인터넷상의 웹하드 서비스제공자의 형사책임

Abstract

Recent controversy has been rising over whether or not criminal responsibility should be taken by the online service provider in the case of the service users’ involvement in illegal activity, and if so, what kind of criminal responsibility is to be given. The paper has examined the following standpoints concerning whether or not the service provider can face charge of aiding of offence if obscene contents banned from release according to ‘Act on Promotion of Utilization of Information and Communications Network’(Act on Communications Network) are distributed over online web-hard service. Firstly, in contrast to the case of portal service, digital contents stored in online web-hard service are not open to every person and therefore, it would not be reasonable to ask the same obligation and responsibility that are normally relevant to general online service provider to the web-hard service provider. Secondly, as far as obscene contents banned from release is concerned, it is difficult to find grounds in Act on Communications Network on which service provider is legally obliged to prevent illegal distribution, just as the case of illegal files protected by copyrights law. Thirdly, Since contents protected by copyrights law from illegal distribution contains personal legal rights, the individual possessor of legal rights could demand web-hard service provider to remove or prevent them and as result, there may arise set specific personal legal responsibility about the service provider. Nonetheless, because such as obscene contents prohibited by Act on Communications Network carry contents about societal legal rights, web-hard service provider has no specific personal legal responsibility. Consequently, as long as Act on Communications Network is not revised to reinforce more detailed obligation of the web-hard service provider, it is problematic to acknowledge the provider’s aiding of offence through omission.