ISE06/15-16

• In Hong Kong, while unsolicited pre-recorded telephone messages are regulated by the Unsolicited Electronic Messages Ordinance (Cap. 593), person-to-person telemarketing calls ("P2P calls") are excluded from the regulatory ambit in order to avoid affecting the development of normal electronic marketing activities.^{1Legend symbol denoting Reply by the Secretary for Commerce and Economic Development to a question raised at the Council meeting of 20 November 2014. The Unsolicited Electronic Messages Ordinance came into operation in 2007. The Ordinance regulates the sending of unsolicited commercial electronic messages, which cover pre-recorded phone messages, short messages, and fax messages. People who do not want to receive these commercial electronic messages can unsubscribe by registering their telephone numbers with the Do-Not-Call Registers administered by the Office of the Communications Authority. Unless consent has been given by the user of the telephone or fax number, an organization is prohibited from sending unsolicited commercial electronic messages to any telephone or fax number registered on the Do-Not-Call Registers. P2P calls are however not covered.} However, the findings of a survey commissioned by the Office of the Privacy Commissioner for Personal Data in 2014 revealed that there had been a growing preponderance of P2P calls, with more people responding negatively to the calls and fewer people reporting any gains from the calls. It triggers concerns whether P2P calls should also be subject to regulation, like establishing a "do-not-call register" for P2P calls. These concerns have been discussed at the Legislative Council meetings and meetings of the Panel on Information Technology and Broadcasting on several occasions in recent years.^{2Legend symbol denoting See Legislative Council Secretariat (2009), GovHK (2014a), GovHK (2014b), and Commerce and Economic Development Bureau (2015).}
• The Government cautions that mandatory regulation of P2P calls may adversely affect normal electronic marketing activities of small to medium-sized enterprises and the livelihood of some 20 000 employees engaged in such business. In this connection, it encourages trade associations of four major sectors (i.e. finance, insurance, telecommunications and call centres) to draw up codes of practice for self-regulation. Yet, the Government has recently declared that it maintains an open mind towards the suggestion of strengthening the regulation of P2P calls. Meanwhile, it has commissioned a consultancy study on P2P calls. The study findings are scheduled for release in the first quarter of 2016.
• Over the past decade or so, many overseas places have progressively regulated P2P calls through the establishment of "do-not-call registers". For instance, the United Kingdom ("UK") introduced such a register in 1999, while Canada and Singapore did so in 2008 and 2014 respectively. This issue of Essentials provides an overview of the development of the regulation of P2P calls in these three places.

Regulation in the United Kingdom

• The UK government regulates unsolicited marketing calls through the enactment of the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECR")^{3Legend symbol denoting PECR replaced the former Telecommunications (Data Protection and Privacy) Regulations 1999 which governed the regulation of P2P calls in the past.}, complementing the existing Data Protection Act by setting out specific provisions to restrict unsolicited marketing by phone, fax, e-mail, or other electronic messages. More specifically in section 21, it prohibits organizations from sending unsolicited P2P calls to:
  
  

  (a)

  anyone who has indicated that they do not wish to receive such calls; or

  (b)

  any home/mobile telephone number registered in the Telephone Preference Service ("TPS")4Legend symbol denoting Companies and corporate bodies which do not want to receive business-to-business telemarketing calls can register their numbers with another central register, namely Corporate Telephone Preference Service., an opt-out register which is free of charge, unless the user has specifically given consent.

• All organizations in the UK (including registered charities, voluntary groups and political parties) conducting telemarketing calls are obliged by law to first screen their call lists against TPS and their internal do-not-call lists. People making such P2P calls are also required to provide their names on the phone and contact details upon request. The Information Commissioner's Office ("ICO") is the regulatory authority over unsolicited marketing calls. Any violation is subject to a fine of up to £500,000 (HK$5.89 million).
• By November 2015, there were over 21.5 million telephone numbers registered on TPS. According to a survey conducted in 2014, people who had registered their telephone numbers with TPS experienced an average reduction of 31% in P2P calls per month, showing the effectiveness of the "do-not-call register".^{5Legend symbol denoting See Information Commissioner's Office (2014).} Some respondents reported that they were completely free of telemarketing calls after registration.
• That said, the TPS register cannot entirely stamp out unsolicited marketing calls in the UK, possibly due to a few implementation issues. First, calls conducted in the name of market research are not subject to regulation. Secondly, call recipients usually cannot provide the exact identity of the P2P callers, creating enforcement difficulties. Thirdly, ICO was required to prove that such P2P calls caused "substantial damage or substantial distress" to recipients before legislative amendments in April 2015, creating a high legal threshold in enforcement. As such, over the past three years between January 2012 and February 2015, only nine companies had been charged for "nuisance calls and text messages", with total fines of £815,000 (HK$9.6 million).
• Against this backdrop, complaints on "nuisance calls and text messages" lodged to ICO had increased by twenty-fold within two years, from 7 526 in 2011-2012 to 161 720 in 2013-2014. In response, the UK government launched a consultation exercise in October 2014, aiming to lower or even remove the legal threshold of causing "substantial damage or substantial distress" in enforcement. With the vast majority of views preferring to remove the legal threshold in its entirety, the UK government amended the legislation in April 2015 accordingly. At present, ICO is only required to prove that the company concerned has committed a serious breach of PECR, which makes enforcement action easier than before.

