My company outsources the electronic marketing to an agency. Is my company liable if the agency used the address-harvesting software for sending commercial electronic messages without the consent of recipients?

Ans: In a principal-agent relationship (as exists between your company and an outsourced service provider), any act done or conduct engaged in by the agent will be treated for the purposes of the UEMO as done or engaged in by the principal.

However, it is a defence for the principal to prove that he took such steps as were practicable to prevent the agent from doing the act or engaging in the conduct. As such, the company which outsources the electronic marketing to a third party should check with the agent that the address lists are not, or would not be prepared through the use of address-harvesting software and would fully comply with the requirements of the UEMO. If the agent could not give a confirmation that the address lists are prepared in full compliance with the UEMO, your company should avoid using such address lists of unknown origin.

I am running a non-governmental organisation (NGO) which aims to promote the well-being of the people living in our district. We intend to use electronic channels such as emails and fax to promote a free travel tour for inhabitants. We do not aim to earn any profit from the activity. As our tour is not commercial in nature, are the promotional messages not regulated by the UEMO?

Ans: 'Commercial electronic message' is defined as an electronic message to offer, advertise, or promote goods, services, facilities, land, business or investment opportunities, or their suppliers or providers, in the course of or in the furtherance of any business.

Although the organisation does not intend to earn a profit for holding the free travel tour, the promotional messages may still fall within the ambit of the UEMO. In other words, electronic messages offering or promoting a service which could be obtained by the recipient or a facility of your organisation which could be used by the recipient, or promoting your own organisation (if your organisation could be considered a supplier or prospective supplier of goods, services or facilities etc.) would be considered as 'commercial electronic messages' under the UEMO.

If my company is using electronic messages to promote products, what do I need to do to comply with Parts 3 and 4 of the Ordinance?

Ans: You should not use unscrupulous techniques to reach out more recipients. For example, you should not:

1. supply, acquire or use address-harvesting software and/or harvested-address lists for the purpose of sending commercial electronic messages;
2. use any automated means to generate electronic addresses and send out commercial electronic messages to such electronic addresses;
3. use scripts or other automated means to create multiple email accounts unless you are doing it to perform administration function of an information system in the capacity as a system administrators or a telecommunications service provider; and
4. use open relay or open proxy to send commercial electronic messages

These offences would be prosecuted in court and subject to a fine up to $100,000 and imprisonment up to 2 years (no imprisonment term for offences relating to address-harvesting) on summary conviction, or a fine up to $1,000,000 and imprisonment for up to 5 years on conviction on indictment.

Moreover, you have to ensure that your company is not engaging in fraud or other illicit activities related to the sending of multiple commercial electronic messages. You shall not:

1. hack into a computer for the purpose of sending multiple commercial electronic messages;
2. use devices without authorization and sending multiple commercial electronic messages;
3. falsify header information in multiple commercial electronic messages;
4. use false identity to register for electronic addresses or domain names and sending multiple electronic messages; and
5. falsely represent oneself to be the registrants of electronic addresses or domain names and sending multiple electronic messages.

Given their seriousness in nature, a heavier penalty will be imposed the above offences, i.e. a fine of any amount to be determined by the court and imprisonment of up to 10 years.

What are the rules of sending commercial electronic messages?

Ans: According to part 2 of the UEMO, senders are required to follow the rules of sending commercial electronic messages, including:

1. identify oneself and provide contact information;
2. offer a way for recipients to unsubscribe from receiving future messages and honour such requests within 10 working days;
3. not send commercial electronic messages to recipients registered in the do-not-call registers unless consent has been given by the recipients to receive those messages;
4. not send out email messages with misleading subjects; and
5. not hide the calling line identification (CLI) when sending messages to telephones.

For details of the rules, please refer to Chapter 4 of the Guide for the Industry.