In April this year, the Magistrates’ Court of Hong Kong directed a defendant to disclose information on the sending of unsolicited group chat messages on a mobile messaging application. This confirms that mobile chat messages and potentially other forms of interactive messaging on social media would be subject to the anti-spam law of Hong Kong, the Unsolicited Electronic Messages Ordinance (“UEMO“). The regulatory authority, the Office of the Communications Authority (“OFCA“), received over 1,000 complaints about the sending of an identical, unsolicited short message promoting the defendant’s tutor referral service via the mobile messaging platform. The defendant was investigated by the OFCA as to potential contravention of various requirements under the UEMO, including:
- Commercial electronic messages (“CEM“) must include accurate sender information;
- CEMs must contain an unsubscribe facility;
- Senders must honour unsubscribe requests; and
- Senders must not send CEMs to a phone number listed on the do-not-call register.
The most interesting implication of this case is that the ambit of “commercial electronic messages” is considered wide enough to cover mobile messaging. This may potentially extend to other forms of interactive messaging on social media too. This is despite the fact that when the UEMO came into force on 22 December 2007, many of these mobile messaging platforms were not yet in existence. This is consistent with the spirit of the UEMO, which aims to tackle unsolicited electronic marketing messages with a Hong Kong link sent through text or pre-recorded voice messages to electronic addresses including telephone numbers, fax numbers, email addresses and instant messaging accounts. The definition of “electronic messages” is also drafted in wide and technology-neutral terms, referring to messages in any form sent over a public telecommunications service to an electronic address, including text, voice, sound, image or video messages or messages combining those mediums.
OFCA has also stated that as a matter of policy, it takes a “technology-neutral approach” to enforcement.
Thus, the lesson to take away is, senders of marketing materials through existing or new messaging channels or media must carefully consider the potential implications of the UEMO and must comply with the applicable requirements.