Episode Two: Cold (and warm) calls in hot water - Hong Kong to launch statutory "Do-not-call" Register targeting P2P telemarketing

Following the completion of the public consultation on strengthening regulation of person-to-person telemarketing calls (P2P) in July 2017, the Commerce and Economic Development Bureau (Bureau) had recently submitted its report on the public consultation to the Legislative Council Panel on Information Technology and Broadcasting.

We have previously summarised the consultation paper in our article: Cold calls in hot water: Hong Kong consultation paper on P2P telemarketing (click here to read the article).

The public consultation paper, which was issued to the public and various bodies (including relevant industry stakeholders, District Council secretariats, and other relevant bodies such as the Consumer Council and the Office of the Privacy Commissioner for Personal Data), focused on gauging public views on whether regulation on P2P calls should be strengthened by statutory or non-statutory regimes. In particular, three options to enhance regulation of P2P telemarketing were proposed: improving trade specific self-regulatory regime, promoting the use of call-filtering applications in smartphones, and establishing a statutory "Do-not-call Register" (DNC Register).

Key Findings in the Public Consultation Report

  • A vast majority of 89% of individuals who put forward their views have expressed support towards legislative regulation of P2P telemarketing. Amongst these individuals, 86% are in favour of adopting a DNC Register. 
  • The Bureau proposes the establishment of a DNC Register which will be administered by the Office of the Privacy Commissioner for Personal Data. The Register will prohibit telemarketers from making P2P calls to phone numbers on the Register unless proven that the call recipients' prior consent has been obtained. 
  • The DNC Register is anticipated to include clear definitions of telemarketers and telemarketing, procedures for phone users to register or de-register their numbers, identification and suitable authorisation of the implementation agency, ways to make the Register available to telemarketers, handling of personal data and establishment of enforcement mechanisms and legal responsibilities. 
  • Suggestions on incorporating criminal liability sanctions will be further discussed with the Department of Justice during the law drafting process. Suggestions to assign designated telephone number prefixes to telemarketers and to operate sector-by-sector registers were rejected by the Bureau as these can be easily circumvented by telemarketers choosing to call from numbers without these prefixes or from overseas and that there are no clear delineations or definitions of most business/trade "sectors" in Hong Kong. 
  • There will be no differentiation between "warm calls" (calls whereby the caller from the company is able to identify the call recipient) and "cold calls" (calls generated from computer call machines whereby the caller does not know the recipient) under the statutory regime. However, the Bureau explains the more appropriate approach for telemarketers wishing to make "warm calls" is to obtain phone users' prior consent in receiving such "warm calls". 
  • Pending the introduction of the statutory bills on the DNC Register, the Bureau suggested non-statutory measures to alleviate interim concerns of the public regarding P2P telemarketing. These include enhancement of existing self-regulatory regimes, enhancement of call-filtering mobile applications and promoting public education on using call-filtering mobile applications. 
  • Provisions will be made to clearly define the scope of P2P calls to prevent important calls (e.g. from hospitals or important public service providers) be inadvertently caught by the statutory regime.

How will this impact the use of P2P telemarketing in Hong Kong?

The proposed DNC Register represents a shift in the legislative attitude and approach towards regulation of P2P telemarketing in Hong Kong and will help bring Hong Kong's regulation in this area in line with major jurisdictions around the world.

In fact, the operation of a DNC Register is not a new regulatory measure in Hong Kong. Under the Unsolicited Electronic Messages Ordinance (Cap. 593), since 2007 the Communications Authority had established three registers to regulate the sending of unsolicited fax, Short Messaging Service (SMS) messages and pre-recorded telephone calls.

Tighter regulation and compliance requirements are envisaged to apply, and also the possibility of imposing stricter penalties for non-compliance. Businesses engaged in the use of P2P telemarketing should be alert to on-going changes in legislative development on P2P telemarketing regulations and in particular on the establishment of the DNC Register. Businesses should also consider conducting reviews of their own telemarketing policies to determine how these impending legislative changes may affect their practices, and whether it will give rise to new or greater exposures.


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