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

Direct Marketing through Electronic Media

Junk Faxes

Junk faxes are a real problem in this modern age. Hongkong Telecom has reportedly received 185,000 junk-fax complaints in the two years to June 1997. Our Office also has received considerable number of enquiries from individuals who regarded junk faxes as a serious privacy intrusion in addition to the nuisance and inconvenience factors.

Our Office will work closely with The Office of the Telecommunications Authority (OFTA) which will issue shortly a consultation document on suggested tactics to combat this issue, including legislation making it illegal to send a fax without a return address, establishing a database of people who want to opt-out of advertising faxes, enhancing the Telecom client code of conduct accompanied by an awareness and education campaign, and the possible establishment of an independent committee to handle complaints.

Internet

Electronic commerce, conducting business over the information superhighway, is growing at an phenomenal rate. Its many recognised advantages include a new channel of doing business which brings in new revenue, particularly with small and medium enterprises (SMEs) which could now access global markets easier and cost-effectively.

The Internet provides a new platform, easy and effective for direct marketing. However, it should be recognised that the data protection principles and provisions of the Personal Data (Privacy) Ordinance are also applicable to the collection, recording and subsequent use of personal data in the cyberworld by Hong Kong organisations.

To reinforce this awareness, our Office recently published a guideline document, "Personal Data Privacy and the Internet - A Guide for Data Users" to assist organisations in complying with some of the more common applicable requirements of the Ordinance when they are collecting, displaying or transmitting personal data over the Internet. This guide has a section on "Direct marketing activities on the Internet" which emphasises that organisations need to:

• state that direct marketing is a purpose of use of personal data at the time of collection;
• provide an opt-out choice to the individual;
• maintain an opt-out list; and
• set a policy on unsolicited advertising e-mails (spamming).

Collecting Personal Data From Children

Increasingly children are becoming a target for direct marketing over the Internet or television. The US is the largest market for electronic commerce and the White House report "A framework for Global Electronic Commerce" (dated 1 July 1997) cites as a particular concern "the use of information gathered form children, who may lack the cognitive ability to recognise and appreciate privacy concerns. Parents should be able to choose whether or not personally identifiable information is collected from or about their children". As a result of a large scale survey of websites, the US Federal Trade Commission in its "Report to Congress on Privacy Online" (dated 4 June 1998) recommended legislation that would place parents in control of the online collection and use of personal data from their children. This legislation would require websites that collect this information from kids to provide actual notice to the parents and to obtain parental consent, and would ensure that parents know about and control the online collection of information from their children.

While we have yet to acquire in-depth knowledge of the situation in Hong Kong though enquiries to our Office on this kind of practice are on the increase, I share a similar concern as expressed in the US. Our Office will conduct a study on children's websites in Hong Kong, and would make relevant recommendations on privacy protection.

Regional Harmonisation of Code of Practice

The Personal Data (Privacy) Ordinance requires Hong Kong organisations to provide an opt-out clause in the direct marketing message the first time an individual is contacted. However, it is recognised that enforcement of this provision is difficult if not impossible with respect to direct marketing materials sent by organisations based overseas targeting Hong Kong residents due to jurisdictional reasons. It would therefore be desirable, for all the obvious reasons of the cost-effectiveness of direct marketing campaigns, consumer satisfaction and privacy protection, for the industrial associations representing the direct marketing industry in Asian countries to harmonise their individual code of practice to provide the opt-out message, and maintain and respect an opt-out list for those who so wish within the Asian region.