"Zhang San has been very distressed this week because the browser that comes with the phone he just purchased often pops up advertisements unconsciously. After Zhang San clicks the" "Close" "button in the upper right corner of the advertisement, he will instead jump to the app store page and automatically download the app software recommended by the advertisement, which costs a lot of traffic. After Zhang San selects the setting of" "Close any product advertisements" "in the browser,", Browsers still send a large number of eye-catching spam advertisements such as product promotions to them, and a large amount of junk information is accumulated in the "notification bar" of mobile phone pages, covering up the communication information such as chat that Zhang San needs to focus on, causing great trouble to Zhang San's life.

Lawyer Analysis

The "User Agreement" of the mobile phone clearly states that the system of the mobile phone was originally created by the mobile phone merchant of the brand, and the mobile phone system includes system services and software such as its own browser. According to relevant regulations such as the Interim Measures for the Administration of Internet Advertising and the Advertising Law of China, the mobile phone of this brand infringes on the legitimate rights and interests of Zhang San. The analysis is as follows:

1、 Infringement of Zhang San's Right to Know

Mobile phone merchants should obtain the user's consent before downloading an application. However, after Zhang San clicks the "Close" button in the upper right corner of the advertisement in the browser, the advertisement does not close. Instead, a link similar to web browsing pops up, and the relevant app is automatically downloaded. In violation of Article 8 of China's Interim Measures for Internet Advertising Management, advertising is published and sent using the Internet, without affecting the user's normal use of the network. Advertisements posted in the form of pop-ups on Internet pages should be prominently marked with a closing sign to ensure that they are closed with one click. It is not allowed to trick users into clicking on advertising content in fraudulent ways. Without permission, it is not allowed to attach advertisements or advertising links to emails sent by users.

2、 Infringement of Zhang San's Right to Peace

Whether to infringe on Zhang San's right to peace, there are two distinct views in the actual case. The first is that in this case, mobile phone merchants have infringed on the user's right to peace. As represented by the case of Chen Hang and Shanghai Dream Seeking Company's network infringement liability dispute, China's protection of the right to peace usually includes two aspects: one is the tranquility of a natural person's private life, and the other is private information that a natural person does not want to be known to others. According to Article 1033 of the Civil Code, unless otherwise provided by law or explicitly agreed by the obligee, No organization or individual may engage in the following acts: (1) Using phone calls, text messages, instant messaging tools, email, leaflets, and other means to intrude on the privacy and tranquility of others On the premise that Zhang Sanming clearly refused to accept the promotion, the mobile phone merchants of this brand frequently sent information and affected Zhang Sanming's access to other important information, which fully conformed to the characteristics of infringing on their personal rights and interests such as their right to peace.

The second view is that mobile phone merchants have not infringed on users' right to peace. Taking the product liability dispute between Fanwailou and Xiaomi Company as a representative, whether users' right to peace has been infringed should be taken into account whether there has been a change in users' private life status due to the involvement of merchant promotion activities, and whether the change has caused a certain degree of intrusion into users' peace of life. "Zhang San can block interference by closing his browser's notification settings, and this behavior does not affect Zhang San's ability to receive" notification bar "information from other apps. Sending promotional information to Zhang San by mobile phone merchants of this brand to the" notification bar "does not harm Zhang San's private life.".

Zhang San's Relief

In the face of serious intrusion by promotional information from mobile phone merchants of this brand, Zhang San can implement the following actions:

1. User Zhang San can "block" the push of APP advertisements that are not interested in the browser included in the mobile system.

If the above settings have been made, timely collect evidence of harassment advertising information that still pops up in the browser, hold evidence to communicate and negotiate with the staff of the brand's mobile phone company, and require the brand's mobile phone business to immediately stop the infringement of sending commercial advertisements to it in accordance with the relevant provisions of our Civil Code.

After communication with the mobile phone merchant fails, if necessary, take measures such as reporting to the Ministry of Industry and Information Technology and other relevant departments, filing a complaint, or filing a lawsuit with the court to request them to stop infringing and compensate for traffic losses.

(This article is translated by software translator for reference only.)