The Office of the Communications Authority (“OFCA”) welcomed the court order granted by the Eastern Magistrates' Courts yesterday (15 June 2015) directing the sole proprietor of a company operating a tutor referral business and a related person to provide information on the sending of unsolicited short messages via the WhatsApp Messenger platform which is suspected to have contravened the Unsolicited Electronic Messages Ordinance (Cap. 593) (“UEMO”). The Court also directed Facebook to provide information relating to its services used by the tutor referral business which could be relevant to OFCA’s investigation. The court order was granted in response to an application under section 36(3) of the UEMO by the Communications Authority (“CA”).
OFCA has received over 1,000 complaints about the sending of an identical short message promoting a tutor referral service via the WhatsApp Messenger platform on the Internet. Based on the complaints received, OFCA has reasons to believe that the respondents possess information that could facilitate OFCA’s investigation into potential contraventions of section 8 (i.e. commercial electronic messages (“CEM”) must include accurate sender information), section 9 (i.e. CEM must contain unsubscribe facility), section 10 (i.e. CEM must not be sent after an unsubscribe request is sent), section 11 (i.e. CEM must not be sent to electronic address listed in do-not-call register) and section 18 (i.e. sending of CEM to electronic address obtained using automated means) of the UEMO.
“OFCA mounted a raid operation in December 2014, identified the persons running the tutor referral service and reminded them of the need to comply with the requirements in the UEMO. Following the raid operation, OFCA continues to receive complaints about the sending of messages promoting the service of the tutor referral company. OFCA has been following a number of leads in conducting the investigation, and after a few unsuccessful approaches to invite the respondents to provide information to facilitate its investigation, OFCA applied for an order from the court directing the respondents to provide said information.
Following the Court’s decision yesterday, the respondents were directed to provide the information to OFCA in three weeks’ time. OFCA will continue its active 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 spokesperson of OFCA said.
The UEMO regulates the sending of CEM that have a “Hong Kong link” over a public telecommunications service to an electronic address. CEM senders are required to comply with the requirements of the UEMO including, among other things, to provide accurate sender information and an unsubscribe facility in the message, to honour unsubscribe requests, not to send CEMs to the numbers registered in the do-not-call register and not to send CEMs to electronic addresses obtained through automated means.
Under section 36 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.
OFCA considers that the root cause for users of the WhatsApp Messenger service being more vulnerable to spamming is closely linked to WhatsApp’s very own design that allows a sender to create chat groups by adding any telephone numbers without the recipients’ express consent. In contrast, many other popular online messaging services would require the express consent of a recipient before a sender unknown to him/her might add him/her to a chat group or send messages to him/her, making mass sending of messages more difficult.
“OFCA has written to WhatsApp Inc. to reflect our observations and urge WhatsApp Inc. to improve its system design to prevent potential abuses by its users. OFCA has also referred cases of alleged spamming to WhatsApp Inc. for follow up actions in accordance with its terms of service with users. We are pleased to note that WhatsApp Inc. has recently introduced a new “Report Spam and Block” feature, which allows a user to report suspected spammers direct to the company so that it can take action as necessary,” the spokesperson said.
“OFCA advises smartphone users that, to better protect themselves from spamming, they should carefully compare the features of different online messaging services in handling unsolicited commercial messages in order to make an informed choice that best suits their needs,” the spokesperson added.
Office of the Communications Authority
16 June 2015