Marketing SMS "bombing" consumers, how to manage
2021-11-09
"'double eleven 'is a grand ceremony of taking steps to buy first, reducing 60 for every 200, and rush to buy in the last five hours..." in recent days, many people have frequently received preferential activity SMS from merchants, and the frequency has increased with the approaching of "double eleven". According to media reports, in recent years, the marketing spam SMS complaints during the "double 11" promotion show a centralized outbreak, and the relevant complaints on e-commerce platforms account for up to 90%. So, can businesses frequently send promotional messages to users or promote products by telephone? What are the legal boundaries for businesses to use users' personal information? In this regard, the reporter interviewed relevant experts. Do not send marketing messages without the consent of consumers The reporter learned that on October 25, the Ministry of industry and information technology held an administrative guidance meeting on standardizing the "double 11" SMS marketing behavior of e-commerce platform. The meeting required that the e-commerce platform should immediately and comprehensively check and correct the SMS marketing behavior of retail, finance and other related products, and shall not send marketing SMS without the consent or request of consumers. "In fact, this is not the first time that the 'preventive injection' has been made in advance. Since 2008, the Ministry of industry and information technology has organized and carried out special actions to deal with spam messages for many times." Zhao Zhanzhan, deputy director of Beijing Zhilin law firm and special researcher of the intellectual property research center of China University of political science and law, said in an interview with reporters a few days ago that for the problems of marketing calls and spam messages disturbing residents, China has many corresponding legal norms. The decision of the Standing Committee of the National People's Congress on strengthening the protection of network information adopted in 2012 stipulates that commercial electronic information shall not be sent to the recipient's fixed and mobile phones without the recipient's consent or request. The civil code, which came into force on January 1 this year, stipulates that, unless otherwise provided by law or expressly agreed by the obligee, no organization or individual shall invade the private life of others by means of telephone, SMS, instant messaging tools, e-mail, leaflets, etc. The personal information protection law, which came into force on November 1, emphasizes that personal information processors should protect consumers' right to know and choice, and stipulates the processing rules of personal information, including the need to inform the processing purpose, processing method and type of personal information to be processed when collecting personal information, and with the consent of users "From this series of legal provisions, it is not difficult to see that the behavior of enterprise platforms and businesses sending marketing messages without consumers' permission infringes on users' rights and interests, which has violated the law," Zhao said. It is illegal to obtain the user's consent by registering "default" "Some businesses have no fear to send marketing messages because they think they have obtained the user's consent." Zhao Zhanzhan told reporters that some platforms default that registered users "agree" to send marketing information directly, and these "consent" terms usually need to turn back a few pages without obvious prompt. New registered users usually click "confirm" before they notice So businesses can use this vulnerability to send marketing messages. "At present, this rule loophole has been blocked by the newly implemented personal information protection law," Zhao Zhanzhan said, in order to prevent consumers from being "agreed" without knowing it Article 14 of the personal information protection law stipulates that if an individual agrees to process personal information based on his / her consent, the consent shall be made voluntarily and clearly by the individual on the premise of full knowledge; Article 23 stipulates that if a personal information processor provides the personal information processed by him / her to other personal information processors, he / she shall inform the individual of the name or name, contact information and processing information of the receiving party Purpose, processing method and type of personal information, and obtain personal consent. "In other words, after the implementation of the personal information protection law, it is illegal for the platform to obtain the general consent of consumers only through the default registration method, and explicit consent is required," said Zhang Jihong, a professor at Shanghai University of political science and law. How to make the penalty "live" Although relevant laws and regulations have regulated personal information protection and spam message management, the annoying marketing message is still banned repeatedly. "In fact, there is no lack of penalties for businesses or SMS service providers who are good at sending spam marketing messages." Zhang Jihong pointed out that according to the provisions of the advertising law, if any unit or individual sends an advertisement by electronic information without the consent or request of the party concerned, the relevant departments shall order it to stop the illegal act and impose a fine of more than 5000 yuan and less than 30000 yuan on the advertiser. According to the regulations on management of short message service issued by the Ministry of industry and information technology in 2015 , short message service providers and short message content providers shall not send commercial short messages to users without their consent or request. If they violate these Provisions, the telecommunications regulatory authority shall order them to make corrections within a time limit, give a warning, impose a fine of not less than 10000 yuan but not more than 30000 yuan, and make a public announcement to the public. "The repeated prohibition of marketing SMS is mainly due to the excessive tolerance of law enforcement, few platforms or businesses are punished, and the illegal cost is too low, allowing these illegal acts in a disguised form." Zhao Zhanzhan said. Previously, it was reported that Ouhai branch of a Chinese communication operator adopted "combined label" through big data analysis The method of matching users screened 35000 target customers for a commercial complex in Wenzhou in its company's large database. It sent commercial short messages without the consent of the target customers, making an illegal profit of 4970 yuan. It was warned by Wenzhou market supervision and administration, confiscated the illegal income, and fined 29800 yuan. "Even if it was fined, the punishment is still light," Zhao said. In this regard, Zhang Jihong suggested that while strictly enforcing the law against illegal businesses, we should vigorously improve the punishment of illegal SMS service providers, so that they dare not commit it again. The reporter learned that some procuratorial organs have actively tried to bring personal information protection into the field of procuratorial public interest litigation. "As one of the new areas of procuratorial public interest litigation, personal information protection cannot be fought alone." according to Lin Shuang, procurator of Lucheng District Procuratorate, Wenzhou City, Zhejiang Province, it is necessary to form a "public interest litigation + follow-up supervision + governance suggestions + special research + cooperation mechanism" The closed-loop protection mode of personal information can effectively control the chaos of illegally obtaining personal information for commercial marketing and even illegal crimes, and effectively safeguard the legitimate rights and interests of the people. (Zhang Zixuan, Li Rui) (outlook new era)
Edit：Luo yu Responsible editor：Wang xiao jing
Source：Daily Prosecutor’s office
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