사이버 명예훼손죄에 관한 인터넷서비스 제공자의 형사책임

Abstract

Cyber defamation raises the issue of criminal punishment of third-party Internet service providers as well as who have committed the crime themselves. Punishing an Internet service provider under certain conditions is not contrary to the principle of self- responsibility, given that the service provider earns huge amounts of income by providing a publishing space, has significant social influence, and also has the technical ability to control the publication. In fact, foreign countries, including the United States, Germany and Japan, have prepared provisions for the legal liability of Internet service providers in their laws on information and communication networks, and the requirements for the provisions are whether the provider recognizes the expression or not and the technical feasibility of blocking the expression. On the other hand, Korea does not have the above legal basis, but the Supreme Court recently made clear the requirements of the Internet service provider's liability for civil damages in its ruling. The requirements are: first, the illegality of the post is obvious; second, the victim has made a request for deletion or the provider knew or could know the existence of the post; third, the service provider was allowed to control the postings technologically and economically, and; lastly, the provider left them unattended for a considerable period of time. The Internet service provider's criminal responsibility is an act of negligence after the article has been posted, he is not a principal offender because he or she/they do not control the crime. It is reasonable to regard it as a crime of aiding and abetting, because due to the nature of cyber defamation, the act of defamation can be considered to continue until the posting is deleted. Scholars argue that the Internet service provider has a safety obligation as the manager of a hazard by virtue of its axiom as the obligation of a crime of omission. However, since the concept is too comprehensive and goes against the principle of clarity and trust, it is deemed reasonable to establish a clear legal basis for the duty, as in foreign countries mentioned above.