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Q1.2. Some call centres will use an automatic telephone dialling system that dials a list of numbers and turns the call over to an agent when a human responds. This system is commonly known as predictive dialler. When a call is put through by a predictive dialler and there is no available agent in the call centre to answer the call, the called person will hear a silent background or music until the call is forwarded to the agent. Are such calls regulated under the UEMO?

A: Currently, the UEMO does not cover person-to-person interactive communications. Nevertheless, the Government will closely monitor the status and development of electronic marketing in Hong Kong, and will review the need to regulate person-to-person promotional calls in due course.

Having said that, call centres are strongly advised not to set an "aggressive" mode for their dialling systems (i.e. adjusting the call rate so that it will be unlikely for the recipient to wait before the call is put through to an agent, or dropping the call if there is no available agent) so as to minimise the nuisance caused to the public.

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A: The UEMO prohibits the collection of electronic address by address harvesting software and "generation" of electronic addresses using automated means. Senders should ensure that the list of electronic addresses to which commercial electronic messages are sent, is not produced by these means as prohibited under sections 15 to 18 of Part 3 of the UEMO. On the other hand, the "sending" of messages by automated means is not prohibited under the UEMO. Having said that, starting from Phase II of the UEMO, senders are required to follow the rules of sending commercial electronic messages as stipulated under Part 2 of the UEMO.

Please note that, regardless of whether the collection or generation of electronic addresses is by automated or non-automated means, the data user should ensure that the collection or generation of the electronic addresses complies with other applicable laws including the Personal Data (Privacy) Ordinance (Cap. 486).

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A: For a message that is in the form of a voice, sound, image or video message (or a message combining voice, sound, images or video) and is sent to a telephone number, the sender information and unsubscribe facility statement must be presented at the beginning of the message in a clear and conspicuous manner and follow the order prescribed in section 8 of the Unsolicited Electronic Messages Regulation ("UEMR").

Guidance on where the sender information and unsubscribe facility statement should be located within a fax, email or SMS message will be given in the code of practice to be issued by the TA later.

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A: Sections 6 and 7 of the UEMR require that the sender information and the unsubscribe facility statement be given in both Chinese and English, unless the recipient has indicated that such information may be given solely in a particular language.

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A: According to section 5(1) of the UEMR, sender information includes the name, address and contact telephone number of the sender (i.e. the individual or organization who authorized the sending of the message). If the message is an email, an email address of the sender should also be provided in the message. Hence, a message that only provides a hyperlink does not fulfil the above requirements.

It should be noted that, for a SMS message, the address of the sender may be omitted from the message if the recipient is able to obtain the address by using the telephone number included in the message.

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Q3.4. Because there is length limitation for SMS message, can the sender information and the unsubscribe facility statement be presented solely in one language? Can some of the sender information be omitted?

A: Senders of SMS messages should observe the requirements under sections 6 and 7 of the UEMR and include sender information and unsubscribe facility statement in both Chinese and English, unless the recipient has indicated that such information may be given solely in a particular language.

In view of the length limitation, an exemption is provided in section 5(4) of the UEMR for omitting the address of the sender in an SMS message, if the recipient is able to obtain the address by using the contact telephone number provided by the sender in the SMS message.

Further guidance on how to present sender information and unsubscribe facility statement in an SMS message will be provided in a code of practice which is expected to be issued by the TA later this year.

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Q3.5. A message recipient called the message sender and verbally made an unsubscribe request. Is it necessary for the sender to keep record of this verbal request for 3 years?

A: Yes. Irrespective of the means by which the unsubscribe request is made, the sender is required under section 9(3) of the UEMO to ensure that a record of the unsubscribe request is retained in the format in which it was originally received, or in a format that can be demonstrated to represent accurately the information originally received, for at least 3 years after its receipt.

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Q3.6. When a recipient raises an unsubscribe request, but does not provide his/her name or telephone number and so the sender is unable to remove the telephone number from the distribution list, will the sender be considered as contravening the relevant provision of the UEMO?

