Jurisdiction - Singapore
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Singapore – Personal Data Protection Act 2012.

31 December, 2013

 

Legal News & Analysis – Asia Pacific – Singapore – TMT

 

Issuance Of Advisory Guidelines On The Do Not Call Provisions

 

On 26 December 2013, the Personal Data Protection Commission (“PDPC”) issued the Advisory Guidelines on the Do Not Call Provisions (“DNC Guidelines”).

 

The DNC Guidelines are issued by the PDPC to provide guidance on the manner in which the PDPC will interpret the provisions on the Do Not Call (“DNC”) regime under the Personal Data Protection Act (“PDPA”).

 

Note that the DNC Guidelines are to be read in conjunction with the Advisory Guidelines On Key Concepts In The Personal Data Protection Act (in particular Chapters 22 – 32) and the Advisory Guidelines On The Personal Data Protection Act For Selected Topics that were issued by the PDPC earlier this year.

 

As a general comment, the DNC Guidelines provide more elaboration on selected issues in relation to the DNC provisions under the PDPA. Such elaboration includes more specific examples that provide further guidance with regard to how the PDPC will tend to interpret the DNC provisions.

 

Significantly, the PDPC, with the approval of the Minister, has exempted the sending of text and fax marketing messages from the DNC requirements, so long as such messages are sent to customers with whom an organisation has an “ongoing relationship”.

 

Definition Of Specified Message

 

The DNC provisions and obligations apply only to a “specified message”, which has been defined under the PDPA to mean generally a message where the purpose, or one of the purposes, of the message, is to advertise or promote goods or services.

 

The DNC Guidelines have further clarified the definition of “specified message” by providing illustrative examples of messages which would fall within or out of the definition.

 

In particular, the DNC Guidelines have clarified the following:

 

  • Offers to send specified messages: Generally, a message sent to offer to send specified messages would be considered a specified message as it relates to a supplier of goods or services or generally to the goods or services the supplier would like to offer or advertise. In addition, the DNC Guidelines have clarified that a message sent to a Singapore telephone number where the purpose, or one of the purposes, is to obtain clear and unambiguous consent for the sending of specified messages, would also be considered a specified message.
  • Surveys and market research: Paragraph 1(f) of the Eighth Schedule excludes from the definition of a specified message any message which has the sole purpose of conducting market research or market survey. The DNC Guidelines have further clarified that the PDPC is prepared to accept that the offer or provision of a gift as a form of reward or expression of thanks for survey participants does not constitute an offer to supply goods or services.
  • Responding to requests for information on goods and services: The DNC Guidelines have clarified that, generally, a person who sends a message to a Singapore telephone number for the sole purpose of responding to a request for information about a good or service would not be considered a specified message.
  • Invitations to events, seminars and courses: The DNC Guidelines have clarified that depending on the nature of the event, seminar or course (or other similar functions), an invitation to attend the foregoing could fall within the meaning of a specified message. Examples include: where the event offers to supply a good or service (such as a sale event), or a seminar that promotes or advertises a supplier.
  • Renewals: The DNC Guidelines have clarified that messages pertaining to renewals of goods or services would fall within the exceptions at paragraph 1(e)(i) and/or 1(e)(iii) of the Eighth Schedule, thereby being excluded from the definition of specified message. An example of such message provided in the DNC Guidelines is: “Your service contract / subscription will cease on 24th July 2014. Renew now and get 10% off.”.
  • Solicitation of donations or volunteers: Messages sent solely to solicit donations or volunteers for a charitable cause without any marketing elements (such as an offer to supply a good or service) would not fall within the definition of a specified message. The following are some examples of messages that would not be considered specified messages, as provided in the DNC Guidelines, “Do a good deed and donate to Charity ABC.”, “Charity ABC is looking for volunteers. Sign up to help!”. However, do note other relevant laws that may apply to the sending of such messages for charitable causes.

 

“Ongoing Relationship” Exemption

 

The PDPC, with the approval of the Minister, will be exempting SMS/MMS and Fax marketing messages from DNC requirements so long as they are sent to customers with whom an organisation has an “ongoing relationship”. This exemption will be gazetted in the Personal Data Protection (Exemption from Section 43) Order 2013 (“Exemption”) which will come into effect on 2 January 2014, when the DNC provisions come into effect.

 

The Exemption only applies to the sending of specified messages by way of text or fax. Messages sent via voice calls would not be covered under the Exemption.

 

“Specified text message” has been defined under the DNC regulations to include specified messages in any text, sound or visual form. SMS / MMS would be considered specified text messages.

 

Generally, the Exemption will exempt a sender (or his agent) of a fax or text specified message from the requirements of Section 43(1) of the PDPA if:

 

  • the sender is in an ongoing relationship with the subscriber or user of that Singapore telephone number at the time of sending the fax or text specified message; and
  • the purpose of the fax or text specified message is related to the subject of the ongoing relationship.
 

