명예훼손의 구제방안으로서의 잊혀질 권리

Abstract

Past facts related to personal honor are often searched through search sites. The discussion related to these cases led to the introduction of ‘the right to be forgotten’ in the EU General Data Protection Regulation (GDPR). While in the European Union, the right to be forgotten was adopted, in the United States, the right to be forgotten is not introduced according to the constitutional standard that values ​​freedom of expression. except in some states. Although Korea does not have a written regulation of the right to be forgotten, similar regulations already exist or are being discussed. In other words, there are provisions of Personal Information Protection Act and Act on Promotion of Information and Communications Network Utilization and Data Protection, etc., and the right to request deletion of articles and blocking access to articles, and so on. Just as the active discussion on the right to be forgotten originated from the cases related to personal honor, the right to be forgotten could be an applicable measure relieving defamation. Personal data can be deleted based on the right to be forgotten, blocking sources that would affect reputation, and as a result, it is a remedy for defamation. In the case of defamation by exposing false information, information deleting or information blocking could be a reasonable remedy. However, these measures conflict with freedom of expression and the right to know. While defamation has been abolished in many countries paying attention to freedom of expression, defamation is still widely recognized in Korea. In order for defamation to be abolished, the social context should support the premise that freedom is responsibility. Thus, in the current domestic social situation, defamation should still exist as a minimal control device to limit the indulgence of expression. In Korea, even defamation due to the representation of false facts is recognized and it seems to proper to delete or to block access to such false facts to prevent continuous defamation, regarding the case of defamation due to the representation of false facts. However, in that the burden of proof for the representation of false facts lies on the claimants, it seems that the freedom of expression is emphasized rather than the protection of honor at the stage of application of libel. In the case of defamation due to the representation of true facts, there are problems in relation to the right to freedom of expression and the right to know as well as the right to self-determination of personal data, and it is necessary to determine the priority according to the principle of balance and proportionality. Besides, the right to delete or to block access to articles could be a problem by strengthening the personal data controllers’ control over personal data.