In this blog post, we examine the limitations of spam email regulation methods and the structural problems inherent in each system. We explore how to find a balance between freedom of expression and the protection of personal rights.
Spam emails refer to mass, repetitive commercial advertising emails sent for profit. Most spam emails contain harmful pornographic material or deceptive expressions, causing psychological discomfort to recipients. They also waste time and effort deleting unnecessary information and can lead to damages like personal information leaks. Furthermore, since spam emails are transmitted through information and communications service providers, the costs associated with sending them often end up being borne by these providers. For these reasons, spam emails tend to be perceived as something that should naturally be prohibited.
However, several complex issues exist regarding the prohibition of spam mail. First, there is the view that spam mail, being a form of expression, should be protected as a fundamental right under the Constitution. According to this view, completely blocking spam mail constitutes excessive regulation of the sender. Another argument raised is that spam mail can be subject to the recipient’s right to know and their right to control their personal information. That is, since spam mail may contain information the recipient needs, blocking its delivery could infringe upon the recipient’s right to freely pursue and select the information they desire.
The prohibition of spam mail sparks debate not only at the level of individual fundamental rights but also at the societal level. If spam mail is viewed as advertising, a fundamental business activity for companies, then prohibiting it could infringe upon companies’ freedom of business operations. Particularly, spam mail has the characteristic of being inexpensive to advertise, so prohibiting it could result in restricting the business opportunities of small businesses more significantly than those of large corporations.
Consequently, discussions on spam regulation have centered on the question of which value should take precedence: the sender’s freedom of expression or the recipient’s right to personal dignity. Spam regulation methods are generally divided into opt-in and opt-out approaches. The former, implemented in EU countries including the UK, requires sender consent even if advertising emails are not fundamentally prohibited. However, this approach incurs costs for both senders and recipients during the consent process, and studies have shown that spam emails did not decrease after implementation, suggesting its regulatory effectiveness may be limited.
Conversely, the opt-out system allows spam emails to be sent initially but prohibits further sending if the recipient opts out. This system is implemented in the United States. However, this method faces challenges including difficulty distinguishing spam from legitimate advertising emails, inconvenience and costs for recipients when opting out, and difficulty controlling illegally resent emails. There is also concern that adolescents, who are physically and mentally vulnerable, could be indiscriminately exposed to spam emails and suffer harm.
In South Korea, the opt-out method is adopted in principle, but legal provisions exist to address its shortcomings. Current law mandates that when delivering advertising information, the sender must specify the type and main content of the information, the sender’s name and contact details, the source of the collected email address, and measures and methods for easily indicating an opt-out preference. Furthermore, it prohibits the sending of advertising emails containing harmful content for minors and bans the use of programs or technical devices to collect email addresses without permission for sending commercial advertising emails. Violations are subject to criminal penalties or fines. However, concerns have been raised that spam senders continuously develop sophisticated ways to circumvent these regulations, making effective spam control difficult through legal regulation alone and complicating civil remedies for recipients. Amid this situation, arguments persistently call for the adoption of an opt-in system.
