수사기관의 통신자료 요청에 따른 전기통신사업자의 민사책임-대법원 2016. 3. 10. 선고 2012다105482 판결에 관한 분석-

Abstract

The communication data collected by telecommunications business operators relate to the personal information of hundreds of thousands or millions of subscribers and are essential for the business of the collectors. Moreover, personal information is likely to be misused by the collectors or the third party. In addition, from the standpoint of the investigation agency, the personal information collected by telecommunications carriers can be a means for carrying out efficient investigation. Conversely, if public power is abused, it has the potential to be used as a means of censorship or surveillance beyond the needs of the public. In this regard, a number of lawsuits have recently been filed against a large amount of damages due to leakage of personal information by business operators. Reviewing a remarkable Supreme Court decision that was released in 2016, this paper focuses on the contents of the civil liability that can be borne when a business operator is requested communication data by an investigation agency. Specifically, this paper deals with the requirements for establishing the civil liability of business operators, the relevant statutory provisions and interpretation of those provisions and how to balance conflicting interests between the protection of individual fundamental rights such as the right of privacy or the freedom of expression and the public interest in prompt and efficient investigation. In particular, in the court’s decision above, in relation to the interpretation of a statutory clause that regulates the request of an investigative agency for provision of communications data, it was regarded as a key point whether the business operator has a duty of substantial investigation over the validity of the request and the scope of information that can be provided. Therefore, this paper also focuses on the analysis of the clause and the contents of the standard form contract that was concluded between an individual user and the telecommunications business operator.