Privacy Law and Policy Reporter
Anti-spam regulations in Korea
South Korea’s extensive information privacy laws, and in particular the Act on Promotion of Information and Communication and Communications Network Utilization and Information Protection of 2001 that applies to the private sector, were outlined in Yi and Ok ‘Korea’s personal information protection laws’  9(9) PLPR 172. This article discusses the anti-spam provisions of that Act. Korea’s new laws are perhaps the strongest of any Asian countries — General Editor.
More and more people are now using the world wide web, making the internet an increasingly integral part of everyday life. Many people now have internet access and are using it to exchange text files, photos, videos and music. During the past few years, the number of internet users has increased worldwide with incredible speed. As of the end of December 2001, the high speed internet user rate in Korea was 17.16 per cent, the highest in the world, followed by Canada (8.4 per cent), Sweden (4.96 per cent), the United States (4.47 per cent) and Japan (2.23 per cent). As of the end of July 2002, about 26 million people in Korea, which is equivalent to 58 per cent of the total population, had internet access and were using it 12 hours a week. Sixty-two per cent were using the internet everyday (source: Korea Network Information Center, October 2002).
Since one of the most widely used functions of the internet is email, it is no surprise that as the number of individuals using the internet increases, the number of existing email accounts rises as well. Eighty-five per cent of internet users in Korea, around 22 million people, report that they have email accounts. Almost every individual and business, from large corporations to small enterprises, maintains multiple email addresses. Email is a powerful medium for expressing ideas, receiving information, sharing opinions and supporting commerce. Email is a convenient way for businesses to address customer service issues, send invoices and receipts, and maintain intra-office communications. The dramatic increase in email use can be attributed to its role as a quick and relatively inexpensive form of communication. Handwriting letters and waiting for postal services to deliver important documents seems somewhat archaic in today’s technological world. Email has developed as the primary method of communication for personal and, more importantly, business use in 2003 and will surely increase in the future.
However, while the purpose of email is to make communication more convenient, email does not always provide the increased efficiency desired. For example, with postal mail and most other forms of unsolicited advertising, the advertiser pays to send the ad and the consumer is merely burdened with the inconvenience or annoyance of receiving it. The big difference between these forms of unsolicited advertising and spam is that spam shifts the cost of the advertisements directly to the consumer. This cost shifting is the greatest objection among internet users and internet service providers (ISPs).
In Korea, as problems of spam are becoming ever larger, self-regulation and legal measures for preventing spam were required. In the legal arena, the Korean Government tried to regulate transmission of advertisements and prescribed provisions for anti-spam in art 50 of the Act on Promotion of Information and Communication and Communications Network Utilization and Information Protection of 2001 (the Act).
The Act provides that:
(1) no person shall transmit advertising for the purpose of soliciting business against the addressee’s explicit rejection of such information.
(2) Any person who intends to transmit via email any advertisement for the purpose of soliciting business under paragraph (1) shall expressly indicate in the email the matters stipulated in each of the following subparagraphs, as prescribed by the Ordinance of the Ministry of Information and Communication, the objective of the mail and major contents thereof, the name and contact means of the addressor, and instructions to reject receipt of future advertisement information.
Strengthened measures introduced in 2002 and 2003
Because the methods or skills of the transmission of spam are increasingly becoming diversified technically, and since spammers typically disregard the seriousness of spam, the amount of spam did not decrease. For this reason, the National Assembly promulgated a revised Act (the new Act) on 18 December 2002 to tighten control over spam. Except for several provisions, it was entered into force on 19 January 2003 and carries severe penalties. For example, it newly establishes criminal charges and raises fines to 10,000,000 won (approximately $8000) from the previous limit of 5,000,000 won (approximately $4000). However, it still maintains the ‘opt-out’ method to regulate the transmission of advertisement information.
Strengthened control of illegal labelling of email
Article 11 of the Ordinance of the Ministry of Information and Communication of the Act contained obligations stipulating that the initials ‘ADV’ must be included in the mail header and required that clear instructions explaining how to reject future mails must be provided, along with a relevant addressor name, telephone number and contact person.
