You may recall that I announced last year a multi-faceted approach to contain the problem of unsolicited electronic messages, with a basket of measures under the "STEPS" campaign. "STEPS" represents a basket of five measures with:

* "S" standing for strengthening existing regulatory measures;

* "T" for technical solutions;

* "E" for education;

* "P" for partnership; and

* "S" for statutory measures. 

The second "s" includes the introduction of a dedicated piece of anti-spam legislation. Last year, after engaging stakeholders in a series of discussion on proposals for the legislation, we put together a draft legislative framework that was presented to the Legislative Council Panel on Information Technology & Broadcasting in July last year.

We have since then been working diligently in refining the draft framework, and I am pleased to inform you that we have now come up with detailed legislative proposals for the anti-spam legislation for public consultation.

I would like to highlight some of the key aspects of the anti-spam legislation, the Unsolicited Electronic Messages Bill.

First, since the bulk of unsolicited electronic messages in Hong Kong are of commercial nature, we propose to regulate only electronic messages of such nature under the Unsolicited Electronic Messages Bill.

Non-commercial communications from governments, political parties, religious groups, charities or individuals will not fall within the ambit of the Bill. Regulating unsolicited electronic messages of a commercial nature will ensure that regulation is needs-driven.

It should also put the minds of skeptics and conspiracy theorists at ease in that there is no question of Government using the proposed anti-spam legislation to restrict freedom of speech and freedom of expression in Hong Kong.

Second, in view of the rapid development of information and communications technology, we propose to adopt a technology-neutral approach and bring within the ambit of the Bill generally all types of electronic messages.

This will not only bring the notorious spamming problem areas - such as e-mail, fax and pre-recorded voice messages - within the regulatory framework, but will also cater for new types of electronic messages that may spring up in future in response to technology and service developments.

We recognise that it is generally accepted practice in Hong Kong for salespeople to make personal telephone calls to promote certain products or services to existing or potential clients. Such promotion calls require the business entity undertaking the promotion to devote substantial manpower resources and time. To leave room for such normal and legitimate marketing activities, we propose to exclude normal person-to-person telephone calls from the ambit of the Bill.

'Opt-in' versus 'opt-out'

Third, like all economies with anti-spam legislation, we have been agonising over whether we should have an "opt-in" or "opt-out" regime. An "opt-in" regime requires the sender of commercial electronic messages to have obtained consent from the recipient before he could send commercial electronic messages to that recipient.

An "opt-out" regime on the other hand requires the sender of commercial electronic messages to stop sending further such messages to a recipient if the recipient so requests. 

We have given thorough consideration to the pros and cons of these two regimes.While we accept that the "opt-in" regime can be seen to provide a higher standard of protection for recipients of electronic messages, it is doubtful whether it could substantially reduce the amount of spam we receive in practice.

For one thing, I do not believe that illicit spammers trying to sell you special products will stop doing so even if an "opt-in" regime is in place. Besides, an "opt-in" regime could create a substantial obstacle for small and medium sized enterprises and start-up businesses to use electronic communications as a low-cost means to promote their products and services. 

'Opt-out' regime leaves room for promotion

An "opt-out" regime, on the other hand, would provide companies with room to promote their products, and in turn facilitate development of SMEs. It also provides opportunities for recipients to browse through promotion information before deciding whether to receive further messages. On balance, we have decided to stick to our original proposal of an "opt-out" regime, and address its shortcomings separately.

Fourth, to address one of the shortcomings of the "opt-out" regime that a recipient of commercial electronic messages needs to unsubscribe from many senders, we propose to implement a system of "do-not-call registers" to support the "opt-out" regime.

Once an electronic address is placed in such a register, the legal effect will be the same as sending unsubscribe messages to ALL e-marketers that no further commercial electronic messages should be sent to that electronic address.

User can still choose to receive messages

Naturally, the do-not-call registers should not stop anyone from making arrangements with individual e-marketers for receiving commercial electronic messages from those e-marketers. You can still choose to receive messages of special offers from certain specified senders, such as your favourite restaurants.

I would like to caution, though, that the system of do-not-call registers may not be suitable for all types of electronic communications. For instance, the Federal Trade Commission, the spam regulator in the United States, undertook an in-depth study and concluded that without a system in place to authenticate the origin of e-mail messages, a do-not-e-mail register would fail to reduce the burden of spam on the e-mail addresses on the register. 

Indeed, such a register would be a gold mine for illicit spammers seeking a list of valid e-mail addresses to spam. We, therefore, propose to leave it to the Telecommunications Authority to consider which types of electronic addresses are suitable for do-not-call registers. At this stage, we think do-not-call registers should be suitable for pre-recorded voice messages, fax messages and SMS/MMS messages. 

Law to apply to messages sent abroad

Fifth and last, we propose to give extra-territorial application to the Unsolicited Electronic Messages Bill. We originally intended to focus our enforcement effort on acts occurring in Hong Kong. However, we have reviewed the issue and decided to give a broader applicability to the Bill.

So long as there is a Hong Kong connection, or "nexus", for an electronic message, the message should be required to comply with the requirements in the Bill. For instance, an electronic message originates from Hong Kong, or one that is sent to an electronic address in Hong Kong, would come under the ambit of the Bill. 

This extra-territorial application will facilitate co-operation with overseas law-enforcement agencies and send a clear signal to overseas spammers that their act would not be tolerated. Frequent travelers, like many of you here, could take comfort that your Hong Kong mobile phone numbers are Hong Kong electronic addresses, even if you are roaming in an overseas country.

Thus, if you have included your Hong Kong mobile phone numbers on a do-not-call register and an unscrupulous e-marketer still sends you pre-recorded promotion messages in the middle of the night while you are in New York, that e-marketer has breached the regulatory regime and would be subject to enforcement action by the Telecommunications Authority.

If you should feel aggrieved by such calls, the Unsolicited Electronic Messages Bill would empower you, as a victim, to seek in court remedies from the spammer, including compensation by way of damages for the pecuniary loss that you have suffered.

The public consultation paper to be released this afternoon contains much more details. I hope you could find some time to obtain a copy of the paper from our website and give us your thoughts on our proposals. The consultation period will last two months until March 20, 2006.

Secretary for Commerce, Industry & Technology John Tsang gave this address at an InterChambers of Commerce luncheon.