Conflicts And Eliminations Between Spam Message Tort And Protection Of Privacy

Since the birth of the short information technology, it has made communication easier and faster. As a by-product of information technology, spam messages have spread everywhere in people's daily life, which has reached a very serious degree. There is still a lag on our country's privacy both in legislation and judicial practices, and it isn't a statutory right in China. However, the mainstream views and legal development trends suggest that privacy should be a statutory right and a worldwide right being recognized. Spam messages may contain other's privacy, and the behavior of sending spam message may disturb the receiver's tranquility right. It can be said the spread of spam message has become a barrier before privacy protection. The article attempts to discuss the conflicts and contradictions between spam message tort and protection of privacy, and to eliminate the conflicts from many aspects. At first, the article analyzes the contents and status of spam message and privacy in China. Moreover, the article combines the two things to analyze the tort of privacy caused by spam message. At last, I attempt to seek the countermeasures to govern spam message and to protect privacy.In concrete, the article gradually discussed the subject from four parts. At first, The first part make clear the conception of short message and spam message, which is the basis of our study's framework. At the same time, the section also outlines the characteristics of spam message, including worthless garbage message content, receiving passively, influence in extensive sphere and a certain social harm, and so on. In addition, we classify the spam message by its content is legal or not, in order to correspond with privacy's two aspects. Based on academic debate on privacy and many law in different countries, the second part summarizes the content of privacy, fixes the position of tranquility right, analyzes the current status and development of privacy in China and expects the Civil Code can protect privacy comprehensively, rigorously and directly. In the basis of the analysis on the actual perplexity and the protection status of privacy invaded by spam message, the third part focuses on the composition and responsibility. I think the compositions of privacy tort caused by spam messages contain the illegal acts, the damage results, the causal relationships and the subjective faults. In addition, this part also discusses the mains of tort, the principle of attribution, as well as the exemptions. I advocate the attribution should be analyzed in accordance with the main of tort and their subjective attitudes. Drawing on the experience of other countries, the fourth part tries to mediate and eliminate the conflicts and contradictions between privacy and spam messages. The ultimate purpose is that the short message services enable a high-speed development, at the same time, the tort can be avoided and the privacy be adequately protected. Therefore, we should use a multi-pronged approach to protect privacy in the time of spam messages spread, and the most comprehensive and important means is the legal regulation and restraint. Finally, in view of the status of Chinese spam messages governance and privacy protection, we propose real-name system for mobile phone network, the establishment and improvement of report system of spam messages and personal information protection system, legislation to regulate advertising chaotic short messages, infringement relief system of spam messages and speeding up consideration and adoption process of "Telecommunications Act" and other specialized regulations about SMS. At the same time, privacy should be turned into a statutory right in Chinese future Civil Code and be protected comprehensively.