As many spammers sent emails with irregular labels such as ‘A*D*V’ or ‘A~D~V’ in spite of the labelling obligation under the Ordinance, the Ministry of Information and Communication (MIC) revised the provision in 2002 so that it provides that no senders of advertisement emails shall create irregular forms of labels. The revised provision also requires that senders include the abbreviation ‘ADLT’ (to indicate adult content) in the mail header to protect minors from exposure to adult content. Furthermore, senders shall provide the recipient with a clear instructions for how to reject future emails.
The Act also encouraged Korean companies and individuals to insert English language buttons or links with which foreign users may use to block future spam from the same source. These stipulations have been getting positive reviews.
Those who violate the anti-spam regulation by placing misleading markers in the header could be ordered to take necessary corrective measures or be fined up to 5,000,000 won ($4000).
Revised the definition of illegal spam
Generally, ‘spam’ refers to unsolicited commercial messages distributed via email. Here, within the Korean legal system, unsolicited messages (advertisements for the purpose of soliciting business) via telephone, facsimile, or other media prescribed by Presidential Decree can be included in such a definition. Further, those messages sent to recipients in violation of the law are also defined as spam.
In short, the term ‘spam’ in Korea is defined as ‘any commercial advertisement sent via email, telephone, facsimile, or other media prescribed by Presidential Decree transmitted to a consumer against consumer’s expressed rejection and therefore in violation of the law’.
Strengthened protection of minors from spam
Article 42 of the new Act stipulates that:
... providers of information and communication services shall be prohibited from transmitting to minors, under subparagraph 1 of Article 2 of the Minor Protection Act) advertisements implying media materials harmful to minors as described in subparagraph 4 of Article 7 of the Minor Protection Act, which are prescribed as harmful to minors in accordance with subparagraph 3 of Article 2 of the same Act, via email, telephone, facsimile, or other media prescribed by Presidential Decree.
Anyone sending commercial emails containing obscene, drug related or graphically violent content, as proscribed by the Minor Protection Act, shall face imprisonment for up to two years and/or a fine of up to 10,000,000 won (approximately $8000).
Expansion of media types to control spam
Prior to the promulgation of the new Act, emails had been subject to regulation to prevent commercial advertisements. While the fast development of information technology has resulted in a variety of new media that can transmit messages such as SMS and SM-Caster (messenger spam), the previous Act could not be used to address the spam issues of these new technologies. The fast spread of mobile handset spam in Korea is one of the largest issues. Korea presently has more than 30 million mobile phone subscribers, and those users exchange millions of short messages through their high powered handsets, something that spammers currently want to exploit. For this reason, it is required that the new Act regulates new types of media used for sending messages.
Paragraph (2) of art 50 of the new Act provides that any person who intends to transmit by email, telephone, facsimile, or other media prescribed by Presidential Decree any advertisement information for the purpose of soliciting business under para (1) shall expressly indicate the matters falling under each of the following subparagraphs in the advertisement information under the conditions as prescribed by the Presidential Decree: the types of the transmission information and major contents thereof; the name and contact means of the addressor; the source of email address harvested (pertinent to email spam); and matters concerning the easy methods to reject receipt of future advertisement information.
Any person who has failed to indicate or made a false indication in contravention of art 50(2) shall be subject to a fine of up to 10,000,000 won (and approximately $8000).
Senders using the mobile phone network should follow the revision in order to avoid prosecution and should specify the contents of their mail by placing the word ‘advertisement’ in the header and their contact information. (This stipulation shall enter into force on 19 June 2003.)
In addition, para (5) of art 50 provides that commercial advertisement senders shall be required to install toll-free numbers so that recipients may express their intention to not receive any spam in the future. Those who continue to send spam to users’ handsets, despite the users’ express rejection, will be subject to fines.
Prohibition of technical manipulation to avoid refusal of further reception
Technical manipulation to avoid denying further reception makes filtering difficult. If advertisement senders try to hide by technical manipulation such as forgery of mail headers and mail server relays to avoid legal regulation, the overall security of the internet could be threatened as well. Header and routing information must be accurate, and senders of advertisements must provide accurate contact information.
