Date: 7 September 2021
An Estate Agent Convicted for Violating Direct Marketing Restriction
Privacy Commissioner Welcomes the Court’s Ruling
An estate agent was charged at the Kowloon City Magistrates’ Court of the offence under section 35G(3) of the Personal Data (Privacy) Ordinance (PDPO) for failing to comply with the requirement from a data subject to cease to use his personal data in direct marketing. The defendant today was convicted after trial and was fined HK$15,000. The court held that the defendant, together with Ricacorp Properties Limited (Ricacorp), jointly controlled the personal data of the data subject and was a data user in the case. The court also noted that the PDPO does not apply only to organisations, but also individuals. The Privacy Commissioner for Personal Data (Privacy Commissioner), Ms Ada CHUNG Lai-ling, welcomes the court’s ruling.
The Privacy Commissioner said, “Before calling a customer for direct marketing purpose, a staff member of a company should check the opt-out list maintained by the company. An individual staff member who has omitted to check the opt-out list and has called the customers on the list for direct marketing may commit a criminal offence.”
The Privacy Commissioner also reminds consumers that if they receive direct marketing messages notwithstanding their opt-out requests, they should record and keep the details of the direct marketing messages for them to lodge a complaint with the Office of the Privacy Commissioner for Personal Data (PCPD).
Background of the Case
The case originated from a complaint received by the PCPD in 2018.
The complainant provided his full name and mobile phone number to Ricacorp when he purchased a property through Ricacorp. He subsequently made an opt-out request to Ricacorp in February 2018. Ricacorp confirmed that the complainant had already been included in its opt-out list and no further direct marketing calls would be made to the complainant. However, the complainant received a direct marketing call from an estate agent of Ricacorp in November 2018 asking him if he wanted to sell his property. He then complained to the PCPD.
After processing the complaint, the PCPD was of the view that the data user concerned had failed to comply with the complainant’s opt-out request. The case was therefore referred to the Police for criminal investigation and consideration of prosecution.
Relevant Statutory Provisions
Pursuant to section 35G(3) of the PDPO, a data user who receives a customer’s request to cease to use his personal data in direct marketing must comply with the request without charge. Failure to comply with the requirement is a criminal offence, which is punishable by a fine up to HK$500,000 and imprisonment for 3 years.