last week published proposed anti-spam legislation and launched a two-month public consultation which will last until March 20.

Highlighting key aspects of the proposed Unsolicited Electronic Messages Bill at the InterChambers of Commerce luncheon on Friday, Secretary for Commerce, Industry & Technology John Tsang said it would only regulate electronic messages of a commercial nature, with non-commercial communications from governments, political parties, religious groups, charities or individuals left unaffected.

"It should also put the minds of skeptics and conspiracy theorists at ease in that there is no question of Government using the proposed anti-spam legislation to restrict freedom of speech and freedom of expression in Hong Kong," he stated.

The bureau has proposed adopting a technology-neutral approach and bringing generally all types of electronic messages within the ambit of the Bill, including SMS messages sent to mobile phones.

"This will not only bring the notorious spamming problem areas, such as e-mail, fax and pre-recorded voice messages, within the regulatory framework, but will also cater for new types of electronic messages that may spring up in future in response to technology and service developments," Mr Tsang explained.

However, since Hong Kong salespeople regularly make personal phone calls to promote certain products or services, and this practice is generally accepted as normal and legitimate marketing, the bureau proposes excluding normal person-to-person telephone calls from the Bill's ambit.

Mr Tsang went on to announce that the proposed regulation has adopted the 'opt-out' regime after thorough consideration, which requires senders of commercial electronic messages to stop sending further such messages to a recipient if the recipient asks them to.

He suggested that an 'opt-out' regime would provide companies with room to promote their products, and help the development of small and medium sized enterprises. It provides opportunities for recipients to browse through promotion information before deciding whether to receive further messages.

In order to address one of the 'opt-out' regime's shortcomings - that a recipient needs to unsubscribe from many senders - the bureau has proposesd implementing a system of 'do-not-call registers'.

"Once an electronic address is placed in such a register, the legal effect will be the same as sending unsubscribe messages to all e-marketers that no further commercial electronic messages should be sent to that electronic address," Mr Tsang told those attending the luncheon.

Mr Tsang said at present, the registers should be suitable for pre-recorded voice messages, fax messages and SMS/MMS messages, while the Telecommunications Authority will determine which electronic-address types are suitable for the registers.

The bureau also proposes extending extra-territorial application to the Unsolicited Electronic Messages Bill. This means as long as there is a Hong Kong connection, or 'nexus', for an electronic message, the message must comply with the Bill's requirements.

"This extra-territorial application will facilitate co-operation with overseas law-enforcement agencies and send a clear signal to overseas spammers that their act would not be tolerated," Mr Tsang said.

Under the proposed regulation, investigations will be based on complaints. Victims will be be permitted to seek court remedies from the spammer within six years, and convicted spammers will be liable to a maximum fine of $100,000, and $1,000 per day for repeated offences.

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