Paragraph (4) of art 50 of the new Act provides that it shall prohibit senders of advertisement information for the purpose of soliciting business from performing any technical manipulation so as to avoid denying further reception.
Any person who performs any technical manipulation in contravention of art 50(4) shall be punished with a fine of up to 10,000,000 won (approximately $8000).
Prohibition of automatic generation of contacts
Many spammers generate email addresses or telephone numbers automatically and en masse by using specialised software without the consent of recipients.
Paragraph (6) of art 50 of the new Act provides that no one shall transmit advertisement information for the purpose of soliciting business by using software or other technical equipment that generates contacts by collating with numbers, codes, or characters.
Any person who transmits advertisement information in contravention of art 50(6) shall face a fine of up to 10,000,000 won (approximately $8000).
Prohibition of unwanted email address harvests from websites
Harvesting email addresses from public sites on the internet is one of the biggest problems in Korea. Email addresses obtained by software are a major target for spam. Here the main problem is that the email lists are collected from public spaces without the knowledge of the email recipient or the administrator of the site containing the information.
To prevent harvesting of email addresses, para (1) of 2 of art 50 of the new Act provides that no person shall harvest email addresses from web pages that expressly prohibit automatic harvesting of email addresses with software or other equipment.
The act of sharing, selling, exchanging or providing lists of email addresses harvested from internet bulletin boards that prohibit such activity is also prohibited. Paragraphs (2) and (3) of 2 of art 50 proves that:
(2) No person shall sell or circulate email addresses in violation of paragraph (1);
(3) No person shall knowingly use email addresses that had been automatically harvested for the purpose of sale or exchange as stipulated by paragraphs (1) or (2) regarding transmission of advertisement information.
Violators shall be subject to a fine of up to 1,000,000 won (approximately $8000) for the extraction of email addresses without the express permission of a subject website. This statute also applies to any individual who sells, offers or uses such automatically harvested email addresses for transmitting advertisements.
Website operators are now encouraged to encrypt the addresses of those who post messages on online bulletin boards.
ISPs’ right of service denial against spammer
Providers of information and communications services (ISPs) or web mail service providers of Korea have made efforts to prevent spammers from securing internet protocol addresses of major bulk mail senders in order to regulate illegal or relentless advertisement mailings over the web. All the efforts they invested seem to have had little effect.
The new Act allows an ISP to deny services if it has a reasonable suspicion concerning serious, repetitive obstruction by large influxes of spam. In this case, there must be service stipulations or contracts explaining ISP counter measures and conditions for denial of service.
Paragraph 4 of Article 50 of the new Act provides that:
(1) ISPs may deny certain services at their own discretion where there is or will be obstruction caused by repetitive transmission spam, or if users do not want to receive such information;
(2) Where ISPs intend to deny certain services under paragraph (1), they shall indicate matters of their right of denial in their contract.
(3) Where ISPs intend to deny certain services under paragraph (1), they shall give notice to the user of that service or persons having an interest.
As e-commerce develops further, more and more spam is unilaterally and randomly dispersed. As spam prevails, the privacy of individuals is severely infringed upon, and obscene adult spam has an adverse effect on the well being of minors. Since a number of public complaints have been raised from foreign countries regarding spam originating from Korea, the national image may also be damaged.
As the Korean Government is aware of the gravity of the situation raised by spam, it has decided not to ignore the problems. The Government is lending its full support to self-regulation measures that include inspection of mail server relays and the spread of anti-spam programs designed to interrupt the automatic harvesting of email addresses. Additionally, in 2002, the Government revised the Act of 2001 to strengthen spam regulations.
The related provisions include prohibition of the transmission of ‘media materials harmful to minors’, expansion of the number of media types for regulating spam, prohibition of technical manipulation to avoid denial of further reception, prohibition of automatic generation of contact points, prohibition of harvesting email addresses from websites, and the right of ISPs to deny services to spammers. l
Hyu-Bong Chung PhD is the Secretary-General of the Personal Information Dispute Mediation Committee, South Korea.