잊힐 권리의 민사법적 쟁점과 입법론적 연구

Abstract

In the contemporary society, any information can be saved as the digital, furthermore it is possible to copy and to spread out with no elimination of the information, and it can be remained in somewhere on the Internet eternally. This phenomenon has caused unexpected disadvantage by not only the information which a user has created on the Internet in the past but also spreading out the information which is related with a certain event on the Internet without the user’s intention after a long time. In other words, it has a high possibility to be abused as ‘Identity Disclosure’ or ‘Witch-hunt’ by profiling private information which is remained on the Internet through search-engines, because the information is hard to be deleted on the characteristic of the Internet if it is exposed to the public. Thus, it has come up for the necessary of the right to be forgotten which people can ask the prevention of diffusion and elimination of the information about themselves on the Internet, and it is accelerated through UN tried to enact it under the name of ‘the right to be forgotten’ in January 2012. Korea Communications Commission try to prepare the guideline to guarantee the autonomy of private data of the user at least in the scope which is needed for accepting the right to be forgotten in Korea. After they operate the guideline and examine the effectiveness of it, they plan to enact the right to be forgotten by reforming the Information Network Law in the National Assembly. The academic circles deal with the right to be forgotten, but it focuses on the legal procedures. Thus this research paper will investigate the aspect of civil law which is insufficient for the study relatively. Now, the definition of the right to be forgotten is still unclear, thus this research paper concerns the target of anspruch of the right to be forgotten as three parts. The first is the private data which the Internet service provider collects under the permission from the subject of that information. The second is the information which the subject of that information posts. The third is the information about the subject by the third person. This research paper investigates the private legal realization plans by the three targets of ansprunch of the right to be forgotten. The information which Internet service provider collects under the permission of the subject of the information can be realized the right to be forgotten base on the general data protection regulation because it is legally private data as the closed information. The information which the subject of information posts by themselves should be recognized in accordance with the policy statement based on the autonomy of private data of the subject as the part of the policy which is the contract of Internet service provide. Also, the information which the third person posts can be deleted partially through the elimination of works which comes from the copyright law as the method of realization of the right to be forgotten, and it can be claimed the elimination of the information based on the Information Network Law if Privacy Invasion is recognized. Furthermore, it is necessary to apply to civil legal injunctive relief to relax the application condition and standard when it concerns the characteristic of Internet, because the concept of personal right and the degree of invasion can be flexible by depending on the period even if the personal invasion is not existed now. Even if, however, the right to be forgotten can be realized through the construction of civil legal injunctive relief, the target of anspruch of the right to be forgotten is the private information and violation of personal right which is occurred in the information network including Internet service provider. Because the court should make a decision, it should have a complicated process and take a long time until the information would be deleted. Thus, specifying in the Information Network Law based on this research paper can be the effective way which the subject realizes the right to be forgotten when it concerns the legal system and secure of legal clarity. Legal questions of both public and civil law should be examined together at this point when the legal system of the right to be forgotten is enacted. I expect that this research paper will be the reference for carrying forward the legalization to establish the right to be forgotten in the balanced and rational ways.