On February 24 the Hong Kong Government announced a series of measures to fight spam, including new legislation to prevent Hong Kong from becoming a safe haven for spammers and to aid international investigation and enforcement.

John Tsang, Hong Kong"s secretary for commerce, industry and technology, said spamming has affected almost everyone in Hong Kong. His plans address e-mail, fax and mobile phone spam.

"The fixed telecommunications network service operators in Hong Kong received more than 36,000 junk fax complaints in 2004," said Tsang. "A survey conducted by the Hong Kong Internet Service Providers Association found that spam had risen to account for around 60 percent of all e-mails, with individual members experiencing as much as 90 percent of their e-mails being spam."

The government will launch a campaign called STEPS, which stands for:

Strengthening existing regulatory measures: the government will work with telcos to penalize advertisers who spam recipients on the "not-to-call" list by reducing the timeframe required to cut off their access to telco services. It will also extend an existing code of practice for mobile operators to cover all SMS and MMS unsolicited promotional messages, including those sent by the operators themselves.

Technical solutions: government collaboration with the industry to organize seminars, conferences and exhibitions to promote the latest anti-spam technical solutions to all users is planned.

Education: consumers will be encouraged not to respond to spam, much less buy the goods it promotes.

Partnerships: one possible partnership was the development of a common blacklist to filter spam at the local ISP level. Tsang added that his bureau would soon become one of the founding signatories of a multilateral MOU on co-operation in countering spam.

Statutory measures: "We have an open mind on the exact form and content of the [proposed] legislation," said Tsang, "but the key is to strike the right balance between the need to discourage spamming and to enable legitimate e-marketing activities to develop properly."

Tsang said the government will engage representative stakeholder groups over the next few months "for detailed and pragmatic discussions." He intends to introduce the full draft legislation into Legco some time next year.

Nobody wants spam-not even legitimate e-marketers, because they find much of their traffic blocked by antispam filters. Stateside ISPs are quite vociferous, and may have helped slow anti-spam legislation in the US. But the advent of spamware, infecting PCs ("zombies") through which spam e-mails are redirected (thus fooling blacklist filters maintained by ISPs, security service providers and major corporate users), means that the ISPs cannot so easily be blamed as part of the spam food chain.

As we have seen with denial-of-service attacks, Trojans, and increasingly sophisticated occurrences of phishing, the law (not just in Hong Kong but everywhere) has proven unable to keep pace with technological wrong-doing. Statute laws are very slow in production. First, the government must perceive a need for a particular thing to be proscribed. Next follows a lengthy consultation process. Then the law draftsmen (who generally specialize in drafting laws, rather than technology) produce a draft. When Legco time permits, the draft will undergo a number of readings before having any chance of being enacted.

Such caution is fuelled by enforcement realities. There is no point in enacting Hong Kong laws against Eastern Europe spammers who target "@netvigator.com" e-mail accounts. Even if Hong Kong police officers were to arrive in Poland, they would not have no jurisdiction and would soon find local courts acting to protect the liberty of their citizens. It is much safer for the police here to doggedly pursue those spitting in the streets-at least they can secure a conviction for that.

The globalization of laws

Accountants can work anywhere in the world, because accounting standards may differ a little from country to country but figures are figures. The same is not true for us lawyers. Laws vary greatly between Hong Kong, the mainland, Macau and Taiwan, for example. In relation to computer crimes, cooperation is hampered by judicial indifference or inconsistency of approach.

I have high hopes that legislation may eventually be brought before Legco which will allow the Courts here to occasionally give a slap on the wrist to (the very few) spammers operating in Hong Kong. I do not expect the laws to be well co-ordinated with the laws of other jurisdictions; primarily because there is no effective inter-governmental process to effect such co-ordination. It is perhaps more likely that enterprising service providers seeing a revenue-generating opportunity will find an answer, by micro-charging for e-mails (as in the Penny Black project), thus making spamming uneconomic.

Were that to happen, lawmakers would no doubt contentedly revert to legislating against important things-like spitting.

Peter Bullock is Head of Technology & Services Law, Asia Pacific and a Partner of Masons" International Law Firm. He can be contacted at peter.bullock@pinsentmasons.com.