인터넷과 표현의 자유 규제 : 익명성 규제와 전파성 규제를 중심으로

Abstract

A discourse on this country’s internet regulation has focused on the need to respond directly to anonymity and rapid diffusion, two fundamental characteristics of the Internet communications. A response to anonymity resulted in a series of mandatory identity verification regulations, and a response to extreme diffusibility resulted in administrative censorship conducted by the Korean Communication Standards Commission designed to block or delete material ‘without waiting for a court’s judgment’, Also, a concern with anonymity and diffusibility resulted in regulatory schemes operating not on the speakers themselves but on the intermediaries, such as the “provisional take-down” system incentivizing the intermediaries to block content without determining the legality of the contents or the “corrective requests” issued by KCSC to the intermediaries. This article conducts constitutional evaluation of the identity verification laws and the KCSC “corrective requests” system, respectively on free speech and due process. Identity verification rules, it finds, are the products of fear against anonymity and reliance on a real-name system, which must be re-conceived itself, and the “corrective system” also is a misguided response to the Internet’s diffusibility, which can be better responded by taking advantage of such efficient communication functions to provide notice to those who posted the material. The article will be the first of a two-article piece, the second of which will deal with how reciprocity, the third main characteristic of the Internet communication, affect and shape the relevant regulatory terrain.