뉴스서비스와 제3자 게시물로 인한 포털의 책임 여부

Abstract

The focus of this paper is on the Supreme Court’s Decision 2008Da53812 (rendered on April 16, 2009). In this case, published articles were transmitted to a company, which provides access to websites(hereinafter referred to as “internet service providers”). They exercised editorial control by selecting the news to post then publishing it in the news section. Some of the news included defamatory statements toward a third person. The Court held that the service provider was aware of the defamatory nature of the article and exercised editorial control by actively selecting and disseminating such statements thereby, being liable for the defamatory contents. The Court also said that they were exercising more power than the provision of mere search and access functions. Although the service provider has a duty of care based on supervisory responsibility measures such as removing the libelous statements based on the service provider’s knowledge or its apparent knowledge of the infringing material will inevitably cause service providers to implement policies that excessively control the website’s contents, which could lead to chilling effects of the internet users’ freedom of expression. The court held that removal or other measures should be invoked only when the unlawful nature of the libelous statements is clear and the service provider had actual or apparent knowledge of the libelous statements. Furthermore, the defendants in this case were service providers who defamed the plaintiff by posting articles that dealt with the website user's extremely critical reactions, which revealed the plaintiff's identity. This showed that the service providers’ had apparent knowledge of the presence of the third parties’ libelous materials, and the defendants were required to remove such contents from their website. In line with this decision, service providers now implement policies that reflect such concerns: cautious selection of articles posted on its website and limitation of its services to the provisions of websearch services only. As a result, harm caused by defamatory contents will eventually be reduced. It is also likely that this decision will also prevent distortions of public opinions attributable to editorial control exercised by the service providers. It will also allow access to diverse types of news for internet users. Also, in regard to the service provider’s vicarious liability of materials posted by a third person, the Court held that the defendants are liable under vicarious liability only when the unlawful nature of the defamatory contents is obvious, and when the service provider had knowledge of the material or there was clear indication that the service provider was aware of the presence of such material. This, in effect, eliminates the possibility of the service provider’s unreasonable removal of its contents, thereby reducing the service provider's burden of overseeing all of its contents. This also guarantees the users’ right of freedom of expression. Similarly, the service providers will be able to protect aggrieved persons from known unlawful contents that are apparently unlawful.