Unsolicited Electronic Messages Regulation
(Enacting provision omitted—E.R. 2 of 2012)
[22 December 2007] L.N. 202 of 2007
(Format changes—E.R. 2 of 2012)
(Omitted as spent—E.R. 2 of 2012)
This Regulation is made for the purposes of paragraph (c) of subsection (1) of section 8 and paragraphs (c) and (d) of subsection (1) of section 9 of the Ordinance and supplements the rules for the sending of commercial electronic messages set out in those sections.
In this Regulation, unless the context otherwise requires—
address (地址), in relation to an individual or organization, means the address of his or its usual place of business, but does not include a postal box address; calling line identification information (來電線路識別資料) has the meaning assigned to it by section 13(2) of the Ordinance; commercial electronic message (商業電子訊息), in relation to an SMS message, includes the main text and any displayable information attached to the message transmitted to the recipient; identity document (身分證明文件), in relation to an individual, means any valid document that is issued for the purpose of establishing the identity, nationality and domicile or place of abode or permanent residence of the holder of the document and that is officially issued to him according to the laws of the country or territory by or on behalf of which it is issued; name (名稱), in relation to an organization, includes the name under which the business of that organization is carried on and also includes—(a)any registered trade mark that contains or consists of that name; and(b)any abbreviation of that name that reasonably identifies that organization; registered trade mark (註冊商標) means a trade mark registered under the Trade Marks Ordinance (Cap. 559); SMS message (短訊) means a text message using the short message service as defined in the Global System for Mobile Communications (GSM) or any similar short message service; unsubscribe facility (取消接收選項) has the same meaning as in section 9 of the Ordinance; unsubscribe facility statement (取消接收選項陳述) means the statement required to be included in a commercial electronic message under section 9(1)(a) of the Ordinance.For the purposes of this Regulation, a company within the meaning assigned by section 2(1) of the Companies Ordinance (Cap. 622) is deemed to have its usual place of business at its registered office in Hong Kong, and any other organization is deemed to have a usual place of business at its principal office or any other place at which it carries on business. (28 of 2012 ss. 912 & 920)
This Regulation applies to a person who sends a commercial electronic message that has a Hong Kong link.
A commercial electronic message sent by electronic mail transmission must include—
the name of the individual or organization who authorized the sending of the message;
the address of that individual or organization;
a telephone number at which that individual or organization may be contacted; and
an electronic mail address at which that individual or organization may be contacted.
A commercial electronic message sent by any other means of transmission must include—
the name of the individual or organization who authorized the sending of the message;
subject to subsection (4), the address of that individual or organization; and
a telephone number at which that individual or organization may be contacted.
If the commercial electronic message is authorized to be sent by an individual, the name of the individual included in the message under subsection (1)(a) or (2)(a) must be the individual’s name as shown on his identity document.
If the commercial electronic message is an SMS message, the address of the individual or organization required under subsection (2)(b) may be omitted from the message if the recipient is able to obtain the address by using the telephone number included in the message under subsection (2)(c).
If the commercial electronic message is sent from an electronic address that is a telephone number or facsimile number, the message must include the information required by this section notwithstanding that the calling line identification information of the sending number may contain the same information.
Subject to subsections (2), (3) and (4), the information required to be included in a commercial electronic message under section 5 must be given in both Chinese and English.
The information required to be included in a commercial electronic message under section 5 may be given in any language if—
the recipient of the message has indicated to the sender or the individual or organization who authorized the sending of the message that the information may be given in that language;
the sender or the individual or organization who authorized the sending of the message knows or reasonably believes that the person to whom the message is sent is an individual who—
resides outside Hong Kong; and
uses or is able to communicate in that language; or
the sender or the individual or organization who authorized the sending of the message knows or reasonably believes that the person to whom the message is sent is an organization that—
is not carrying on business or activities in Hong Kong; and
uses or is able to communicate in that language. (L.N. 225 of 2007)
The name of the individual or organization who authorized the sending of the commercial electronic message may be given—
solely in Chinese, if the individual or organization has a Chinese name only; or
solely in English, if the individual or organization has an English name only.
The address of the individual or organization who authorized the sending of the commercial electronic message may be given—
solely in Chinese, if the address is in Chinese only; or
solely in English, if the address is in English only.
Subject to subsection (2), the unsubscribe facility statement must be given in both Chinese and English.
The unsubscribe facility statement may be given in any language if, in relation to the commercial electronic message concerned—
the recipient of the message has indicated to the sender or the individual or organization who authorized the sending of the message that the statement may be given in that language;
the sender or the individual or organization who authorized the sending of the message knows or reasonably believes that the person to whom the message is sent is an individual who—
resides outside Hong Kong; and
uses or is able to communicate in that language; or
the sender or the individual or organization who authorized the sending of the message knows or reasonably believes that the person to whom the message is sent is an organization that—
is not carrying on business or activities in Hong Kong; and
uses or is able to communicate in that language. (L.N. 225 of 2007)
This section applies to a commercial electronic message that is in the form of a voice, sound, image or video message (or a message combining voice, sound, images or video) and is sent to a telephone number.
The information required to be included in the commercial electronic message under section 5 and the unsubscribe facility statement must be presented at the beginning of the message in a clear and conspicuous manner and in the following order—
first, the name of the individual or organization who authorized the sending of the message;
secondly, the unsubscribe facility statement; and
thirdly, any other information required to be included in the message under section 5.
Subsection (2) does not apply if the following conditions are met—
the commercial electronic message provides a facility by which the recipient may enter a key input specified in the message to immediately request to be provided with the address of the individual or organization who authorized the sending of the message and a telephone number at which that individual or organization may be contacted;
the facility referred to in paragraph (a) is accessible to the recipient at all times during the transmission of the message; and
the name of that individual or organization, the specified key input referred to in paragraph (a) and the unsubscribe facility statement are presented at the beginning of the message in a clear and conspicuous manner and in the following order—
first, the name of that individual or organization;
secondly, the unsubscribe facility statement; and
thirdly, the specified key input.
Subject to subsection (2), the unsubscribe facility specified in a commercial electronic message in compliance with section 9(1)(a) of the Ordinance (or, if more than one unsubscribe facility is so specified, at least one of them) must be capable of receiving an unsubscribe request transmitted from the telecommunications device that is used by the recipient to access the message.
If the commercial electronic message is an SMS message, the unsubscribe facility specified in the message (or, if more than one unsubscribe facility is specified in the message, at least one of them) must be in the form of a telephone number assigned by the Authority with which unsubscribe requests may be made orally or by entering key inputs.
Every unsubscribe facility specified in a commercial electronic message—
must be convenient to use;
must be readily available for use by the recipient of the message; and
must not itself contain a commercial electronic message.