Marketing SMS "bombards" consumers, how to manage?

"'Double Eleven' step-by-step ceremony to buy first, every 200 minus 60, the last 5 hours, come and buy..." In recent days, many people have frequently received text messages from merchants, and as "Double Eleven" is approaching, the frequency is increasing. According to media reports, in recent years, marketing spam SMS complaints during the "Double Eleven" promotion have shown a concentrated outbreak, and related complaints on e-commerce platforms account for up to 90%. So, can merchants frequently send users promotional sms or promote products by phone? Where are the legal boundaries for merchants' use of users' personal information? In this regard, the reporter interviewed relevant experts.

Marketing text messages cannot be sent without the consent of the consumer

The reporter learned that on October 25, the Ministry of Industry and Information Technology held an administrative guidance meeting on regulating the "Double Eleven" SMS marketing behavior of the e-commerce platform. The meeting requested that e-commerce platforms should immediately and comprehensively self-examine and self-correct the SMS marketing behavior of retail, finance and other related products, and must not send marketing SMS without consumer consent or request.

"In fact, this kind of initiative to do a 'preventive shot' in advance is not the first time, since 2008, the Ministry of Industry and Information Technology has organized many special actions to control spam SMS." Zhao Zhanzhang, deputy director of Beijing Zhilin Law Firm and a 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 China has many corresponding legal norms for the problem of marketing calls and spam text messages.

The Decision of the Standing Committee of the National People's Congress on Strengthening the Protection of Online Information, adopted in 2012, stipulates that commercial electronic information may not be sent to the recipient's fixed or mobile phone without his or her consent or request. The Civil Code, which came into effect on January 1 this year, stipulates that, unless otherwise provided by law or with the explicit consent of the right holder, no organization or individual may harass the private life of others by telephone, text message, instant messaging tool, e-mail, leaflet, etc. The Personal Information Protection Law, which came into effect on November 1, emphasizes that personal information processors should protect consumers' right to know and choose, and stipulates the rules for the processing of personal information, including the need to inform the purpose of processing, the method of processing, the type of personal information processed, etc., and with the consent of users... "It is not difficult to see from this series of legal provisions that the behavior of enterprise platforms and merchants sending marketing sms without the permission of consumers infringes on the rights and interests of users and has violated the law." Zhao Zhanzhan said.

to register the "default" means

It is not lawful to obtain the consent of the user

"Some merchants send marketing text messages without fear because they think they have the consent of users." Zhao Zhanzhan told reporters that some platforms default registered users to "agree" to send marketing information directly, and these "consent" clauses usually need to turn a few pages back, and there is no eye-catching significant prompt, and newly registered users usually click "confirm" before they notice, so merchants can use this vulnerability to send marketing SMS.

"At present, this kind of rule loophole has been plugged by the personal information protection law that has just been implemented." Zhao Zhanzhan said. In order to avoid consumers being "consented" without their knowledge, Article 14 of the Personal Information Protection Law stipulates that where an individual consents to the processing of personal information, the consent shall be voluntarily and explicitly made by the individual on the premise of full knowledge; Article 23 stipulates that where a personal information processor provides other personal information processors with the personal information it processes, it shall inform the individual of the recipient's name or name, contact information, processing purpose, processing method, and type of personal information, and obtain the consent of the individual.

"That is to say, 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 method of registration, and explicit consent is required." Zhang Jihong, a professor at the Shanghai University of Political Science and Law, said.

How to make the penalty "charged"

Although relevant laws and regulations have regulated the protection of personal information and the management of spam SMS, the annoying marketing SMS messages are still repeatedly prohibited.

"In fact, whether it is for merchants or short message service providers, there is no shortage of penalties for spamming marketing text messages." Zhang Jihong pointed out that according to the provisions of the Advertising Law, if any unit or individual sends advertisements to the parties by electronic information without their consent or request, the relevant departments will order them to stop the illegal acts and impose a fine of between 5,000 and 30,000 yuan on the advertisers.

According to the "Regulations on the Administration of Communication Short Message Services" 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, and if they violate these provisions, the telecommunications management agency shall, in accordance with its authority, order corrections within a specified period of time, give a warning, and may also impose a fine of between 10,000 and 30,000 yuan and announce it to the public.

"Marketing text messages have been repeatedly banned, mainly because of excessive tolerance in law enforcement, few platforms or merchants have been punished for this, and the cost of violating the law is too low to allow these illegal acts in disguise." Zhao Zhanzhan said. Previously, there were media reports that Ouhai Branch, a Chinese communication operator, through big data analysis to take the method of "combination label" matching users, screened 35,000 target customers for a commercial complex in Wenzhou in its company's large database, and sent commercial text messages without the consent of the target customers, illegally profiting 4970 yuan, which was warned by the Wenzhou Municipal Market Supervision and Administration Bureau, confiscated the illegal gains, and fined 29,800 yuan. "Even if you are punished, the punishment is still relatively light." Zhao Zhanzhan said.

In this regard, Zhang Jihong suggested that while strictly enforcing the law against illegal businesses, it is even more necessary to vigorously increase the punishment of illegal short message service providers, so that they are too painful to dare to commit crimes again.

The reporter learned that some procuratorial organs have actively tried to incorporate 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." In the view of Lin Shuang, procurator of the Lucheng District Procuratorate in Wenzhou City, Zhejiang Province, it is necessary to form a closed-loop protection model for personal information of "public interest litigation + follow-up supervision + governance suggestions + special research + collaboration mechanism", effectively control the chaos of illegally obtaining personal information for commercial marketing and even illegal crimes, and effectively protect the legitimate rights and interests of the people.

Procuratorial Daily Zhang Zixuan Li Rui

Source: Procuratorial Daily Justice Network