First published: 19th March 2013
Online retail company Groupon Australia Pty Ltd has been formally warned by the Australian Communications and Media Authority (ACMA) for misleading practices in sending email newsletters to subscribers. If Groupon fails to comply, the ACMA can fine it up to Australian $1 million (over $8 million HKD) per day.
Individuals who provided an email address to Groupon were subscribed to multiple newsletters, but, if they tried to unsubscribe, they would be removed from only one of the lists. The ACMA was of the opinion that it is not "informed consent" if it is unclear what individuals are signing up to and that it was reasonable for individuals to expect they would be unsubscribed from all newsletters unless they were advised otherwise. The ACMA also found that some unsubscribe requests were not acted on within the statutory 5 days.
Yui Kee's Chief Consultant Allan Dyer reflected on the situation in Hong Kong, "Some Hong Kong-based mailing lists appear to share a common infrastructure, based on the mail headers and unsubscribe links, but there is no transparency about the organisations behind them, or how address lists are shared. It might be easy for a Hong Kong email marketer to continue to send messages to an address while appearing to comply with Hong Kong's anti-spam law."
With this in mind, Yui Kee contacted the Office of the Communications Authority (OFCA) with these questions:
At the time of writing, no response has been received from OFCA.
Updated: 27th March 2013
OFCA has provided a detailed reply, first emphasising that OFCA's enforcement powers are limited to commercial messages with a Hong Kong link; the full Ordinance is available at the Government Logistics Department website. OFCA continued:
As refer to the article provided in your email, please be informed that the practice is not applicable to Hong Kong as the unsubscribe request under section 9(4) of the UEMO is sender based. Under the UEMO, Hong Kong has adopted an opt-out regime under which senders are not required to get prior consent from the recipients before the sending of CEMs. Having said that, senders are required to comply with the requirements of the UEMO when sending CEMs in particular the rules stipulated in Part 2 of the UEMO. Section 9 of the UEMO stipulates that CEMs must contain unsubscribe facility and subsection (4)(a) defines "unsubscirbe request" as a message to the effect that the registered user of the electronic address to which the message is sent does not wish to receive, at that electronic address, any further commercial electronic messages from or authorized by that individual or organization. Section 10 of the UEMO further stipulates that CEMs must not be sent after unsubscribe request is sent by using the designated unsubscribe facility provided in the message, subsections (2)(a) and (b) also state that the individual or organization shall cease sending or authorizing the sending of any CEMs to that electronic address in respect of which the unsubscribe request was sent within 10 working days.
As the UEMO adopts a different approach in the regulation on the sending of commercial emails, we do not maintain any system to detect the practice under your mentioned criteria, nor do we have any statistics in this respect. If you are interested in our enforcement statistics, you may visit our website at http://www.ofca.gov.hk/en/media_focus/data_statistics/figures/index.html.
Since the commencement of the UEMO in December 2008, OFCA (and its predecessor, OFTA) have issued 525 warning letters, 17 enforcement notices and zero prosecutions.
Dyer asked for further clarification:
You state that unsubscribe requests under the UEMO are sender based. I would like to clarify the full meaning of sender because it has a direct and important consequence for marketing companies in Hong Kong. You state that an unsubscribe request is a message to the effect that the recipient does not want to receive further messages, "from or authorized by that individual or organization". From this, it appears that the originator of a message and the agent authorised to actually send the message on their behalf are both covered by a single unsubscribe request.
This has various consequences, which it will be easier to discuss with an example. Suppose company A specialises in providing email marketing services, and they work for three clients X, Y and Z who wish to promote their different products. Client X authorises A to send me a message, and I reply to A with an unsubscribe request. Then:
As I noted in the article, some Hong Kong-based mailing lists appear to share a common infrastructure, so my example is directly relevant to those agents.
