HK Government Consults on Possible Spam Legislation

09 August 2004

Edward Alder

The scourge of spam needs no introduction to any earthbound email user. Customarily any news item on spam begins with figures purporting to show what proportion of email constitutes “spam” by one definition or another. Such figures are at best approximations. For present purposes, it is difficult to do better than cite the December 2003 survey by the Hong Kong Internet Service Providers Association (HKISPA) which showed that 50% of email in Hong Kong at that time was spam with around 5% originating from Hong Kong.

Hong Kong anti-spam activists have been marshalling their efforts in impressive fashion, and in particular urging governmental action, for some time now. The Hong Kong Anti Spam Coalition and the HKISPA and others hosted a “To Regulate or Not” forum in January this year and followed it on 25 June with a “Dam the Spam” forum. Both were well attended by government agencies, industry bodies and particular companies with an interest in spam.

The 25 June event coincided with the release by Hong Kong’s Telecommunications Authority of the Government’s long awaited Consultation Paper on spam entitled “Proposals to Contain the Problem Unsolicited Electronic Messages”. The consultation ends on 25 October and submissions can be lodged at www.ofta.gov.hk.

The Paper is, in many ways, commendably wide-ranging. The consultation is not confined to email but adopts a technology neutral approach addressing the longstanding problem of junk fax and the emerging issues of junk SMS and MMS.

It kicks off with a genuinely useful discussion of the definition of spam. Does a message have to have been sent in “bulk” or be commercial in nature or perhaps be undesirable or illicit to be spam? Does any prior voluntary relationship between the sender and recipient prevent a message being spam? These are questions that have to be asked and answered if the Hong Kong Government is to legislate.

The consultation is, in part, a data gathering exercise and the Authority invites the submission of data on the nature of the problem to assist in framing policy.

From there, the Paper moves to brief but comprehensive surveys of the problems caused by spam for industry players and consumers, the existing Hong Kong legislation touching on spam, principally the Personal Data (Privacy) Ordinance, and finally the various non legislative measures already available.

After that encouraging start, the Paper will disappoint many and it is hard not to feel that the Authority underestimates the genuine public and industry appetite for anti-spam legislation, and legislation now, regardless of the very real questions around the efficacy of legal measures in the fight against spam.

Hong Kong is behind the curve on anti-spam law in comparison with other common law jurisdictions such as Australia, the UK and the US and developed Asian markets such as Korea and Japan often invoked by the Authority in other contexts as models for Hong Kong.

Having noted the pro-legislation views of HKASC and other industry bodies, the Paper, in a somewhat Kafka-esque passage, goes on to say that “unsolicited messages, in particular emails and faxes, (are) an efficient and low cost marketing tool widely adopted by (SMEs). Some are of the opinion that … additional regulations on unsolicited electronic messages may impede such use by SMEs. Some [it is not clear who] consider that the enactment of a new legislation on unsolicited electronic messages will also have an impact on direct marketing businesses [which] will need to ... configure their direct marketing strategies to conform with the relevant legislation.

Whoever they are, they are right to be concerned. It is hardly a valid objection to anti-spam legislation that senders of unsolicited messages will have to comply with it and stop sending unwanted spam.

The Government invites views on the pros and cons of “a legislative approach” to spam and makes clear that if legislation is preferred, the Government will further consult the public on definitional issues and the nature of the regulatory restraints.

A month ago Singapore’s IDA released its Consultation Paper on “Proposed Legislative Framework for the Control of Email Spam” which leapfrogs the “if” question and plunges straight into the “how” question, concluding that an opt-out legislative regime like that in the US would be appropriate for Singapore.

While the Government has to be open-minded at the consultation stage, and the Paper recognises the problems caused by spam, many in the anti-spam community will take little heart from the consultation. Legislation is by no means a certainty, and if legislation does emerge as the preferred course we have a lengthy two stage consultation procedure ahead of us.

First published in South China Morning Post on 20 July 2004 titled "Ofta's approach to spam offers little hope of speedy action".