Expert analysis of spam

In response to the proliferation of spam messages, Du Yanguo, a lawyer of Sichuan Codex Law Firm, wrote that short message service providers provide paid information services without authorization, which is equivalent to commercial "buying and selling", infringing on users' right to choose consumption and know in advance, and infringing on users' interests. "Spam messages are suspected of infringing on others' peace, freedom of communication, privacy, protection of personal information, freedom of consumption and other rights. The infringement caused by the operator sending spam messages to users belongs to the direct infringement of the operator. "

However, it is embarrassing that although spam messages have been rampant in China, the follow-up of relevant laws and regulations is seriously lagging behind.

In 2000, China promulgated the Telecommunications Regulations, but there is no clear legal norm for spam messages in the regulations. In the Notice on Standardizing Short Message Service issued in 2004, only some normative opinions were put forward on the problem of spam messages, which lacked actual legal effect.

Liu Junhai, director of the Institute of Commercial Law of Renmin University of China, believes that due to loopholes in China's legislation, the legal basis for consumer rights protection is insufficient, especially the difficulty for consumers to provide evidence and the small amount of the subject matter, it is difficult to properly control spam messages through the legal level.

Liu Honghui, a lawyer of Beijing Jinghua Law Firm, hit the nail on the head and pointed out that the legal supervision of spam messages basically stays in an irregular vacuum zone.

In sharp contrast to China's laissez-faire attitude towards spam messages, some developed countries have formulated corresponding legal severe punishment mechanisms. For example, the relevant laws in the United States stipulate that those who send spam messages in violation of regulations will be fined up to 6 million US dollars, and even severely punished by imprisonment. In South Korea, sending spam messages without users' consent will be punished with a maximum penalty of about 65,438 RMB +0.8 million RMB.

Many insiders believe that there are many "blind spots" in China's relevant laws and regulations, and the supervision and punishment of relevant departments are almost "blank", which provides a very "relaxed" external environment for the proliferation of spam messages.

Some experts believe that the Constitution protects citizens' freedom of communication, and point-to-point short messages belong to personal communication. The legal basis for telecom enterprises to check, monitor and intercept personal short messages is insufficient. The National People's Congress's Decision on Strengthening the Protection of Network Information initially defined the definition of spam messages, but it did not specify the way for users to confirm or refuse to receive information, and the corresponding responsibilities of information publishers and operators, nor did it specify law enforcement departments, law enforcement processes, law enforcement penalties and consumer compensation.

Many people in the industry also said that there is no unified personal information protection law in China, and the laws on personal information protection are scattered in various separate laws, which have not really played a role in protecting personal information. In addition, China's current laws and regulations do not clearly stipulate the obligations or responsibilities of telecom operators in protecting users' information security and privacy, which makes spam messages "popular".

As for the spam messages frequently pushed, the customer service staff of China Mobile, China Telecom and China Unicom told the Economic Information Daily that there is indeed a situation of sending spam messages to customers' mobile phones at will, and there is no better way than customers reporting and blacklisting. China Telecom Hainan Branch even sent a text message to remind reporters that "the spam message you received, I suggest you don't pay attention to him!"

Lou Yaoxiong, director of the Communication Law Research Center of Beijing University of Posts and Telecommunications, and other experts believe that the existing telecom norms have extremely limited constraints on telecom operators. For example, the Regulations on the Protection of Personal Information of Telecommunications and Internet Users, which was just implemented in 20 13, only penalizes the disclosure of personal information. "Telecommunications management agencies shall be ordered to make corrections within a time limit according to their functions and powers, given a warning, and may impose a fine of 1 10,000 yuan but not more than 30,000 yuan, and make an announcement to the public; If a crime is constituted, criminal responsibility shall be investigated according to law. This kind of punishment is difficult to cause enough deterrence.

Dai Hong, vice president of Hainan Public Relations Association, and many other interviewees believe that up to now, it is rare to see any telecom operator or spammer being severely punished by relevant departments for pushing spam messages on a large scale, which condones the proliferation of spam messages to some extent.