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Case Notes

Case Notes

This case related to provisions on direct marketing

Case No.:2013E02

Enquiry: Whether the sending of email to students and staff by an educational institution constitutes direct marketing

An educational institution made the following enquires to the PCPD in relation to the sending of course information to its students and staff members through the email network (“sending of email”):

Q: Whether the sending of email constituted “direct marketing” (“DM”) within the meaning of the Ordinance, and if so, could it be regarded as “general communications” between the educational institution and its students/staff members, thereby being exempted from the requirements under Part VIA of the Ordinance.

A:

(a) DM is defined by the Ordinance to include the offering, or advertising of the availability of goods, facilities or services through direct marketing means. “Direct marketing means” includes sending information or goods, addressed to specific persons, by electronic mail.

If the sending of email involved offering of new courses organized by the institution, it would constitute DM and the institution would need to observe the requirements under Part VIA of the Ordinance which regulate the use and provision for use of personal data in DM activity.

(b) The institution would be required to obtain the consent of its students/staff members before using their personal data in DM. When using their personal data in DM for the first time, the institution would need to inform them that the institution would, without charge, cease to use the data in DM if it is so required. The institution would also be required to comply with any opt-out requests made by its students/staff members.

(c) The Ordinance does not contain any exemption in relation to “general communications” between a data user and a data subject. However, the requirements for a data user to notify a data subject of his intention to use the data subject’s personal data in DM and to obtain the data subject’s consent to the intended use do not apply to the personal data which the data user has control over its use before the effective date of the legal requirements (i.e. 1 April 2013) if-

- the data subject had been explicitly informed by the data user, in a manner which is easily understandable and easily readable (if informed in writing), of the intended use or use of the data subject’s personal data in DM in relation to the class of products or services;

- the data user had so used any of the data;

- the data subject had not required the data user to cease to use any of the data; and

- the data user had not in relation to such use contravened any provision of the Ordinance as in force at the time of the use.

The educational institution was invited to read the “New Guidance on Direct Marketing” issued by the PCPD (www.pcpd.org.hk/english/publications/files/GN_DM_e.pdf) to gain a better understanding of the provisions under Part VIA of the Ordinance.

uploaded in March 2014


Category : Provisions/DPPs/COPs/Guidelines : Topic/Subject Matter :