Regulation in Canada

• In 2008, the Canadian Radio-television and Telecommunications Commission stipulated the Unsolicited Telecommunications Rules, aiming to protect the privacy of people and to prevent undue inconvenience and nuisance of unsolicited telecommunications. For regulation of P2P calls, two parts of the Rules are relevant, namely (a) the National Do Not Call List ("National DNCL") Rules; and (b) Telemarketing Rules.
• More specifically on the National DNCL Rules, it allows people who do not want to receive P2P calls to register their telephone numbers. Telemarketers who make telemarketing calls on their own behalf or on behalf of their clients are prohibited from calling the numbers registered on National NDCL, unless express consent is obtained from the user of the telephone number.
• However, there are exemptions in the application of the National DNCL Rules. First, they do not apply to calls made by registered charities, political parties and calls made for the purpose of market research. Secondly, the Rules exempt telemarketing calls made by organizations to consumers having an existing business relationship with them. For instance, P2P calls can be made to a consumer having purchased the service/product in the past 18 months or having made an inquiry on the service/product in the past six months. As such, registration with National NDCL will not eliminate all P2P calls.
• As to the Telemarketing Rules, telemarketers are required to register with the operator of National DNCL, Bell Canada. If they are making calls on behalf of their clients, it is the clients' responsibility to register. Similar to the UK, telemarketers are required to check against the National DNCL and their own do-not-call lists first. In addition, the Rules lay down the manner requirements in conducting telemarketing communications, such as identifying on whose behalf to make the call at the beginning of the call and giving the contact details upon request. Moreover, telemarketers can only call within specific calling hours, i.e. between 9:00 am and 9:30 pm on weekdays, and between 10:00 am and 6:00 pm on weekends.
• Since its launch in 2008, there have been altogether 12.8 million telephone numbers registered under the National DNCL. However, user feedback is mixed, partly due to aforementioned exemptions to P2P calls, resulting in over 116 000 complaints on unsolicited and illegitimate telemarketing calls in 2014. To enhance the effectiveness of National DNCL, the Canadian government has launched a public consultation exercise during July-October 2015, seeking public views on better management of P2P calls. The Canadian government is yet to announce the results of the consultation.

Regulation in Singapore

• In the past, the Singapore government relied on self-discipline of the telemarketing industry in P2P calls. In this regard, the telemarketing association Contact Centre Association of Singapore issued the telemarketing guidelines for the financial industry for its member organizations on the one hand, and set up do-not-call lists to let consumers opt out if they did not wish to receive telemarketing calls from them on the other. Some other sectors such as estate agents had also made available similar telemarketing guidelines. Yet this self-regulatory approach could not meet consumer expectations, precipitating the Singapore government to introduce new legislation to tackle the issue in recent years.
• While the Singapore government recognized that the establishment of a "do-not-call register" would place administrative burden and costs on the organizations involved in telemarketing activities, it also held the view that such a central registry could assist the organizations concerned to effectively target those consumers who might have more interest in receiving information on their products/services on the one hand, and save their marketing resources on those who did not want to be disturbed on the other.
• The Personal Data Protection Act was enacted in 2012 and came into effect in 2013, providing for the establishment of a national database, Do Not Call ("DNC") Registry. The Registry consists of three sub-registers, namely (a) No Voice Call Register; (b) No Text Message Register; and (c) No Fax Message Register operated by the Personal Data Protection Commission.
• The DNC Registry came into effect on 2 January 2014^{6Legend symbol denoting The DNC Registry was opened for registration on 2 December 2013, one month earlier than its official launch.}, providing people with a convenient way to opt out of marketing messages. Unless express consent is obtained, all organizations must not send P2P calls to the numbers registered with the No Voice Call Register, with the exception of messages on charitable or religious purpose.
• Under the Personal Data Protection Act, telemarketers in Singapore are also required to provide clear and accurate information about the identity of the individual/organization and how the person being called can readily contact the individual/organization. As of end-November 2015, there were over 840 000 telephone numbers registered with the DNC Registry. According to a consumer survey conducted by the Personal Data Protection Commission in early 2015, consumers' feedback on the DNC Registry was positive overall. About 86% of those who had registered their phone numbers with the DNC Registry experienced a reduction in the number of telemarketing messages received over the past year.^{7Legend symbol denoting See Personal Data Protection Commission (2015a).}

Prepared by Tiffany NG
Research Office
Information Services Division
Legislative Council Secretariat
9 December 2015