Invasion of Privacy V. Commercial Speech: Regulation of Spam with a Comparative Constitutional Point of View
Huh, Soon Chul, Albany Law Review
We live in a flood of unsolicited commercial e-mail, or "spam." (1) The development of the Internet, "an international network of interconnected computers," (2) brings us "electronic mail," (3) which is one of the most powerful and important communicative tools we have ever had in our history. E-mail, like other methods of communication, enhances and reinforces the freedom of speech, which is one of the quintessential values in a free democratic society. Furthermore, it may be a very easy, low-cost, and efficient method for a small shop to advertise its commodities.
However, this very cheap and convenient method, which furthers the free exchange of information and ideas in cyberspace, also delivers us daily messages that we have not solicited. Most of the spam e-mails we receive are allegedly obscene materials or commercial solicitations. (4) It is true that trashing and deleting unsolicited spam consumes our precious time and annoys us. Furthermore, spam also inflicts harm on Internet service providers (ISPs) by consuming a great deal of memory space and hindering the traffic of data. (5)
According to an official report, each South Korean (Korean) "uses 3 e-mail accounts on average, and each e-mail account receives about 4.6 spam mails on average per day, which is a fifty-three percent decrease from the same period of the previous year (9.7 spam mails)." (6) To regulate spam, the Republic of Korea (Korea), one of the civil law countries, has frequently revised its anti-spam law; the "Act on the Promotion of Information and Communications Network Utilization and Information Protection, Etc." (PICNUIP). (7) Meanwhile, the U.S. Congress also enacted an anti-spam law; the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003" (Can-Spam Act). (8)
Then, what is the problem of spam from a constitutional perspective? On the one hand, some critics, overwhelmingly in Korea, claim that spam is so useless and harmful that it should be regulated by law, especially because it invades receivers' constitutional right to privacy. (9) Others, however, argue that it should be protected as commercial speech. (10) These arguments resemble the conflicting points of view about privacy between the continental law countries and the United States--that is, "dignity v. liberty." (11) In other words, it seems that spam is a kind of problem in which both the senders' and receivers' constitutional interests conflict.
In the meantime, the PICNUIP recently adopted "opt-in" (12) regulation over fax and telephone spam. However, in the United States, the Can-Spam Act maintains an "opt-out" (13) system. Among the legal regulations over spam, an "opt-out" solution may be preferable to "opt-in" legislation because e-mailers' commercial speech should also be respected.
II. THE CONCEPT OF SPAM
A. What Is Spam?
Spam is not a legal term and has different names such as "junk mail," (14) "bulk-mail," (15) or "unsolicited commercial e-mail" (UCE). (16) In general, it is conceded that spam must meet three criteria (as we can infer from its diverse nicknames): it must be unsolicited, it must be commercial in nature, and it must be sent in bulk. (17) However, with regard to these factors, deciding whether an e-mail is spam or not creates difficult problems.
First, the fact that the e-mail is "unsolicited" is an essential factor of most definitions of spam. (18) However, "[f]rom a technical perspective ... it may be ... difficult to assess whether an e-mail communication is unsolicited, particularly if the prior relationship is comprised of something other than a previous exchange of e-mail messages." (19)
Second, to be regarded as spam, an e-mail must be "commercial." The Can-Spam Act also requires a "commercial" trait. (20) However, other types of spam (i.e. "political spam") (21) do not demand this "commercial" trait. As to judging an e-mail's "commercial" character, "indirect as well as direct commercial content ought to qualify--for example, an e-mail message containing a review of a free web site that contains advertisements should be considered commercial if it is sent on behalf of the web site's operator. …