64 / 192
text messages sent to randomly generated telephone numbers), will generally not fall
within the scope of Part 6A of the Ordinance. However, the Unsolicited Electronic
Messages Ordinance (Cap 593) may apply in these cases, suffice to say that electronic
messages do not include real time person-to-person calls.
5.93
In addition, direct marketing communications addressed to a data subject by name,
but made to his office address, email or telephone number, may in some cases not fall
within the ambit of Part 6A of the Ordinance. The Commissioner takes the view that it
would not be appropriate to enforce Part 6A of the Ordinance in clear-cut cases where
the product or service being marketed is clearly targeted at and intended for the
exclusive use of the data subject’s corporation and is sent to the data subject in his
official capacity but not in his personal capacity. The Commissioner will assess the
circumstances on a case-by-case basis taking into account the purpose of collection of
the personal data, the nature of the products or services being marketed (i.e. whether
they are for personal use or use by a corporation), and whether the marketing is
targeted at the corporation or the data subject as an individual.
5.94
The provisions in Part 6A of the Ordinance also do not apply in relation to the offering, or
advertising of the availability of: (a) social services run, subvented or subsidized by the
Social Welfare Department; (b) healthcare services provided by the Hospital Authority or
Department of Health; or (c) any other social or health care services which, if not
provided, would be likely to cause serious harm to the physical or mental health of the
individual to whom the services are intended to be provided, or any other individual.
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5.95
The Amendment Ordinance also provides a grandfathering arrangement under section
35D(1), which is set out in paragraphs 5.103 to 5.105 below, in relation to personal data
which had already been held and used for direct marketing purposes by the data user
at the time the Amendment Ordinance came into force (i.e.1 April 2013).
Consent
5.96
A data user who intends to use or provide the personal data of a data subject to others
for use in direct marketing shall take specified action to inform the data subject of
certain prescribed information (see paragraphs 5.99 and 5.100 below) and provide the
data subject with a response channel through which the data subject may give his
consent. “Consent”, in the context of direct marketing activities regulated under Part 6A
of the Ordinance, includes an indication of no objection to the intended use or provision
of personal data for direct marketing,
56
e.g. the data subject ticking a box in an
application form to indicate that he does not object to receiving direct marketing
materials. The indication of “no objection” must be explicit, and silence or a non-
response will not amount to consent for direct marketing purposes.
5.97
If consent is obtained orally, the data user must supply the data subject with a written
confirmation within fourteen days of receiving the oral consent, to confirm:
•
the date of receipt of the consent;
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Section 35B.
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Sections 35C and 35J.