An Legal Analysis On Managing The Difficulties Of Phone Harassment

With phone harassment as “psoriasis” of the new era,answering cold calls and clearing spam messages have gradually become daily assignment of phone users.While operators have attempted to block spam messages by employing certain technologies,their efforts are far from effective.Mobile phone users normally avoid phone harassment by setting the blacklist and installing mobile phone blockers.However,mobile phone service providers may find it hard to accurately block nuisance calls with their call blockers,resulting in an embarrassing situation where mobile phone users fail to deal with their own business in a timely manner because strange phone numbers not stored in contacts and useful calls or messages are usually blocked.Though bothered by phone harassment both psychologically and financially,mobile phone users are usually at a loss when preserving their own rights,having no idea of against whom to claim rights.The identification criteria,legal nature,liability subjects,and accountability of phone harassment are all key difficulties.Furthermore,with regard to the governance of phone harassment,the difficulty lies in cracking down on false base station.With questions about phone harassment in mind,the author provides a case study of Ruan Yiyong's charge against China Mobile Guangdong branch,and analyzes a series of difficult problems regarding phone harassment in an attempt to figure out effective ways to deal with phone harassment and preserve the rights of mobile phone users to the largest extent.This thesis consists of three parts: introduction,body part and conclusion.This first part is introduction.In this part,the author explains the theoretical and practical meaning of this thesis.According to the latest report entitled Mobile Phone Safety 2016 issued by Tencent Mobile Manager,phone harassment has already become one of three major culprits of mobile phone safety,with virus and spam message as the other two.While CCTV has exposed behind-the-scenes plotting such as internet fraud via phone harassment,nonfeasance of operators in filtering fraud calls,and sales of personal information on 315 Evening Gala in 2015,the problem of phone harassment has not been effective addressed.Therefore,the author determines to elaborate on phone harassment and analyze the key difficulties one by one in anticipation for figuring out effective methods to deal with phone harassment and effectively preserve the rights of mobile phone users.The introduction is followed by the body part,which includes the following four sections.The first section is a brief introduction of the case.In this section,the author introduces the basic information and key controversies of Ruan Yiyong's charge against China Mobile Guangdong branch.The Defendant China Mobile Guangdong branch kept sending a large number of free messages to the accuser Ruan Yiyong,which exerted negative influence on his life and work.The accuser filed a tort suit in the court and claimed compensation for mental injuries after failing to persuade the defendant to stop sending messages.The court verified that the defendant's behavior constitutes a tort,and rejected the accuser's compensation claim for mental injuries.There are two key controversies in this case: the first is whether the defendant's behavior of sending free messages to the accuser constitutes civil tort;the second is whether the tortfeasor should assume the liability to pay compensation for mental injuries.The second section gives the definition of phone harassment.In this section,the author not only analyzes the identification criteria of phone harassment,but also provides the definition and classification of phone harassment.By summarizing previous literatures,the author considers users' subjective feelings,number of calls,and quantity of messages as the identification criteria of phone harassment,and the identification of phone harassment does not exclude those who are in special relationship with the users or with certain social status,such as family members,boyfriend,and girlfriend,etc.After analyzing such factors as user's subjective feelings,number of calls,quantity of messages,and caller identity,the author defines phone harassment as the act of harassing mobile phone users by means of making multiple repeated calls and sending messages,which makes mobile phone users feel quite irritated.Based on the different purposes of phone harassment,the author classifies phone harassment into three types,namely vicious real-life harassment,business marketing and promotion,and phone fraud.The third section analyzes legal liabilities of phone harassment.This part presents an analysis of legal nature,liability subjects,and accountability of phone harassment.As different types of phone harassment involve different legal issues,the author analyzes the legal nature of phone harassment respectively from the perspectives of civil tort,breach of contract law,criminal law,and administrative law.According to the four elements of crime constitution,phone harassment belongs to general tort.From the perspective of contract law,as telecom operators and businesses have entered into service contracts with mobile phone users,their breach of provisions as specified in the contracts constitutes a default.Law of the PRC on Penalties for Administration of Public Security and Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Fraud have provided relevant regulations on administrative penalties and criminal penalties for phone harassment.Liability subjects of phone harassment include operators,advertisers and misfeasors.In terms of accountability of phone harassment,the author thinks that due to the special nature of proof for phone harassment,the reversion of burden of proof shall be properly adopted.Based on the principle of presumed fault liability,mobile phone users may not only claim rights using eight methods of bearing tort liabilities in accordance with Article 15 of Tort Liability Law of PRC,but also claim compensation for mental injuries.In addition,those who commit phone harassment shall bear liabilities for breach of contract.The fourth section provides an analysis of the above case as well as lessons to be learnt from it.This part analyzes the key controversies of the case in combination with theories presented in the second and third section.The author thinks that the defendant's behavior of sending free messages to the accuser constitutes civil tort,and the tortfeasor should assume the liability to pay compensation for mental injuries.As phone harassment is a quite difficult problem of social governance,to address the plight of existing phone harassment by merely letting tortfeasors assume the liability from the perspective of civil liability is far from enough.Therefore,the author explores four legal controls including public interest litigation,more punitive compensation,greater efforts to crack down on false base station and construction of fast punishment way in an attempt to seek for approaches to deal with the predicament of phone harassment.