Hong Kong's Anti-Spam Law Allows Obfuscation of Unsubscribe Information

Thank you for your reply. I think you are not considering the full picture. Please find attached a screenshot of the offending message in my email client. As you can see, it appears as the Chinese text "如看不到內容，請按此" and a series of remotely-hosted images that my company's security policies recommend that my email client be configured not to load. There is no visible, English unsubscribe facility.

If the Chinese text is an unsubscribe facility, then the sender is remiss in not including English text as well.

Please confirm whether failure to provide a bilingual unsubscribe facility is an offence under the UEMO.

If there is an unsubscribe facility in the images, please note that:
1. These are not part of the email message sent to my server.
2. They are not accessible to users of email clients configured not to load remote images.
3. They are not accessible to blind people.

Please state clearly whether the UEMO allows unsubscribe facilities to be described outside of the message sent, and in a form inaccessible to many users.

We note that the complained message did contain the unsubscribe facility in both Chinese and English as shown in Appendix 1. As the UEMO does not prohibit senders using different technology of sending email messages, one might configure the email client to load the remotely-hosted images to find the unsubscribe facility as shown in Appendix 1.

In your email, you asked if the Chinese text “如看不到內容，請按此”is the unsubscribe facility. This statement in English means “if the content cannot be seen, please click here”, and it is not the unsubscribe facility.

Section 7 of the Unsolicited Electronic Messages Regulation (“UEMR”) stipulates that the unsubscribe facility statement must be given in both Chinese and English, unless the recipient has indicated to the sender that the statement may be given in that language. It is therefore a contravention of section 7 of the UEMR for failure of providing a bilingual unsubscribe facility in a commercial electronic message, if the recipient did not indicate the language preference before.

Thank you for your clarification of your interpretation of the UEM, although I note that you do not completely address all the points I raised in my email of 7 August 2012.

Given that the sender of the message did not provide an unsubscribe facility that was visible to me, the intended recipient, can you now confirm that you will be pursuing the sender for their contravention of the UEMO?

In your reply, please address the following issues:

1. The SMTP email message delivered to my mail server did not include an unsubscribe facility, it only contained a link to an unsubscribe facility.
2. The linked facility provided was in the form of an image of text and therefore inaccessible to blind people. What does the Equal Opportunities Commissioner say about the accessibility of unsubscribe facilities?
3. As the UEMO requires the sender of a message to provide an unsubscribe facility, surely it is the sender's duty to ensure that the facility is provided to the recipient in the message, in a form that they can use. The sender should not assume anything beyond the facility to receive the basic protocol (in this case, SMTP) and understanding of Chinese or English.

I reiterate, sending a link is not the same as providing the linked information, in just the same way that telling you an ISBN is not the same as giving you a book.

The gist of your email is that if the unsubscribe facility is not absolutely text based it would be discriminatory since a person with visual impairment would not be able to unsubscribe the commercial electronic message (“CEM”) if his or her computers are installed with the security settings that can block remotely-hosted images in messages that were received.

As far as the requirements for unsubscribe facility is concerned, section 9 of the UEMO provides inter alia that a person shall not send a CEM that has a Hong Kong link unless the message includes the unsubscribe facility. Section 2 of the UEMO defines, “electronic message” as a message includes a message in any form sent over a public telecommunications service to an electronic address and includes, but is not limited to—

(a) a text, voice, sound, image or video message; and
(b)a message combining text, voice, sound, images or video.

Thus, as far as sections 2 and 9 of the UEMO are concerned, they do not strictly prohibit any action of including an unsubscribe facility within an image. The law does not specifically require that all unsubscribe facilities have to be text based. Regarding the question whether the sender has contravened the provision of the Disability Discrimination Ordinance, you may wish to consult the Equal Opportunities Commission.

Thank you for your reply. Unfortunately, I feel that it does not address the multiple issues I raised.

You have over-simplified the issues by condensing them into a single "gist" that covers three separate points. I include those points from my previous email below, with further explanatory information and questions:

"In your reply, please address the following issues:

1. The SMTP email message delivered to my mail server did not include an unsubscribe facility, it only contained a link to an unsubscribe facility."

