A bill regulating unsolicited commercial electronic messages will be tabled at the Legislative Council on July 12, Secretary for Commerce, Industry & Technology Joseph Wong says.

He hopes the bill can be passed in the coming legislative year. The new law will be introduced in phases and the trade will be given a grace period of up to six months.

Right balance: Secretary for Commerce, Industry & Technology Joseph Wong and Deputy Secretary Marion Lai discuss the bill regulating unsolicited commercial electronic messages.

Less nuisance

Mr Wong said the bill covers faxes, SMS, voice and video calls. To allow limited forms of electronic marketing activities and to address the concern of small- and medium-sized enterprises, the bill will not at this stage regulate real-time person-to-person telemarketing calls.

The bill proposes an "opt-out" regime, whereby the sender of a commercial regulated message is required to provide an electronic address to enable the receiver to request that the sender stop sending messages. The messages should include accurate sender information, while their subject heading should not mislead recipients and number identification should not be concealed.

To support the opt-out regime, the bill will empower the Office of the Telecommunications Authority to form "do-not-call registers" for recipients opting out of receiving further messages. The registers will initially cover pre-recorded voice or video messages, fax messages and SMS or MMS messages.

Deputy Secretary for Commerce, Industry & Technology Marion Lai said person-to-person telemarketing requires substantial manpower resources and time. The extent to which they can cause a nuisance to recipients is much more limited than pre-recorded messages.

"Nevertheless, if it is decided in future to bring person-to-person telemarketing calls into the ambit of the bill, such a decision could be effected quickly," Mrs Lai said.

International co-operation

As most junk messages originate outside Hong Kong, international co-operation is key to tackling them.

"The bill provides a firm basis to enhance such co-operation, particularly with those jurisdictions with similar anti-spam laws," she said.

To avoid potential abuse of the information on the do-not-call registers, the bill proposes a $1 million-fine and five years jail for any misuse.

The authority will issue enforcement notices to organisations or people who fail to observe the rules and requirements and specify the steps to remedy the contravention. Failure to comply with an enforcement notice will be an offence punishable by fine of up to $100,000.

Enforcement notice recipients can appeal to the Unsolicited Electronic Messages (Enforcement Notices) Appeal Board, to be set up under the bill. To prevent abuse of the appeal mechanism, the lodging of an appeal will not suspend the operation of the enforcement notice unless it is ordered by the appeal board.

Better protection

Victims of unsolicited electronic messages can make civil claims for loss or damage, irrespective of whether the party who sent the messages in contravention of the bill is convicted. If the amount of monetary claim is less than $50,000, victims can make the claim at the Small Claims Tribunal.

Heavier penalties will be applied to the offences regarding the supply, acquisition or use of electronic address-harvesting software or harvested lists of electronic addresses for sending commercial electronic messages without the consent of registered users of electronic addresses. These contraventions will be prosecuted in court and subject to a $1 million-fine and five years jail.

"For fraud and related activities in connection with spamming, we propose to impose even heavier penalty of a fine of any amount to be determined by the court and up to 10 years jail. The Police will be responsible for enforcing these fraud and related offences," Mrs Lai said.

Mr Wong said: "We believe they (the proposals) have struck the right balance between allowing limited telemarketing activities, and protecting the interests of individuals not to be harassed by all these unsolicited messages."