First published: 24th April 2013
In a response to Yui Kee's Chief Consultant Allan Dyer's questions, reported in last month's newsletter, the Office of the Telecommunications Authority has clarified the meaning of sender, writing:
We note that you may like to know more about the meaning of "send" under the Unsolicited Electronic Messages Ordinance (UEMO), Section 4 of the UEMO will be of relevance. Section 4(1) of the UEMO stipulates that "send" includes cause to be sent and attempt to send. Section 4(2) stipulates that if an individual authorizes the sending of a commercial electronic message ("CEM") and he does so on behalf of an organization, then the organization shall be treated as authorizing the sending of the message; while the individual shall be treated as not authorizing the sending of the message. Section 4(3) of the UEMO further stipulates that if a CEM is sent by an individual or organization; and if the sending of the message is not authorized by any other individual or organization, the first-mentioned individual or organization shall be treated as authorizing the sending of the message.
In order to help the senders to have a better understanding of the regulatory framework under the UEMO as well as their responsibilities, we have posted the Information for the Industry in our website at http://www.ofca.gov.hk/en/industry_focus/uemo/index.html. Besides, Industry Guide is also available at http://www.ofca.gov.hk/filemanager/ofca/common/uemo/uemo_industry_guide_e.pdf. Senders are always reminded to read the legislation in its entirety and consider seeking independent legal advice where necessary, so as to decide whether their practices are within the scope of the legislation or not, and how to comply with the law. To enforce the UEMO and ensure its compliance, we encourage the public to lodge reports with us in case of any suspected contravention of the UEMO.
Dyer said, "I leave it to readers of this newsletter to decide whether this is a clear and unequivocal answer to the questions I raised, that is, has OFCA clearly communicated these responsibilities to Hong Kong organisations and does OFCA have any system to detect when companies are not fully complying with the transitive nature of unsubscribes?"