Voice calls in the context of ongoing relationships – a welcome step forward?

On Thursday 14 May 2020, the Ministry of Communications and Information and the Personal Data Protection Commission of Singapore launched an online public consultation of the Personal Data Protection (Amendment) Bill 2020.

One seemingly small thing that the draft bill covers is bringing an Exemption from section 43 of the Personal Data Protection Act, the PDPA, into the Act itself. Here is how that is being done. It will lift the existing limitation to sending messages in the context of an ongoing relationship to fax messages and text messages only. It will enable voice calls to be made to Singapore telephone numbers in the context of an ongoing relationship.

You may wish to think through the implications it might have for your business and the operational changes - including efficiencies - that may be possible for you if this change to the PDPA goes ahead as proposed presently. Equally, you may like to think about the implications it might have for you as an individual being interrupted by an increased number of voice calls, even if your number is registered on the Do Not Call registry for voice calls.

Specified Messages

Section 43 of the PDPA is part of the Do Not Call provisions in the PDPA that came into effect on 2 January 2014. It says that a 'specified message' cannot be sent to a Singapore telephone number unless the sender has checked the relevant Do Not Call register to make sure that the number is not listed in it.¹ Any person who contravenes this rule is guilty of an offence. On conviction, they can be liable to a fine not exceeding $10,000.

A 'specified message' is, basically, a marketing message - a voice call, fax or SMS/MMS/WhatsApp, etc. - that is intended to sell goods or services, an interest in land, a business or investment opportunity, etc. Various types of messages, as listed in the Eighth Schedule to the PDPA, are excluded from the definition of 'specified messages'.

However, the Eighth Schedule did not deal with messages sent in the course of an ongoing relationship with a user or subscriber of a Singapore telephone number. Consequently, on 24 December 2013 the Commission issued an Order saying that section 43 of the PDPA would not apply where:

• a specified fax message or a specified text message was sent to a Singapore telephone number and
• the sender was in an 'ongoing relationship' with the user or subscriber of the Singapore telephone number

It defined an 'ongoing relationship' to mean '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.

Proposed Amendment

The Commission says in the consultation document that the amendment to the PDPA would incorporate the Order described above into the Do Not Call provisions in the PDPA. It said that the intent is to allow organisations to send messages to customers without the need to check the Do Not Call register(s) when the messages relate to the subject of their ongoing relationship.

Clause 34 of the draft amendment bill does three things:

1. it deletes paragraph 1(e) of the Eighth Schedule, which says that:

'[a specified message does not include] any message the sole purpose of which is to provide —

1. notification concerning a change in the terms or features of;
2. notification of a change in the standing or status of the recipient of the message with respect to; or
3. at regular periodic intervals, account balance information or other type of account statement with respect to,

a subscription, membership, account, loan or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of goods or services offered by the sender'

2. it replaces it with a new paragraph 1(e), which says that:

'[a specified message does not include] any message other than a message mentioned in sub-paragraph (d), sent while the sender is in an ongoing relationship with the recipient of the message' and

3. it adds a definition of 'ongoing relationship' that is the same as the definition that is in the section 43 exemption Order (as quoted above)

Effect of the Proposed Amendment

The section 43 exemption Order allows faxes and text messages to be sent to Singapore telephone numbers without the sender checking the Do Not Call registry if the fax or text is for the purpose of an ongoing relationship.

As drafted, the amendment to the PDPA allows any message, including voice calls, to be sent to Singapore telephone numbers without the sender checking the Do Not Call registry if the message is sent for the purpose of an ongoing relationship.

In other words, the existing prohibition on voice calls to Singapore telephone numbers in the context of an ongoing relationship will be lifted.

Amended Eighth Schedule

Following the proposed amendment, the Eighth Schedule will read as follows:

EXCLUSION FROM MEANING OF "SPECIFIED MESSAGE"

1.  (1) For the purposes of Part IX, a specified message shall not include any of the following:

1. any message sent by a public agency under, or to promote, any programme carried out by any public agency which is not for a commercial purpose;
2. any message sent by an individual acting in a personal or domestic capacity;
3. any message which is necessary to respond to an emergency that threatens the life, health or safety of any individual;
4. any message the sole purpose of which is —
   1. to facilitate, complete or confirm a transaction that the recipient of the message has previously agreed to enter into with the sender;
   2. to provide warranty information, product recall information or safety or security information with respect to a product or service purchased or used by the recipient of the message; or
   3. to deliver goods or services, including product updates or upgrades, that the recipient of the message is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender;
5. any message, other than a message mentioned in sub-paragraph (d), sent while the sender is in an ongoing relationship with the recipient of the message;
6. any message the sole purpose of which is to conduct market research or market survey; or
7. any message sent to an organisation other than an individual acting in a personal or domestic capacity, for any purpose of the receiving organisation.

(2) In sub-paragraph (1)(e), "ongoing relationship" means a relationship, which is on an ongoing basis, between the sender and the recipient of the message, arising from the carrying on or conduct of a business or activity (commercial or otherwise) by the sender.

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¹ There is, in effect, an exception if the sender has clear and unambiguous consent but that is not relevant to what we will review here.

Written by Lyn Boxall, Director, Lyn Boxall LLC

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official view or position of DPEXNetwork.