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Regulation of person-to-person telemarketing calls
2014-10-22

Following is a question by the Hon Charles Peter Mok and a written reply by the Secretary for Commerce and Economic Development, Mr Gregory So, in the Legislative Council today (October 22):

Question:

The Unsolicited Electronic Messages Ordinance (Cap. 593), which has been fully implemented since December 2007, provides for the regulation of the sending of commercial electronic messages, but it does not cover person-to-person telemarketing calls. The Do-not-call Registers administered by the Office of the Communications Authority (OFCA) allow members of the public to register their fax or telephone numbers to unsubscribe from commercial electronic messages. In August this year, the Office of the Privacy Commissioner for Personal Data (OPCPD) and the Commerce and Economic Development Bureau (CEDB) gave different views on the regulation of person-to-person telemarketing calls. OPCPD holds that Cap. 593 should be amended to the effect that in addition to the existing Do-not-call Registers, a Do-not-call Register for Person-to-person Telemarketing Calls should also be established, while CEDB is of the view that such telemarketing calls involve personal data, and members of the public have already been empowered by the existing Personal Data (Privacy) Ordinance (Cap. 486) to protect their personal data. However, the Privacy Commissioner for Personal Data (PCPD) has pointed out in his blog that, according to the results of a public opinion poll conducted by OPCPD in 2014, the majority of the person-to-person telemarketing calls are cold calls that do not involve the use of personal data, and therefore are not subject to the regulation of Cap. 486. PCPD has also remarked that, reading between the lines of the letter from CEDB to OPCPD, he gathers that it is CEDB’s view that the proposed register should be set up under Cap. 486 and the related matters should therefore be followed up by the Constitutional and Mainland Affairs Bureau. Yet, PCPD considers that if the registers concerned are to be administered by two different regulatory organisations, the public will find the arrangement confusing and less than customer-friendly. In this connection, will the Government inform this Council:

(1) whether it will consider afresh regulating person-to-person telemarketing calls; if it will, of the details; if not, the reasons for that, as well as how the authorities will seriously address the problem of such calls causing nuisance to the public;

(2) whether it has plans to amend Cap. 593 to establish a Do-not-call Register for Person-to-person Telemarketing Calls with OFCA administering the Register together with other Do-not-call Registers currently under its administration; and

(3) whether it has considered establishing a registration and regulatory regime for telemarketing call centres in order to crack down on local telemarketing call centres which contravene the regulations, and requiring such centres to use telephone lines bearing designated first few digits to make telemarketing calls, so as to facilitate the public to identify calls made from these centres; if it has, of the details?

Reply:

President,

The Unsolicited Electronic Messages Ordinance (UEMO) (Cap. 593) came into full operation in December 2007. It regulates the sending of commercial electronic messages, including pre-recorded phone messages, short messages, fax messages, emails, etc.

At present, the UEMO does not cover person-to-person telemarketing calls (P2P calls) mainly because most business enterprises in Hong Kong are small and medium enterprises (SMEs) which rely on electronic communications as a means of marketing. As such, when the Government formulated the UEMO, P2P calls were excluded from the regulatory ambit to avoid affecting the development of normal electronic marketing activities.

Nonetheless, to minimise the nuisance caused to the public by marketing calls, the Government has since end 2010 actively encouraged the trade associations of the four sectors (Note) (finance, insurance, telecommunications and call centres) to draw up and issue their respective codes of practice on P2P calls (industry codes) and to encourage the industries concerned to adopt the best practice recommended in their industry codes in making P2P calls. Since June 2011, the four trade associations have already joined the self-regulatory scheme on P2P calls, and such calls made by members of these trade associations are regulated by their industry codes.

The issue in relation to P2P calls is complicated. According to the survey conducted with the instruction of the Office of the Privacy Commissioner on Personal Data, more than half of the respondents indicated that half or more than half of the marketing calls they had received involved the use of personal data, hence showing that the issue involved the protection of personal data to a large extent. Although the Personal Data (Privacy) (Amendment) Ordinance 2012 already regulates the use of personal data in marketing stringently, the survey results revealed that the use of personal data in P2P calls was still very common.

In this regard, we have pointed out to the Privacy Commissioner on Personal Data that the Commissioner might consider reviewing the protection coverage of the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO) and related enforcement work, and studying whether there was a need to further improve the PDPO so as to solve the various problems that were highlighted by the survey results in relation to the use of personal data in P2P calls. Such deliberations would include considering establishing a do-not-call register for P2P calls under the PDPO with a view to further protecting personal data. Our aim was only to point out the complexity of the problem and diversity of possible solutions in order to identify the crux of the problem for targeted solutions.

(1) and (2) The Government has been adopting an open-minded approach towards the suggestion of strengthening the regulation of P2P calls. Nonetheless, since the suggestion would have an impact on the employment and livelihood of tens of thousands of persons who are engaged in conducting legitimate telemarketing activities, and most enterprises (especially SMEs) have facilitated commercial transactions through related legitimate telemarketing activities, in considering any way forward for tightening the regulation of P2P calls, careful and thorough considerations must be made.

Before considering whether to formulate any way forward for strengthening the regulation of P2P calls, the Government will continue to closely monitor the situation of P2P calls.

(3) With respect to the measures for regulating P2P calls referred to in the question, we have the following preliminary observations:

(a) For the suggestion to establish a registration and regulatory regime for telemarketing call centres, since callers making calls concerning other businesses or related matters may also touch upon the marketing of their products or services during the phone conversations, there will be difficulties in delineating what constitute a “telemarketing call” and a “telemarketing call centre”. In addition, substantial manpower resources may be required if it is necessary to verify whether individual telemarketing calls have contravened the regulations.

(b) As for the suggestion to assign telephone numbers of designated prefixes for the purpose of P2P calls, it should be noted that the present eight-digit numbering plan is already heavily utilised. If the Communications Authority was to reserve specific blocks of numbers with designated prefixes for P2P calls, it would adversely affect the efficiency in the use of the existing eight-digit numbering plan as some numbers could not be freely allocated to end users. It may also thereby shorten the life span of the existing eight-digit numbering plan and potentially require an earlier migration to a new numbering plan with more digits, resulting in significant inconvenience to the community.

As mentioned above, the Government adopts an open-minded approach towards the suggestion of strengthening the regulation of P2P calls. We will continue to closely monitor the situation of P2P calls, and from time to time review as to whether and how to strengthen the regulation of P2P calls.

Note: The Office of the Communications Authority appointed a firm to carry out public opinion surveys to collect views from the industry in order to assess the impact of P2P calls to the public. Results of the surveys revealed that over 90% of P2P calls had been made by the four sectors of finance, insurance, telecommunications and call centres.
Ends/Wednesday, October 22, 2014
Issued at HKT 15:23

Office Of Hon. Charles Mok, Legislative Councillor (IT)