On 2 January 2014, the Personal Data Protection Act 2012 (PDPA) came into force. It is concerned with, among other things, messages advertising or promoting goods or services, or a business or investment opportunity. Those messages are called “specified messages”. Any business that intends to send such messages to a Singapore telephone number must check if that number is listed in the Do Not Call Registry (DNC Registry). If it is, such messages cannot be sent, unless the subscriber in question has given clear and unambiguous consent to receive them. Failure to comply with the PDPA is a criminal offence, punishable by a fine of up to S$10,000.

The PDPA provides some exceptions, e.g. messages sent by a public agency to promote non-commercial programmes and messages sent for market research. One major exception arises from the Personal Data Protection (Exemption from Section 43) Order 2013 (the Exemption Order). It allows organisations to send specified fax or text messages (but not telephone calls) to a Singapore telephone number when the sender is in an “ongoing relationship” with the subscriber, and the message is related to the ongoing relationship. Such messages must contain information enabling the individual to opt out of receiving further specified messages. If an individual opts out, organisations must stop sending specified messages within 30 days.

The Exemption Order has been criticised for giving businesses a “back door” to bombard their consumers with marketing e-mail and text messages. Moreover, while subscribers of telephone numbers may still opt out, it also means more work for the consumer, given the number of “ongoing relationships” any given consumer could have with businesses. This detracts from the convenience of having one national DNC Registry.

There is little clarity as to exactly what an “ongoing relationship” is. The Advisory Guidelines on the Do Not Call Provisions issued by the PDPC have defined an “ongoing relationship” as “a relationship, which is on an ongoing basis, between a sender and a subscriber or user of a Singapore telephone number, arising from the carrying on or conduct of a business or activity (commercial or otherwise) by the sender”. This does not precisely define the start and end of such “ongoing relationships”, which could begin as early as a consumer’s inquiry, and may have no definite end, such as a consumer’s relationships with businesses providing ad-hoc services.

It is also unclear if the “ongoing relationship” extends to the sender’s sister companies or parent organisations.

In other words, an unscrupulous business may very easily put out a misleading advertisement to solicit inquiries. When potential customers call, that business may then claim an “ongoing relationship”: that would then be the signal for related and subsidiary businesses to exploit that ongoing relationship by messaging those potential customers.

The Exemption Order is an attempt to balance the legitimate needs of businesses to reach out to their consumers against those consumers’ wishes to avoid bothersome and perhaps intrusive messages. With further refinements to the Exemption Order and the PDPA, it can be expected that this balance will be able to be more finely struck. For the time being, however, there remain loopholes which businesses are able to exploit. An opportunity has been missed to send a clear and unambiguous message on what is permitted under the new law.