Direct Marketing and Privacy Related to Personal Data (cont.)

Direct Marketing

Direct marketing is a booming business on a global basis, and Hong Kong is no exception. While the Hong Kong consumers are given, and many welcome the opportunities to choose a wide variety of services and products through direct marketing channels, there are also increasing negative sentiments regarding the invasion of privacy by "unsolicited personally addressed" mail, fax and phone messages.

There is a provision (Section 34) in the Ordinance which specifically relates to direct marketing. In essence, it requires a direct marketer to provide an opt-out clause in the direct marketing message the first time an individual is contacted, and to cease further contact with the individual if the individual chooses to opt-out.

The Commissioner is vested with the power to issue and approve codes of practice for data users for the purpose of providing practical guidance in respect of requirements under the Ordinance. Except in special circumstances, usually a relevant code of practice is developed by the recognised representative or regulatory body of a profession or industry sector, through consultation with its members and with our Office. A good example is the Hong Kong Direct Marketing Association which has developed, in consultation with our Office, "a Code of Practice for the Use of Personal Data in Direct Marketing" for its members to comply with the requirements of the Ordinance.

Complaints Related to Direct Marketing

As at the end of May 1998, 17 months since the commencement of the Ordinance, 374 complaints have been received by our Office and broadly broken down as follows:

49 complaints (19%) of the 253 complaints against private sector organisations are related to direct marketing, mainly on the absence of the opt-out message, and further contacts with individuals after they have chosen to opt-out. A high percentage of these direct marketing-related complaints are concerned with cold-calls by telephone, particularly by real-estate agents. After discussion with the representative associations of the real estate agencies, our Office issued in November 1997 a "Guidelines on Cold-Calling" emphasising the need to provide an opt-out message during cold-calls, and to effectively maintain an opt-out list to avoid contravention of the Ordinance.

Public Registers as a Data Source for Direct Marketing

It is recognised that there is a persistent and growing tension in the community regarding the use of publicly available personal information in direct marketing.

While there is no legal definition of "Public Registers" in Hong Kong, in general, they are understood to be records kept by government departments of various "public activities" data of which can be made available to the public usually for a fee. Prominent examples include:

• The Register of Vehicles
• The Land Register
• The Register of Marriages
• The Companies Register

The traditional approach in drafting laws to establish these registers is to state merely that certain documents or information shall appear on a public register and available for public disclosure. In general, there was little consideration on the privacy of personal data. This leads to a host of privacy problems and public concern. These concerns include:

1. whether there is a statement of purpose related to data collection in the relevant Ordinance which creates the Register;
2. whether there is excessive collection of personal data related to the explicit or implicit purposes of collection;
3. whether there is excessive disclosure of personal data in satisfying the legitimate public searches;
4. whether there is control on the subsequent use of the information obtained from the registers; and
5. the use of data obtained from the registers for direct marketing purposes.

While some hold the view that privacy should not be considered as an issue for personal data which are publicly available, there are two major concerns with this view:

1. Law
   Information from public register is publicly available for certain intended purposes, e.g. marriage notifications containing personal data are exhibited for the purpose of enabling legitimate objections to be made to the impending marriages. To use such personal data for direct marketing can be construed as a change of purpose and, without prescribed consent from the parties concerned, such an action is likely to be in breach of Principle 3 of the data protection principles of the Ordinance.
2. Public sentiments
   In the latest public opinion survey on privacy conducted in Hong Kong in March 1998, in responding to the question "will current practices cause privacy problems" in relation to the use of the Registers of Vehicles, Land Register and the Register of Marriages, the corresponding answers are 7.9, 7.9 and 7.2 for the respective registers on a scale of 0 - 10 (where 0:no problem at all, 10:very serious problems). The considerable concern shown are related to direct marketing, e.g. mail campaign by marriage services companies or cold calls to property owners by real estate agencies.

In furtherance of personal data protection for the community, various actions should be considered including:

1. amending the various Ordinances which allow access to information held in relevant public registers by the public, to take into account the requirements of the Personal Data (Privacy) Ordinance;
2. amending the Personal Data (Privacy) Ordinance to include specific provisions on public registers;
3. introducing a generic public registers ordinance governing the establishment, maintenance and use of public registers; and
4. the creation of a territorial-wide opt-out list enforceable by law.