Hong Kong Privacy Commissioner for Personal Data publishes "New Guidance on Direct Marketing"

The Personal Data (Privacy) Amendment Ordinance (the "Amendment Ordinance") was passed on 27 June 2012. The Amendment Ordinance contains a number of new provisions regulating the use of personal data in connection with direct marketing activities, which tighten the regulation of direct marketing activities in Hong Kong.

While most of the provisions in the Amendment Ordinance have already been implemented, the provisions relating to direct marketing are set to come into effect on 1 April 2013 (the "Commencement Date"). In order to provide guidance for organisations on compliance with the new direct marketing provisions, the Privacy Commissioner for Personal Data (the "Commissioner") published a guidance note on 15 January 2013, titled "New Guidance on Direct Marketing" (the "Guidance Note").

To a large extent the Guidance Note follows the recommendations contained in the Direct Marketing Guidance Note issued by the Commissioner in 2010 (and revised in 2012). There are a number of important differences, the most significant of which relate to the consent and notification requirements under the new direct marketing provisions. The Amendment Ordinance requires organisations that collect personal data ("data users") to communicate to individuals from whom they collect such data ("data subjects") certain information together with an opt-out facility before they use such data for direct marketing. Further, in a change which is set to affect the data collection practices of many data users in Hong Kong, the Guidance Note makes it clear that consent must be explicit and cannot be inferred from silence or inaction on the part of the data subject.

We highlight the major recommendations set out in the Guidance Note, and discuss the implications for organisations that conduct direct marketing in Hong Kong.

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