"I reiterate, sending a link is not the same as providing the linked information, in just the same way that telling you an ISBN is not the same as giving you a book. "

Let me remind you that, the message in question contained a link to an image of the text of the unsubscribe instructions. Thus, the message delivered to my mail gateway did NOT contain the unsubscribe instructions. If you contend that including a link to the instructions is equivalent to including the instructions, would you also contend that including a link to a link to a link to the instructions is equivalent? How far would you say this can be extended without making yourselves and the law look ridiculous?

I also note that, in your reply you state, "unless the message includes the unsubscribe facility". The message in question did not INCLUDE the facility.

"2. The linked facility provided was in the form of an image of text and therefore inaccessible to blind people. What does the Equal Opportunities Commissioner say about the accessibility of unsubscribe facilities?"

This is the only point that you actually addressed, and you merely suggested that I could contact the Equal Opportunities Commissioner. However, I am not blind, so I have no grounds to make a complaint under the Ordinance. If I did contact the Commissioner, and he replied that there was cause for concern, what use would the reply to me be? I am not authorised to be an intermediary between OFCA and the EOC. On the other hand, you are charged with the responsibility of correctly implementing the UEMO and, now that a member of the public (me) has raised this question, it would be responsible of you to contact the Commissioner for advice. Based on that advice, you could update your Guidelines for senders of messages. I think you should be pro-active in the discharge of your duties, do you disagree?

As a counter-example, what would your view be if a message contained a link to an image of Braille text of the unsubscribe instructions?

"3. As the UEMO requires the sender of a message to provide an unsubscribe facility, surely it is the sender's duty to ensure that the facility is provided to the recipient in the message, in a form that they can use. The sender should not assume anything beyond the facility to receive the basic protocol (in this case, SMTP) and understanding of Chinese or English."

I do not think you addressed this point. While the law does not specify that all unsubscribe facilities have to be text based, it is still the duty of the sender to PROVIDE the facility. If they do not have prior knowledge of the recipient's capabilities and equipment, they should not assume anything other than the the minimum for the communications medium.

I hope that you can provide a more reasonable answer to the points I have raised, without unjustified oversimplification.

We refer to your email dated 27 August 2012 and thank you for your comments. We however do not wish to comment further on your email regarding unsubscribe facility or hypothetical questions. Suffice to say here is that as and when we receive real case, report or complaint about accessibility of unsubscribe facilities, we will handle them, with the information and evidence provided by the complainant, in accordance with the relevant requirements stipulated in the UEMO.

Regarding the captioned report, we would like to reply as follows:

As explained in our previous letters, sections 2 and 9 of the UEMO do not prohibit the inclusion of an unsubscribe facility within an image, i.e. in this case, a web link associated with an image. Nor does the UEMO require that all unsubscribe facilities have to be text based. In fact, it has been a prevalent practice among the industry to include web links in email messages or other web contents for recipients to access the content at the receiving end. In this regard, senders of commercial email do not necessarily include unsubscribe facilities as simple text, but can also include text and web links as well. As shown in the complaint, the concerned sender had provided an unsubscribe facility when it sent out the concerned message.

While I would not go as far as to say that the use of web links in email messages for access to the message content is prevalent, I would agree that it is not uncommon, particularly among senders of unsolicited messages that wish to avoid blocking at gateways. However, I think that your reasoning is seriously flawed when you say that, because it exists, it must be permitted by the UEMO.

I think that such practises put unnecessary barriers to recipients unsubscribing and goes against the spirit of the UEMO, whether this is intentional or unintentional on the part of the senders. Furthermore, I think it can be argued that the practice is against the letter of the UEMO, because the SMTP message received by the recipient does not include the means to unsubscribe. I think it would be appropriate for you to update your guidelines to clarify your position on the practice.

I note in the footnote to your messages you say, "REMARK: This letter is intended for the use of the intended recipient(s) only. No unauthorized disclosure or use of this letter is permitted. If you are not the intended recipient(s), please notify us immediately and destroy this letter." Thank you for your permission for me, as the recipient, to use your letters. I have decided to use them as part of a public article on this case and the issues involved, that you can find in my company's newsletter: link to this article