HONG KONG SAR, CHINA Law and Practice Contributed by: Angus Forsyth, Angus Forsyth & Co
a readily comprehensible manner; and, where a duty group promotes a stem cell transfusion service which it states to be performed by a medical practitioner without disclosing the risk of the medical treatment, omission of such disclosure is itself misleading. Further prohibited by the Trade Descriptions Ordi - nance is any aggressive commercial practice, which is defined as: “a practice that significantly impairs or is likely signifi - cantly to impair the freedom of choice of the average consumer or where conduct in relation to the goods or services concerned involves in any way the use by the Seller or service provider of harassment, coercion or undue influence which causes or is likely to cause a consumer to make a decision that in the absence of such blandishment he or she would not have made a decision to buy the goods or the services concerned”. 1.4 What Is Advertising? “Advertisement” is defined in the Trade Descriptions Ordinance as including “a catalogue, a circular and a price list”. This Ordinance prohibits false trade descriptions, defined as a trade description which is false to a material degree or a trade description which, though not false, is misleading – ie, likely to be taken for a trade description of a kind that would be false to a material degree. This Ordinance further penal - ises forgery of trade marks and prohibits false trade descriptions in respect of services as well as goods. The Television and Radio Codes of Practice define an advertisement as: “any material included in a licensed TV or radio service which is designed to advance the sale of any particu - lar product or service or to promote the interests of any organisation, commercial concern or individual whether by way of words and/or sound effects (includ - ing music) and whether in the form of direct announce - ment, slogans, descriptions or otherwise and includes any promotional reference to any products or services in the course of a TV or radio programme”. 1.5 Pre-Approvals Pre-approval is required by the Home Affairs Depart - ment for the content of any advertisement for any
competition arranged under and subject to the Licensing Authority requirements for a trade promo - tion competition, for it to be exempted from the game of chance competition prohibition under the Gambling Ordinance. 1.6 Intellectual Property and Publicity Rights Use of intellectual property is subject to the rights of the author in copyright to restrain unauthorised use of copyright material. The Personal Data (Privacy) Ordi - nance regulates the use of the name, picture, voice or likeness as personal data in advertising of any data subject without the prior written consent of the data subject. The Personal Data (Privacy) Ordinance further pro - hibits direct selling to a prospective customer with - out providing for express consent of the target with a communicated formula provided by the approaching data user for consent confirmation of the addressee The basic self-regulatory authority governing advertis - ing practices is the Association of Accredited Adver - tisers. It is a self-regulatory body to which all adver - tising agencies and advertisers belong, and imposes certain quality control upon advertising practices. 1.8 Private Right of Action for Consumers Any person, firm or company being the subject of negative advertising practices can take private legal action against the advertiser for publication of per - sonal data without consent of the owner. Action lies in the civil courts for damages, which must be proved. 1.9 Regulatory and Legal Trends The past 12 months have not seen significant trends and/or cases regarding deceptive advertising. How - ever, in mid 2023 an education centre with five ten - anted branches around Hong Kong had provided pre-paid tutorial programmes mostly registered under the Education Ordinance as private schools offering non-formal curriculum. Attendance was under pre- paid tuition fees. The five branches closed and the Customs and Excise Department (as the responsible controlling authority under the Trade Descriptions Ordinance) investigated whether the service provider to the solicited target addressee. 1.7 Self-Regulatory Authorities
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