Unsolicited Electronic Messages Ordinance

Compelite take pride in the fact that they have followed respectable eMarketing practices since introducing their eMarketing system to the public over 6 years ago. The Australian Spam Act 2003, which came into force on April 10th 2004 had no affect on Compelite's eMarketing system, as all rules set forth, were already being adhered to. Therefore with the introduction of the Unsolicited Electronic Messages Ordinance (UEMO) to Hong Kong on 1st of June 2007, we can proudly say that we have one of the first eMarketing systems in Hong Kong that fully comply with the regulations of the new ordinance. Having said that…

Hong Kong’s promises to enact an anti-spam law have finally come into realisation with the release of the Unsolicited Electronic Messages Ordinance (UEMO).

It should also be noted that these UEM’s (Unsolicited Electronic Messages) apply only to messages that are sent by someone residing in Hong Kong; to someone residing in Hong Kong.

Due to commence in two phases, with phase 1 beginning on the 1st of June 2007, we will see the end of spam messages with the purpose of advertising, promoting or offering any goods, services, business opportunities sent via:

• Pre-recorded voice messages sent to telephones
• Text messages sent via SMS
• Multimedia messages sent via MMS
• Faxes or
• eMails

Phase one, due to be deployed on the 1st of June 2007, will consist of the following parts:

Part 4 of the UEMO includes fraud and other illicit activities related to the sending of multiple commercial electronic messages including:

• falsifying header information in sent emails
• using a false identity when registering electronic addresses or domain names that are used to send multiple emails
• falsely representing to be the registrant of an email address or domain name that is used to send multiple emails.

Offenders to the above activities will be liable to an unlimited fine and/or imprisonment up to 10 years.

Part 3 of the UEMO includes the use of dishonest techniques to increase the number of recipients, including:

• Supply, acquisition or use of email address harvesting software or harvested address lists for sending multiple emails without the consent of the recipients
• Automatically generating email addresses to send unsolicited emails
• The use of automated techniques to register for 5 or more email addresses to send multiple emails
• Relay or retransmission of multiple emails to deceive recipients of the source of these messages.

Offenders to the above activities will be liable to a fine of up to HK$1 Million and/or imprisonment up to 5 years.

Individuals may also take out civil action against those who commit these unsolicited activities, due to any loss or damage caused under the UEMO.

Phase two is due to be deployed by the end of 2007. This involves the ability for members of the public to register their phone, fax and SMS/MMS numbers in a do-not-call register.

The following article was recently published in the South China Morning Post:

Unsolicited Electronic Messages Bill ignores cold calls
Telesales escape curbs under anti-spam law
Main provisions of the legislation

• Commercial e-mail, SMS, fax or phone calls must include sender’s identity and information allowing receiver to unsubscribe
• Senders must keep unsubscribe request for seven years
• Senders have 10 days to remove subscribers upon request
• Do-not call register to be set up
• No misleading subject headings
• Penalties range from HK$100,000 to HK$1 million in fines and five years in jail
• Appeal board to be set up
• Overseas e-mails exempt
• Employees’ spam action can be blamed on employer

Cold calls from telesales agents plying goods and services have been excluded from an anti-spam law passed yesterday – an exemption which the government says could save tens of thousands of jobs.

Secretary for Commerce, Industry and Technology Joseph Wong Wing-ping said commercial activities involving person-to-person telesales were estimated to amount to HK$7.2 billion. To restrict this under the anti-spam law would affect the livelihoods of sale agents.

But he pledged the bureau would closely watch these activities and would not rule out the possibility of taking future action to regulate them.

The Unsolicited Electronic Messages Bill – aimed at stemming spam e-mails, text messages, pre-recorded calls, faxes and video and audio messages – was passed in the Legislative Council yesterday.

The bill covers unsolicited electronic messages from businesses advertising, promoting or sponsoring goods or services, taped phone messages, and unsolicited messages with a Hong Kong link included – meaning messages sent from registered addresses or numbers in Hong Kong or to local numbers.

E-mails from overseas addresses cannot be included as no international protocol for dealing with such messages exists.

The law also includes a provision under which people can sign up to a “do not call” register and anyone who contact people on the register can be prosecuted.

People who send spam e-mail or enable others to do so may face fines ranging from HK$100,000 to HK$1 million and up to five years in jail once the law is enacted. The section of the law covering the sending of spam e-mails will become effective on June 1. Other aspects will come into effect by the end of this year.

Legislator Wong Ting-kwong proposed an amendment to include person-to-person calls in the bill, saying it was unreasonable for cold-callers to do business at the expense of the “innocents…. When you receive a letter, you can choose not to open it. But with cold calls, you pick it up without knowing it is one”, he said.

However, bureau chief Mr. Wong said it was “technically” difficult to collect evidence for the prosecution of person-to-person cold calls.

The legislator’s motion for an amendment was vetoed after two thirds of the voting members backed the government’s bill.

Randall Davidson, chairman of the Hong Kong Direct Marketing Association, welcomed the decision not to include cold-callers in the bill.

We don’t feel that person-to-person calls came under the definitions of the bill,” he said, adding that his association members did not usually use recorded messages in marketing campaigns.

"They have a terribly low response rate and everyone, including our own members, consider them a nuisance.”

In an earlier submission, his organization, along with the Call Centre Association, estimated that more than 400,000 people relied on phone contact to promote their products and services.

The Consumer Council, which previously submitted views on the bill to Legco, had pushed for cold-calling to be included under the provisions of the bill.

A spokeswoman for the consumer watchdog, Rosa Wong Wan-ming, said the bill was not proactive enough.

“But it [does] take steps to combat the problem of spam,” she said. “We hope the effectiveness of this legislation can be reviewed after a period. If it’s not working, we hope more proactive steps can be taken to amend the situation.”

When the new law comes into effect, you may report any unsolicited messages to OFTA (Office of the Telecommunications Authority) via the form found on their website here: http://www.ofta.gov.hk/en/enq_help/uem.html. This form will also be obtainable through a fax-on-demand service (call 2961 6333, press 3 for English then 9 for ‘Information by Fax’).

For further information regarding the UEM, you may visit the OFTA website at www.ofta.gov.hk or call their hot line on 2961 6333 (press 3 for English then 4 for UEM matters).