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Following is the speech (English translation) by the Secretary for Commerce, Industry and Technology, Mr Joseph W P Wong, in moving the second reading of the Unsolicited Electronic Messages Bill at the Legislative Council today (July 12):
Madam President,
I move that the Unsolicited Electronic Messages Bill be read the second time.
The primary objective of the Bill is to combat unsolicited commercial electronic messages, and to set the ground rules for sending such messages so that the wishes of the recipients can be respected and realised and, at the same time, leave room for the development of normal business activities. The Bill also proposes penalties with deterrent effect in order to sanction those spamming activities through illicit techniques.
In line with similar legislation in overseas jurisdictions, the Bill regulates commercial electronic messages only. Given the fact that transmission of electronic messages is not constrained by boundaries, the Bill makes it clear that all messages originated in or sent to Hong Kong will fall within its scope of application. The areas covered by the Bill include fax, e-mails, short messages, voice and video calls. However, the Bill will not at this stage regulate person-to-person calls in order to allow limited forms of electronic marketing activities and to address the concerns of small and medium enterprises.
I would like to highlight the major features of the Bill. First, the Bill proposes to establish an "opt-out" regime, whereby a sender may send commercial electronic messages to a recipient until the latter refuses to accept further such messages. The sender must provide in the message an "unsubscribe facility" and accurate return electronic address to enable the recipient to make an "unsubscribe request" to the sender for not sending him further such messages.
Any person who does not wish to receive unsolicited electronic messages regulated by the Bill can also request to have his electronic address included in a "do-not-call register" established by the Telecommunications Authority. This will save the trouble of sending unsubscribed messages to individual senders.
In addition, the sender must comply with other rules for sending commercial electronic messages, including the provision of accurate sender information, the prohibition of misleading subject headings, and the prohibition of concealing calling line identification information, etc.
If any organisation or individual contravenes the above rules, the Telecommunications Authority can issue an enforcement notice to require the organisation or individual to remedy the contravention. Failure to comply with the enforcement notice will be an offence punishable by a fine up to $100,000 for the first conviction, and up to $500,000 for the second and subsequent convictions. The heavier penalty for the second and subsequent convictions is to increase the deterrent effect and to ensure that repeated offenders will be suitably punished.
The recipient of an enforcement notice could appeal to the newly established Unsolicited Electronic Messages (Enforcement Notices) Appeal Board. To prevent possible abuse of the appeal mechanism, the Bill provides that, unless it is ordered by the Appeal Board, the lodging of an appeal will not suspend the operation of the enforcement notice. The Appeal Board is also empowered to make an award on costs against an appellant if it is satisfied that the appeal is conducted in a frivolous or vexatious manner.
To prevent any abuse of information collected from the unsubscribe requests or obtained from the "do-not-call registers", the Bill prescribes that it is an offence for using such information for any purpose other than the specified purposes and such an offence is punishable by fine up to $1,000,000 and imprisonment for up to five years.
The Bill also proposes to prohibit the supply, acquisition or use of address-harvesting software and harvested-address lists in order to sanction those acts that support spamming. These offences will, upon conviction, be punishable by a fine up to $1 million and imprisonment for up to five years. For fraud and related activities in connection with spamming, we propose, in view of their seriousness in nature, to impose a heavier penalty of a fine of any amount to be determined by the court and imprisonment of up to 10 years to increase deterrent effect. These techniques should not be adopted by businesses engaged in legitimate electronic marketing activities. Therefore, the relatively heavy penalty should not be a concern to them.
Another proposal in the Bill is to empower the victims of unsolicited electronic messages to make civil claims for loss or damage against the party who sent the messages in contravention of the Bill, irrespective of whether the party had been convicted. Since some victims may only suffer relatively small amounts of monetary losses, such as mobile phone roaming charges, we propose that if the amount of monetary claim is within the jurisdiction of the Small Claims Tribunal (i.e. $50,000), the victim can make the claim in that Tribunal. For higher losses or damages, the claims should be pursued in the District Court.
Madam President, the proposals in the Bill are made on the basis of the outcome of the consultation which we have undertaken in the early part of this year. We are of the view that the proposals are able to achieve a right balance between combating unsolicited electronic messages on one hand, and allowing electronic marketing activities on the other. Since the gazettal of the Bill, it is welcomed and has received general support from various sectors of the community.
To further improve the provisions of the Bill, we would be pleased to work with Members when they scrutinise the Bill. We hope that the Bill can be enacted as soon as possible in the next legislative session in order to reduce the nuisance caused to the members of the public by unsolicited electronic messages.
Ends/Wednesday, July 12, 2006
Issued at HKT 16:05
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