“Ongoing relationship” has been defined as a relationship, which is on an ongoing basis, between a sender and a subscriber or user of a Singapore telephone number, arising from the carrying on or conduct of a business or activity (commercial or otherwise) by the sender. Ongoing relationships would hence include both commercial and non-commercial relationships.

 

The Exemption only applies to specified text or fax messages which purpose is related to the subject of the ongoing relationship. Therefore, whether the Exemption ultimately applies would depend on the subject of the ongoing relationship with the recipient, and a sender may not rely on the Exemption to market all other aspects of its business indiscriminately without considering the same.

 

The DNC Guidelines provide specific examples of messages that the PDPC would consider as relating to the subject of the ongoing relationship.

 

Note that the Exemption would not apply if, at the time of transmission of the text or fax specified message, the subscriber or user:

 

  • has withdrawn consent under Section 47(1) of the PDPA;
  • has opted out of receiving any exempt message from the sender via that Singapore telephone number by submitting to the sender an opt-out notice referred to in the Exemption and a period of 30 days after the date on which the opt-out notice was submitted has lapsed; or
  • has otherwise indicated to the sender that he does not consent to the sender sending to that Singapore telephone number any specified message.

 

Note that the Exemption will be subject to certain conditions, including the requirement to include an opt-out facility for receiving such specified message via text and fax.

 

The effect of the Exemption is that persons may send specified messages by way of text or fax to a Singapore telephone number without first having to check with the Do Not Call Registry or obtain clear and unambiguous consent in evidential form from the subscriber or user of the telephone number to send the specified message if they are in an ongoing relationship with the subscriber or user of that telephone number and they are sending a message which purpose is related to the subject of that ongoing relationship. Therefore, persons may continue to send marketing text or fax messages to individuals with whom they have an ongoing relationship despite the individual’s registration on the Do Not Call Registry’s No Text Message Register or No Fax Message Register. However, such persons may no longer rely on the Exemption once the ongoing relationship between the sender and the recipient has ceased.

 

Note that the Exemption is intended to be an additional option for some organisations to send specified text and fax messages to individuals (subject to certain conditions). In this regard, organisations may still wish to comply with the provisions of section 43(1) of the PDPA in relation to the sending of such specified messages rather than rely on the Exemption. For example, organisations which intend to conduct a broad marketing campaign that is pertaining to matters beyond the scope of the ongoing relationship (e.g. joint marketing campaigns with third parties with whom the customer has no ongoing relationship) should still comply with the provisions of section 43(1) of the PDPA.

 

Clear And Unambiguous Consent In Evidential Form

 

The DNC Guidelines have provided further clarifications on obtaining clear and unambiguous consent in evidential form by providing additional examples of such consent.

 

In particular, the DNC Guidelines have also suggested the following manner to obtain consent:

 

  • respond to a pop-up on a webpage / mobile application;
  • fill out and submit a web form / physical form;
  • indication of choice by signing or ticking against a check box printed on a letter or service agreement; or
  • call or send an SMS to the sender.
 

Requirement To Provide Identification And Contact Information In Specified Message

 

The DNC Guidelines have also provided some examples of how persons may provide sender’s identification and contact information in compliance with the PDPA.

 

In relation to the requirement to provide clear and accurate information identifying the sender, the DNC Guidelines has clarified that persons may choose to use their website address as identification information if the recipient of the message can identify the sender using the information provided within the text of the website address itself, or within the contents of the landing page which the website address leads to. Furthermore, senders may also wish to identify themselves using a name other than their own which is more closely related to the goods or services offered or if the former would be more familiar to the recipient.

 

In relation to the requirement to provide clear and accurate information about how the recipient may readily contact the sender, the DNC Guidelines clarified that the PDPC would consider this requirement to be met so long as the contact information enables the recipient to directly contact the sender in a reasonably convenient manner. As a best practice, the DNC Guidelines recommend that any contact information provided should be readily accessible from Singapore and operational during Singapore business hours.

 

Conclusion

 

The DNC Guidelines provide further clarity on how the PDPC is likely to interpret, apply and enforce the DNC provisions under the PDPA.

 

The DNC Guidelines will be exempting SMS/MMS and Fax marketing messages from DNC requirements so long as it is sent to customers with whom an organisation has an “ongoing relationship”.

 

For further information on data protection and the DNC register, the PDPC website can be accessed at http://www.pdpc.gov.sg.

 

A copy of the guidelines and regulations can be accessed at http://www.pdpc.gov.sg/resources/advisory-guidelines.

 

Rajah & Tann

 

For further information, please contact:

 

Rajesh Sreenivasan, Partner, Rajah & Tann

rajesh@rajahtann.com

 

Steve Tan, Partner, Rajah & Tann 

steve.tan@rajahtann.com

 

Lionel Tan, Partner, Rajah & Tann 

lionel.tan@rajahtann.com

 

Benjamin Cheong, Partner, Rajah & Tann 

benjamin.cheong@rajahtann.com

 

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