정보통신망법상 정보에 대한 임시조치 및 행정규제에 관한 연구

Abstract

The temporary measure on the information violative of other person’s rights and the administrative regulation on the unlawful information under 「the Act on Promotion of Informaion and Communication Network Utilization and Information Protection, Etc.」 (“Network Act”) means the systems by which ISP or administrative institute can easily block the spreading of the informations they think harmful without the court’s rulings. These systems originate from “notice and takedown” of DMCA in U.S.A and are installed in Network Act, Korea as disputions started to arise. ISP has a liability of damages for unlawful acts if it can predict the presence of the information which is obviously violative of others’ rights as the Supreme Court en banc decision 2008Da53812 Decided April 16, 2009 appeared. ISP has to judge the infringement of information substantially and take temporary measures without the request of victims to avoid the liability. However, it can indiscriminately violate the freedom of expression on persons who upload the informations if they cannot be guaranteed of the restoration of the imformations deleted or suspended. Therefore, Network Act Article 44-3 temporary measures need to be abolished depending on the argument above. Also, the exemption of ISP which takes immediate actions has to be consistent with the restoration rights of persons who upload the informations to protect both of them. The Korea Communications Commission or Korea Communications Standards Commission can order ISP or an operator of an open message board to reject, suspend, or restrict handling of unlawful information which is likely to be followed by criminal responsibility. Seoul Administrative Court recently ruled that a demand for correction by Korea Communications Standards Commission is administrative disposition which can be disputed by persons who suggest that such a demand injures rights. This rule is proper in that a demand for correction accounts for majority of disposions and affects the rights and duties of people directly. In addition, Article 44-7 presenting rejection, suspension, restriction on handling of unlawful information may be pointed to violate the principle of the legality of crimes and punishment because this Article is made in ambiguity if criminal suits occur. Consequently, temporary measures or administrative actions should be taken appropriately weighing the freedom of expression and the rights alleged to be violated by information. We will set up the self regulation based on the contract between ISP and users on network in the end.