Ofta's approach to spam offers little hope of speedy action

PUBLISHED : Monday, 19 July, 2004, 12:00am
UPDATED : Monday, 19 July, 2004, 12:00am

The scourge of spam needs no introduction to any computer user. Customarily, one begins any report on spam with figures showing what proportion of e-mail constitutes spam by one definition or another.

Such figures are at best approximations. It is difficult to do better than cite the December survey by the Hong Kong Internet Service Providers Association (HKISPA), which showed that 50 per cent of e-mail in Hong Kong at that time was spam, with about 5 per cent originating here.

Hong Kong anti-spam activists have been marshalling their efforts in an impressive fashion, urging government action. The Hong Kong Anti Spam Coalition, the HKISPA and others hosted a To Regulate or Not forum in January, followed last month with a Dam the Spam forum. That event coincided with the release by the Office of the Telecommunications Authority's (Ofta) long-awaited consultation paper on spam titled Proposals to Contain the Problem - Unsolicited Electronic Messages.

The consultation ends on October 25 and submissions can be lodged at www.ofta.org.

The paper is commendably wide-ranging. The consultation is not confined to e-mail but adopts a technology-neutral approach addressing the longstanding problem of junk faxes and the emerging issues of junk short-messaging services (SMS) and multimedia messaging service.

It kicks off with a useful discussion of the definition of spam. Does a message have to have been sent in bulk, be commercial in nature or be undesirable to be spam? Does any prior voluntary relationship between the sender and recipient prevent a message being spam?

These are questions that have to be asked and answered if our government is to legislate.

The consultation is a data-gathering exercise and Ofta invites submissions on the nature of the problem to help in the framing of a policy.

From there, the paper moves to brief but comprehensive surveys of the problems caused by spam for industry players and consumers; existing legislation touching on spam, principally the Personal Data (Privacy) Ordinance; and, finally, the various non-legislative measures already available.

After this encouraging start, the paper will disappoint many, and it is hard not to feel that Ofta underestimates the public and the industry's genuine appetite for anti-spam legislation - now, regardless of the questions around the efficacy of legal measures.

Hong Kong is behind the curve on anti-spam law compared with other common-law jurisdictions such as Australia, Britain and the United States, and developed Asian markets like South Korea and Japan, which are often invoked by Ofta in other contexts as models for Hong Kong.

Having noted the pro-legislation views of the anti-spam coalition and other industry bodies, the paper states that 'unsolicited messages, in particular e-mail and faxes, [are] an efficient and low-cost marketing tool widely adopted by SMEs [small and medium-sized enterprises]. Some are of the opinion that... additional regulations on unsolicited electronic messages may impede such use by SMEs. Some (it is not clear who) consider the enactment of new legislation on unsolicited electronic messages will also have an impact on direct marketing businesses [which] will need to... configure their direct marketing strategies to conform with the relevant legislation.'

Whoever they are, they are right to be concerned. It is hardly a valid objection to anti-spam legislation that senders of unsolicited messages will have to comply with it and stop sending spam.

The government invites views on the pros and cons of 'a legislative approach' to spam and makes clear that, if legislation is preferred, the government will consult the public further on the issues of definition and the nature of the regulatory restraints.

A consultation paper on a proposed legislative framework for the control of e-mail spam released a month ago by Singapore's Infocomm Development Authority leapfrogged the 'if' question and plunged straight into the 'how' question.

It concluded that an opt-out legislative regime, such as that in the US, would be appropriate for Singapore.

While the Hong Kong government has to be open-minded at the consultation stage and the paper recognises the problems caused by spam, many in the anti-spam community will take little heart from it.

Legislation is by no means a certainty and, if it does emerge as the preferred course, we have a lengthy two-stage consultation procedure ahead of us.

Edward Alder is a partner in the CMT Group at Bird & Bird Hong Kong. Contact: edward.alder@twobirds.com