LegCo To Examine HK Anti-Spam Bill

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

10 July 2006

A bill regulating unsolicited commercial electronic messages will be tabled at the Legislative Council on July 12, Secretary for Commerce, Industry & Technology Joseph Wong announced last week.

He went on to state that he hoped the bill can be passed in the coming legislative year. The new law will be introduced in phases and the trade will be given a grace period of up to six months.

Mr Wong explained that the bill will cover faxes, SMS, voice and video calls.

In order to allow limited forms of electronic marketing activities and to address the concern of small- and medium-sized enterprises, however, the bill will not initially regulate real-time person-to-person telemarketing calls.

The bill proposes an "opt-out" regime, whereby the sender of a commercial regulated message is required to provide an electronic address to enable the receiver to request that the sender stop sending messages. The messages should include accurate sender information, while their subject heading should not mislead recipients and number identification should not be concealed.

To support the opt-out regime, the bill will empower the Office of the Telecommunications Authority to form "do-not-call registers" for recipients opting out of receiving further messages. The registers will initially cover pre-recorded voice or video messages, fax messages and SMS or MMS messages.

To avoid potential abuse of the information on the do-not-call registers, the bill proposes a $1 million-fine and five years jail for any misuse.

The authority will issue enforcement notices to organisations or people who fail to observe the rules and requirements and specify the steps to remedy the contravention. Failure to comply with an enforcement notice will be an offence punishable by a fine of up to $100,000.

Speaking with regard to the exemptions to the scope of the new legislation, Deputy Secretary for Commerce, Industry & Technology Marion Lai explained on Thursday that person-to-person telemarketing requires substantial manpower resources and time, and the extent to which they can cause a nuisance to recipients is much more limited than pre-recorded messages.

"Nevertheless, if it is decided in future to bring person-to-person telemarketing calls into the ambit of the bill, such a decision could be effected quickly," Mrs Lai warned.

As most junk messages originate outside Hong Kong, international co-operation is key to tackling them.

"The bill provides a firm basis to enhance such co-operation, particularly with those jurisdictions with similar anti-spam laws," she went on to observe.

Victims of unsolicited electronic messages will be able to make civil claims for loss or damage, irrespective of whether the party who sent the messages in contravention of the bill is convicted.

Heavier penalties will be applied to the offences regarding the supply, acquisition or use of electronic address-harvesting software or harvested lists of electronic addresses for sending commercial electronic messages without the consent of registered users of electronic addresses. These contraventions will be prosecuted in court and subject to a $1 million-fine and five years jail.

Mr Wong concluded:

"We believe they (the proposals) have struck the right balance between allowing limited telemarketing activities, and protecting the interests of individuals not to be harassed by all these unsolicited messages."

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