인터넷상의 스팸메일 법적 규제 정비방향 = 관련 법익간의 연계성 분석을 중심으로

다국어 초록 (Multilingual Abstract)

The purpose of this paper is to suggest basic directions for the legislation of spam mail. A need for the legislation against unsolicited commercial mail over the internet has been raised from all walks of life because spam mail annoys recipients as well as internet service providers (ISPs). People are forced to spend a certain amount of time daily to delete spam stored in their mail boxes. Otherwise, they could not receive important mail due to the limited capacity of mail boxes. Internet users who expect e-mail from acquaintances tend to be upset by the unsolicited spam, The exposure of kids to a certain type of spam mail. mostly pornography. has worried a lot of people, too. The ISPs are complaining about the continuous accumulation of junk-mail which causes malfunction of their servers. resulting in a lot of financial loss.
Traditional legal approaches such as the Hudson Four Prong Test have been adopted to determine the scope of regulation on junk e-mail in the sense that the test has been employed by the courts in assessing the appropriate level of constitutional protection of commercial expressions. . This paper also tries to figure out the ad-hoc balancing interests related to spam mail. To this end, some constitutional rights such as freedom of expression and privacy are first carefully weighed against each other. Then the right of consumer protection as well as the right of compensation for damages ISPs might have from the accumulating spam mail is reviewed to assess the scope.
Innocent receivers often perceive uninvited spam mail as an invasion of private territory. The ISP's right of compensation due to economic losses resulting from the in-coming spam mail should be respected. Right of consumer protection is scrutinized, for some of spam mail could have deceptive, commercial information.
A spammer should be legally liable if he/she repeatedly sends unsolicited spam-mail to receivers, despite receivers' refusal of the mail. The repeated spam mail infringes on the human right for peace. Also, spammers who use fake-domain addresses as well as illegal. untruthful commercial information should be responsible for any actual or punitive damage to subscribers and/or ISPs. However, informative or solicited mails should be protected. One-time spam mail also should not be restricted unless it has deceptive advertisements or endorsements of illegal products. ISPs need to curb spam mail by playing an active role in suppressing it. In any case, ISPs should have a reasonable sense of judgment in controlling spam mail, in order to avoid legal conflicts about their roles in spam mail restriction.