망중립성 보장과 기본권 보호

Abstract

Equality of access and information(packet) is a crucial part for the innovation and the alteration, and also it has boosted fundamental human rights. Therefore, problems of the net neutrality must be resolved not by how to design the inter-net system and to regulate the inter-net, but by understanding what the net neutrality affects and protection of the net neutrality. The inter-net is a public tool for all people to use for their own innovation. And it plays a role as an infrastructure in information-oriented society. The net neutrality principle, created naturally, is the foundation of the innovation and increases fundamental human rights. The proper state intervention to the net neutrality principle is reasonable because innovation from below implies political-legal values, such as formation of the public opinion, participatory democracy and guarantee of fundamental human rights. The net neutrality is peculiar because it tends to preserve original values of the inter-net via a realization of data equality. A legal concept of the net neutrality needs to be technology-neutral and to accomplish a concept of justice. The net neutrality means that governments or ISPs must not violate people’s fundamental human rights against blocking access or unreasonable discrimination in transmitting of senders-recipients, information(packet), device. The equality is not only a purpose of the constitutional law but also a measure to protect another basic values of the law. A criterion of judgment on equality should be a specific content of violated rights. It is because other specific fundamental rights can be violated by the unreasonable discrimination in a real society though the discrimination is a just simple discrimination of personnel and materiel elements in public network. Neutral and open managements of the inter-net have leaded to the innovation and increased fundamental human rights. Therefore, the problem we have is not a choice in whether the net is managed neutrally, but rather it is a consideration of the regulation over the technology, affects innovation and fundamental human rights. It should be a reestablishment of fundamental human rights and a united legal system. Many fundamental human rights are violated in these days due to lack of the general rules on the net neutrality. We need to prepare against the violations. Also related basic human rights(equality, freedom of expression, privacy, communication secret) should be harmonized in a regulation or guarantee of the net neutrality.