6 March 2005

Anti-Spam Legislation Needs Careful Drafting

The Secretary for Commerce, Industry and Technology recently announced the campaign "STEPS" to combat spam. One key measure under "STEPS" is the enactment of anti-spam legislation.

Anti-spam legislation is about prohibiting "unsolicited electronic messages (UEM)". The first question is what types of UEM should be prohibited – all UEM or just some types of UEM?

Most of the UEM generating complaints are of commercial nature. Therefore by targeting "commercial" UEM, we should have dealt with most of the problems. So doing would also avoid the controversy of whether other types of UEM should be subject to regulation. We note that most of the overseas anti-spam legislation targets specifically at commercial UEM only. We might ask whether the scope of UEM should be extended to cover messages attempting to deceive the recipient of property, spreading pornographic content or computer virus. However, we should consider possible overlaps with other laws.

There are many types of electronic messages – email, fax, text short messages, multimedia short messages, etc. At present, unsolicited email, fax and machine-generated voice calls cause most of the nuisance. In the future, when location-based mobile services become more prevalent, complaints about unsolicited short messages might increase. The legislation itself should be technology-neutral such that it can be extended to cover all types of electronic messages as and when they become a problem. However, if for the time being certain types of electronic messages are not posing a problem, these messages might be exempted from the applicability of the law.

The next question is what is meant by "unsolicited". Most countries have now adopted the "opt-in" approach meaning that commercial electronic messages are "unsolicited" and therefore may not be sent unless the recipient has given prior consent for the receipt of the message. In Europe there is an exception to this rule in that the recipient has a prior business relationship with the sender.

Some countries have adopted a less stringent "opt-out" approach in that unsolicited messages may be sent but recipients may be given ways to opt-out of further receiving similar messages from the sender and the sender must then stop sending messages to the recipient who has opted out.

"Opt-in" gives greater protection to recipients but would impose more restrictions on marketers in accessing potential customers. With "opt-in", some existing mailing list of marketers may have to be abandoned if they cannot establish whether those on the list have given prior consent to receiving messages from the marketers.

In a way, a legislation adopting "opt-out" effectively legalises unsolicited electronic messages which comply with certain requirements such as the inclusion of the "unsubscribe" information, true identity of the sender and any other information or labels prescribed by the law. Some may consider this approach ineffective.

Therefore the drafting of the anti-spam legislation would need wide discussions. On the one hand, we need to protect the interest of the users of electronic messaging services. On the other, we have to ensure that ordinary commercial communications are not inadvertently caught and the use of electronic messages as a legitimate marketing tool is not unduly restricted.

M H Au