Keeping the heat on cold (and warm) calls – new proposed law to restrict direct person-to-person telemarketing calls in Hong Kong

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Hogan Lovells

[co-author: Christy Tsui]*

On 9 April 2019, the Hong Kong Commerce and Economic Development Bureau (CEDB) announced a plan to amend the Unsolicited Electronic Messages Ordinance (UEMO) to extend the regulatory framework to cover direct person-to-person telemarketing (P2P) calls, including by establishing a new do-not-call register (DNC Register), and imposing fines and imprisonment on violators. The Bureau is currently discussing the proposal with the Department of Justice and the Legislative Council. The specific timetable for the proposed legislative amendments is yet to be announced.

We have previously discussed the consultation developments in relation to P2P calls in the following articles:

Key proposed changes to UEMO

  • Under the current UEMO, members of the public can opt-out from unsolicited fax, short messaging service (SMS) messages and pre-recorded telephone calls by registering their numbers on the three respective DNC Registers. Under the proposed legislative amendments, an additional DNC Register will be set up to cover P2P calls by real persons.
  • Telemarketers are prohibited from calling the numbers on the new DNC Register.
  • After a request to unsubscribe from P2P calls has been made, telemarketers will have to stop dialing the registered number within 10 working days, and make sure that the request made is recorded for at least three years.
  • P2P callers cannot hide their numbers and will need to provide accurate information, including who they are representing or the organisation authorising the call.
  • The law enforcement authority will issue an enforcement notice when it considers a contravention has taken place and is likely to continue or, be repeated, and require the violators to take remedial actions. If the telemarketers fail to comply with such a notice, they will face a maximum fine of HK$100,000 for the first conviction, and a maximum HK$500,000 fine for subsequent convictions.
  • The telemarketers who use telephone number harvesting software and make P2P calls to numbers obtained through automated means will face stiffer penalties – a maximum penalty of HK$1 million and five years imprisonment. 

How will this impact telemarketing in Hong Kong?

The proposed changes to UEMO show the government's determination in controlling telemarketing calls.

One potential impact of the proposed changes is that the businesses using P2P telemarketing might have to explore alternative ways of marketing.

Another potential impact is that businesses would need to further review the way in which they use  personal data to conduct telemarketing. More importantly, businesses need to, have a mechanism to ensure that telemarketing activities comply with both the direct marketing regime under the Personal Data (Privacy) Ordinance and the new DNC Register under the proposed changes to UEMO. From our experience, having a central, coordinated and easy-to-update database to capture records of consent/opt-out indications can be key to achieve compliance with these relevant laws.

 

*Trainee Solicitor, Hong Kong

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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