Hong Kong’s new anti-spam law, which will regulate all messages sent by electronic means advertising or promoting goods, services, facilities, land and/or interests in land, was published on 1 June 2007 and will be implemented in two phases. The first phase, which came into effect on 1 June, covers the use of improper techniques to communicate with multiple recipients, and the second, which will come into effect by the end of the year, sets out the rules for sending commercial electronic messages.
The government of the Hong Kong Special Administrative Region published the new Unsolicited Electronic Messages Ordinance (Cap 593 of the Laws of Hong Kong) (the Ordinance) in the Gazette on 1 June 2007. The Ordinance is intended to regulate all messages advertising or promoting goods, services, facilities, land and/or interests in land that are sent by electronic means (Commercial Electronic Messages), such as prerecorded voice messages, faxes, emails and messages through short messaging services (SMS) or multimedia messaging services (MMS). The Ordinance will regulate all Commercial Electronic Messages that have a Hong Kong link, such as a message sent to a Hong Kong telephone number, received in Hong Kong, or sent or authorised by a person in Hong Kong or by a Hong Kong company/organisation, and will be implemented in two separate phases.
The first phase, which came into effect on 1 June 2007, covers the use of improper techniques to communicate with multiple recipients, such as the supply of lists of electronic addresses harvested from internet web pages or the actual use of address harvesting software to capture email addresses for sending Commercial Electronic Messages without the consent of the recipients, as well as other techniques such as ‘dictionary attacks’ or ‘brute force attacks’, commonly used by spammers.
The maximum penalty for such offences is a fine up to HK$1m and imprisonment for up to five years.
With effect from 1 June 2007, the Ordinance will prohibit a number of unlawful activities related to the circulation of multiple Commercial Electronic Messages.
A person who knowingly initiates the circulation of multiple Commercial Electronic Messages from:
- a telecoms device, service or network without authorisation;
- a telecoms device, service or network without authorisation with the intent to deceive or mislead recipients as to the source of such messages; a telecoms device, service or network with falsified header information;
- any electronic addresses or domain names registered using information that materially falsifies the identity of the actual registrant; or
- any electronic addresses or domain names with false representations as to the registrant or registrant’s successor in interest to these electronic addresses or domain names,
- may be investigated by the police and be liable to a fine and imprisonment of up to 10 years.
The second phase, which will come into effect by the end of 2007, sets out the rules for sending Commercial Electronic Messages. Part two of the Ordinance prohibits the circulation of Commercial Electronic Messages:
- that do not provide a way for recipients to opt out of receiving further messages;
- where a recipient has already sent an unsubscribe request;
- to an electronic address listed in the ‘do-not-call registers’, unless the consent of the registered users of those electronic addresses has been obtained; or
- from a telephone or fax number with the calling line identification concealed or withheld.
The Telecommunications Authority will establish do-not-call registers for members of the public to register their phone, fax and SMS/MMS numbers to notify all senders of Commercial Electronic Messages that they do not wish to receive such messages. The information contained in these registers will be made available by the Telecommunications Authority to senders of Commercial Electronic Messages. Where the Telecommunications Authority believes a person has failed to comply with part two of the Ordinance, it may issue an enforcement notice to such person. If such person disregards an enforcement notice, he/she may be subject to a fine of up to HK$100,000 on the first conviction and up to HK$500,000 on the second and any subsequent convictions. In addition, a person may also appeal to the Unsolicited Electronic Messages (Enforcement Notices) Appeal Board against an enforcement notice.