Study On Tort Liability And Legal Regulation About Advertising Spam SMS

With the development of communication and computer technology, mobile phone has become essential part in people's lives. As an important communication channel, SMS becomes people's favorite due to its convenience and easy for use. Up to December 2010, the number of mobile phone users in our country had reached 0.76 billion. At the same time when SMS gives us a lot of convenience, however, it also produces a number of legal issues, chief of which is the harassment to users'lives due to advertising spam SMS. As regard to SMS, there is no specific law to regulate it and only some notifications from Ministry of Industry and Information Technology touch upon its management. Due to its new form of advertising, the "Advertising Act" of 1995 can no longer adapt to the development of SMS advertising. Therefore, advertising spam SMS is a blank spot of legal rules. It reflects the necessity and urgency of legal regulations on advertsing spam SMS that Zhao Shiwu accused Hebei Mobile and Beiren Group in 2008 and Sun accused 10086 of a Mobile Corporation in 2010. From summarizing the two legal cases, There is no explicit legal basis of dealing with these issues. And there are still controversies on many such issues. Combining foreign experiences, this article will analyse deeply these issues and put forward our viewpoints.Starting from example of cases, this article firstly defines the advertising spam SMS and discusses its characteristics and way of transmission. Aiming at the issues of advertising spam SMS, this article discusses whether advertising spam SMS constitutes infringement on users' rights of privacy, peace of life, property, and freedom of communication. On these basis, the responsibilities of telecom operators, advertisers, and advertising operators are analysed, and the judgements of the two example of cases are evaluated. It is also comprehensively analysed through a great many of papers that whether the telecom operators bear legal liabilities and how to bear. Finally, combining foreign experiences on administering advertising spam SMS, various systems suitable for advertising spam SMS are analysed. Aiming at the absence of the rules on advertising spam SMS in "Advertising Act" and legal rules relating SMS, ideas are brought up about the legislation and law enforcement for administering advertising spam SMS in our country.