Invasion of Privacy v. Commercial Speech?; Regulation of Spam with a Comparative Constitutional Point of View
The growth of the Internet makes "electronic mail" one of the most convenient and useful communicative means in modern society. However, it also delivers us spam, which is allegedly obscene materials or commercial solicitations, etc. Then, on constitutional perspective, what is the problem of spam? Some critics, especially in Korea, in the one hand, have claimed that spam is so useless and harmful that should be regulated by law especially because it invades recipients' privacy. Others, on the other hand, have argued that it should be protected as commercial speech. These arguments resemble the conflicting points of view about privacy between the continental law countries and the U.S., that is, "dignity v. liberty."
Like almost all controversial issues, this problem seems to be resulted in balancing test, which is preferred to the other. However, if the most desirable way is striking a balance between the conflicting interests, how can we do that? Above all, recipient's intent, namely a chance to self-determination, seems to be the most important factor. It seems plausible that the commercial speech of e-mailers should be protected until the recipient's expression of his or her determination to object receiving spam. His or her right to privacy, thereafter, should be protected from unwanted invasion. This seems to be the less restrictive method, and allows privacy and commercial speech to co-exist. Therefore, at least, "opt-out" method is seems more desirable than "opt-in" one.