A: Section 9(4) of the UEMO provides a definition for "unsubscribe request". If the relevant electronic address cannot be ascertained (for example if the recipient refused to state the electronic address) when a recipient uses the unsubscribe facility to request a telemarketer to stop sending further commercial electronic messages at that particular electronic address, it may not constitute a valid unsubscribe request. Whether the relevant electronic address can be ascertained or not depends on the circumstances such as how messages are sent and what information is provided by the recipient. Each case has to be considered on its own merits in case of dispute.

It is expected that the requirements about honoring unsubscribe request (being part of the rules about sending commercial electronic message under Part 2 of the UEMO) will come into effect towards the end of this year.

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Q3.7. If a recipient of an email message made an unsubscribe request to the sender, can the sender still send commercial electronic messages to this recipient via other means, e.g. fax?

A: After receipt of an unsubscribe request, the sender should cease sending any further commercial electronic messages to the electronic address specified in the unsubscribe request. Accordingly, if the recipient requests that messages should not be sent to a particular electronic address, the UEMO does not prevent the sender from sending messages to other electronic address of this recipient. Having said that, to minimize nuisance caused to the recipient, the sender is advised to first confirm with the recipient on whether he/she would like to receive any further promotional messages sent by other means before sending them out.

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Q3.8. If the promotional email messages are sent from "Do-Not-Reply" email account which is not capable of receiving emails, will the sender be considered as contravening the rules stipulated under Part 2 of the UEMO ?

A: Section 5 of the UEMR requires that the sender must include a contact email address in an email message, but it does not require that the contact email address must be the email account from which the message was sent out.

Under section 9(1) of the UEMR, an email message must provide an unsubscribe facility which is capable of receiving an unsubscribe request transmitted from the telecommunications device that is used by the recipient to access the email (e.g. an email address, a web page or a web address). However, the UEMR does not require that the email address serving as the unsubscribe facility must be the email account from which the message was sent out.

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A: Section 13 of the UEMO requires that the sender shall not conceal or withhold the CLI of the sending number. There is no requirement in section 13 that the CLI should be the same as the number making the phone call. However, it should be noted that the sender is prohibited under section 24 of the UEMO from falsifying header information including CLI in multiple commercial electronic messages that have a Hong Kong link.

Please also note that according to section 8 of the UEMO and regulation 5 of the UEMR, the commercial electronic message must include the telephone number of the party who authorised the sending of the message.

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A: Both the employee and the employer may be liable. According to section 59(1) of the UEMO, any act done or conduct engaged in by an employee shall be treated (for the purpose of the UEMO) as done or engaged in by him as well as by his employer, whether or not it was done or engaged in with the employer's knowledge or approval. For possible defences, please refer to section 59(3) and section 59(4) of the UEMO respectively.

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Q5.2. If a company has a number of branches and a recipient made an unsubscribe request to only one of these branches, can the other branches send commercial electronic messages to this recipient?

A: If the message is sent by one branch of an entity, the message should be considered as being sent by that entity. If the unsubscribe request is made by a recipient to only one branch of an entity, the unsubscribe request should be considered as being made to that entity and therefore the other branches of that entity should not send any further commercial electronic messages to that recipient.

Sometimes, the entity may provide options for the recipient to choose to unsubscribe from messages to be sent from its different branches. In the circumstances, that entity should at least provide an option for the recipient to unsubscribe from all commercial electronic messages to be sent by that entity or any branch of that entity.

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Q5.3. A telemarketer appoints an agent to send commercial electronic messages on its behalf and the contract signed between the two parties has stated that the agent must comply with the requirements of the UEMO. Will the contract be sufficient to be the defence for the telemarketer if it turns out that the UEMO has been contravened?

A: No. Under section 59(3) of the UEMO, it is a defence for the telemarketer to prove that it has taken practicable steps to prevent the agent from contravening the UEMO. In determining whether practicable steps have been taken by the telemarketer, all relevant facts and evidence will be taken into account and considered by the TA on a case-by-case basis. Telemarketers are advised to take other practicable steps apart from just signing a contract (if there is any such step) in order to prevent the agent from contravening the UEMO.

