Hong Kong like many other open economies is vulnerable to the problems caused by unsolicited electronic messages ("UEMs"). It is estimated that over 60% of all emails received in Hong Kong are UEMs and over 99% of the UEMs come from outside Hong Kong. Recipients of UEMs suffer the inconvenience of work interruptions, additional expenses like wasted fax papers and roaming telephone charges, additional time in sorting spam mails etc.
Although there are existing provisions such as the Telecommunications Ordinance (Cap. 106), Crimes Ordinance (Cap. 200), Theft Ordinance (Cap. 210) and Personal Data (Privacy) Ordinance (Cap. 486) prohibiting certain acts that may facilitate or lead to spamming, or certain criminal acts supported by spammed activities, they do not regulate the conducts of, and responsibilities for, sending UEMs and their related activities.
In line with similar legislation in many other more advanced economies, the Unsolicited Electronic Messages Ordinance 2007 (the "Ordinance") was passed and came into force in 2 phrases on 1 June 2007 and 22 December 2007 respectively with the aim of tackling unsolicited commercial electronic messages in Hong Kong.
The Ordinance covers electronic messages sent over a public telecommunication service for advertising, promoting or offering goods or services. These include pre-recorded voice messages sent to telephones, text messages, faxes and emails on the internet. The messages must have "a Hong Kong link" e.g. the message originates from Hong Kong, the relevant telecommunication device is located in Hong Kong, the message is received in Hong Kong (irrespective of whether the recipient is a Hong Kong resident), or the sender is an individual or organization located in Hong Kong.
Scope of Prohibitions
- Phrase 1 of the Ordinance prohibits "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).
- Phrase 2 implements the following rules to be observed by senders of commercial electronic messages (Part 2 of the Ordinance) :-
- Provide clear and accurate sender information.
- Provide unsubscribe function free of charge.
- Honour the do-not-call registers.
- Not to use misleading headings in commercial email messages.
Following the new law, sending an "unsolicited commercial electronic message" without consent (either express or inferred or deemed consent) of the recipient is in breach of the Ordinance.
Consent is defined under Section 5(2) of the Ordinance as :-
- express consent, whether given by the relevant electronic address-holder or any other person on his behalf; or
- consent that can reasonably be inferred from the conduct of the individual or organization concerned; and
- consent is deemed to have been given if the registered user of an electronic address or a person on his behalf :-
- has, either in response to a clear and conspicuous request for consent or at his own initiative, given his consent to the sending of the message; and
- has not, within a reasonable period of time prior to the sending of the message, withdrawn that consent.
Section 6 stipulates that the Ordinance does not apply to the following electronic messages which falls within the description of Schedule 1 :-
- messages or communications between a caller and a recipient without any pre-recorded or synthesized (machine-generated or simulated) element;
- messages that involve :-
- person-to-person interactive communications between a caller and a recipient; and
- a pre-recorded or synthesized (machine-generated or stimulated) element,
whereby the pre-recorded or synthesized element is activated in response to information communicated by the caller;
- television programme services regulated under the Broadcasting Ordinance (Cap. 562); or
- sound broadcasting services regulated under the Telecommunications Ordinance (Cap. 106).
Penalties For Breach
Penalties for failure to comply with the Ordinance include enforcement notice, pecuniary penalties escalating to search warrants for seizure and court injunctions and a maximum imprisonment of up to 10 years.
It is therefore advised that all mass message senders seek legal advice on the exact parameters of the Ordinance affecting their promotional activities by electronic means.
If you are interested to know more about the above article or any question on the new law, lawyers in our Intellectual Property / Information Technology department will be happy to assist you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.