Second court order granted to facilitate OFCA's investigation into suspected contraventions of UEMO

     The Office of the Communications Authority (OFCA) today (April 6) welcomed the second court order granted by the Eastern Magistrates' Courts yesterday (April 5), directing two persons related to a company operating a tutor referral business (the Company) to provide information on the sending of unsolicited commercial electronic messages (CEMs) via the WhatsApp Messenger platform which is suspected to have contravened the Unsolicited Electronic Messages Ordinance (Cap. 593) (UEMO). The second court order was granted in response to an application under section 36(3) of the UEMO by the Communications Authority (CA).

     Between 2012 and 2015, OFCA received over 1,000 reports from members of the public alleging that the Company had used the WhatsApp Messenger platform to send a large number of CEMs to promote a tutor referral service. OFCA mounted a raid operation against the Company in December 2014 and identified the persons running the tutor referral service. In June 2015, upon application by the CA, the Eastern Magistrates' Courts granted the first court order pursuant to section 36(3) of the UEMO, directing the sole proprietor of the Company and a related person to provide to OFCA information relevant to the investigation of the suspected contraventions.

     Upon examining the information received consequent to the first court order, OFCA has followed a number of leads in conducting the investigation, and has reasons to believe that two persons who are involved in the operation of the Company possess information that could facilitate OFCA's investigation into the suspected contraventions of the UEMO. After a number of unsuccessful approaches to invite the two persons to provide the required information, the CA applied for the second order from the Court, directing the two persons to provide the information sought by OFCA. The Court granted the second order yesterday, directing the two persons to provide the information to OFCA in three weeks' time.

     "OFCA will continue its investigation into those cases and once we have collected sufficient evidence to establish possible offences under the UEMO, we will take necessary enforcement actions, including initiation of prosecution," a spokesman for OFCA said.

     The UEMO regulates the sending of CEMs that have a "Hong Kong link" over a public telecommunications service to an electronic address. Senders of CEMs are required to comply with the requirements of the UEMO including, among other things, providing accurate sender information and an unsubscribe facility in the message, honouring unsubscribe requests, not sending CEMs to the numbers registered in the do-not-call registers and not sending CEMs to electronic addresses obtained through automated means.

     Under section 36(3) of the UEMO, a magistrate may upon application of the CA issue an order directing a person to give the information relevant to the investigation of a contravention or suspected contravention of the UEMO in writing to the CA within a specified time.
     In recent years, instant messaging applications (IMAs) have gained immense popularity among smartphone users. Between 2012 and 2015, OFCA received over 1,600 reports about suspected contraventions of the UEMO in relation to the sending of CEMs using IMAs, and a great majority of these reports were related to CEMs sent via the WhatsApp Messenger platform. OFCA had referred the reported cases to WhatsApp Inc for follow-up actions in accordance with its terms of service with users.

     "We are pleased to note that following OFCA's referral and the introduction of the 'Report Spam and Block' feature by WhatsApp Inc in the first half of 2015, the number of reports received by OFCA about CEMs sent via the WhatsApp Messenger platform has dropped significantly," the spokesman said.

     "OFCA advises smartphone users to carefully compare the features of different IMAs in handling unsolicited commercial messages in order to make an informed choice that best suits their needs whilst protecting them from spamming," the spokesman added.

Ends/Wednesday, April 6, 2016
Issued at HKT 19:32