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Q5.4. If a telemarketer rented/acquired a distribution list from a list supplier and it turns out that the generation of the distribution list has contravened the UEMO, who will be liable, the telemarketer or the list supplier? How will OFTA handle the case when the list supplier has closed its business?

A: Section 15, 16 and 17 of the UEMO prohibits the supply, acquisition and use of address harvesting software and harvested address list in connection with the sending of commercial electronic messages without the consent of the recipients. These provisions are now effective as starting from 1 June 2007. If the relevant distribution list is a harvested address list, the supplier will be liable under section 15 (for supply of harvested address list), while the telemarketer may be liable under section 16 and/or 17 (acquisition and/or use of the harvested address list). It is a defence for a party to prove that he has taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Even though the list supplier may have closed its business, section 60 of the UEMO provides that the director, officer or other person who, at the time of the offending act was done, was responsible for the internal management of the company/organization, can also be liable for the offending act. So even if the company of the list supplier ceases to exist, the relevant director of the list supplier may still be liable.

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Q5.5. Under the situation that a distribution list is being rented and the recipient raises an unsubscribe request, which party should be responsible to process the unsubscribe request, the telemarketer who rent the list or the list supplier?

A: Section 9 of the UEMO stipulates that the unsubscribe facility must allow the recipient to be able to send an unsubscribe request to the individual or organization who authorized the sending of the message. So the starting point is that the party who authorized the sending of the message should be responsible. Nevertheless, the parties may have other commercial arrangements, such as the telemarketer outsourcing the whole promotional campaign to a supplier, and the liability may need to be considered in view of the contractual arrangement.

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A: Section 5 of the UEMO has provided a definition of consent in relation to the sending of a commercial electronic message. The mere acquiescence to a statement in a message is not considered sufficient to infer consent. A positive indication by the recipient is required (such as pressing a consent button in a web page, sending a reply email/fax/SMS, etc.) before the sender can claim that he/she has obtained consent from the recipient.

In the circumstances that the recipient does not reply to the message (and therefore does not consent or object to receiving further messages), the sender is allowed under the opt-out regime to continue to send messages to the recipient until the recipient raises an unsubscribe request.

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Q6.2. By the act of exchange of business cards, can it be inferred from the conduct that one party has agreed to receive the commercial electronic message sent by the other party?

A: The definition of consent in relation to the sending of a commercial electronic message is given in section 5 of the UEMO. The issue of this question is whether consent can be reasonably inferred from the conduct of exchanging business cards and this must be determined on a case-by-case basis. However, here are two general examples to illustrate the concept of "reasonable inference". If an exhibitor displays a clear message on top of the name card collection tray, saying that they will send further product information to those who left their name cards, it may be reasonable to infer that consent has been given by the persons who left their name card to receiving further messages from the exhibitor. On the contrary, if the name card collection tray does not have such message, it may not be reasonable to infer that consent has been given by the persons who left their name cards (as these persons may simply want to receive free gifts by leaving their name cards).

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A: Yes. By section 11(2) of the UEMO, if prior to or subsequent to the listing of the electronic address in the DNC register, the registered user of the electronic address has given his consent to the sending of the message, the sender can still send a commercial electronic message to the electronic address, until the recipient raises unsubscribe request. It should be noted that a consent given to an individual message sender overrides the listing on a DNC register. In other words, while a person can list his/her address on a DNC register to indicate a "general" refusal to receive promotional messages, that person can still choose to give consent to any "individual" message senders.

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Q7.2. Numbers in the DNC register may be terminated by the registered users and then recycled by the telecommunications operators. (For example, a user registers his/her telephone/fax number with the DNC register but later terminates the telephone/fax service. The telecommunications operator may later reassign this number to another user.) What will be done to address this number recycling issue?

A: OFTA will be coordinating with the telecommunications service providers to obtain list of terminated/suspended numbers on a regular basis in order to cleanse the DNC register periodically. If you have terminated the service of your telephone number, there is no need for you to cancel your registered number from the do-not-call registers. If you have terminated the service of your telephone number (which has been registered on the do-not-call registers) and are later reassigned with the same number again, you would have to do the registration of that number again by calling the registration hotline if you would like the protection on your number to continue.

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