인터넷임시조치제도의 위헌성 - “남이 싫어하는 말은 30일 후에 하라”

Abstract

Article 44-2 Paragraphs 1, 2 and 4 of the Act Regarding Promotion of Use of Information Communication Network and Protection of Information ("Network Act") require the service provider to delete any content that "infringes upon another's rights" upon request of the victim or at least take a "temporarily measure" it if it is "difficult to judge on whether it infringes upon the rights. . or if "a dispute is anticipated." A "temporary measure" here means a measure to block access to the content and the law requires the period of the measure to be 30 days or less. It may be contested whether the abatement obligation applies only to those contents that actually injures others or all the contents upon which someone makes a claim of being injured. However, even if the abatement obligation legally applies only to actual injury, the service providers as a matter of fact must abate whenever upon request or must risk being found wrong by courts and therefore liable (strictly) as a contributor to the unlawful content. Furthermore, Paragraph 4 of the aforesaid article requires a temporary measure in event that it is difficult to judge on the fact of injury. Now, both conditions, namely, "when it is difficult to judge" and "when a dispute is anticipated" include when the content is later found not to injure another person or simply when there is no actual injury. Therefore, if there is a claim of injury, the law requires at minimum a temporary measure. Of course, Paragraph 4 itself says "the service provider may take a temporary measure" as if it is optional. However, the full sentences of Article 1 and Article 2 should be read together. Paragraphs 1 and 2 require certain abatement measures from the service provider in event that there is an injury and someone requests an abatement measure. Paragraph 4 says that, "in spite of" such request, the service provider may take a temporary measure if and when it is "difficult to judge on whether it infringes upon the rights. . or if "a dispute is anticipated." In other words, in other circumstances, the request for abatement should trigger abatement but when it is difficult to judge and a dispute is anticipated, the same request for abatement triggers only a "temporary measure." "May take a temporary measure" means "may take a temporary measure instead of deleting" and does not mean "may do nothing." One may argue that the failure to 'blind' constitutes a violation only for the contents with actual injury. In other words, as long as the content is in the end non-injuring, there is no ISP liability for not 'blinding.' However, in view of the legislative intent behind this particular provision, it must be interpreted to impose a blinding obligation whenever 'difficult to judge' or 'anticipating a dispute' regardless of whether the content is later found to be unlawful or not. Even if not, again, the service provider cannot predict with accuracy what courts may do and cannot risk being strictly liable for making a false judgment just as the service provider cannot under Paragraphs 1 and 2. The final analysis is that the aforesaid provisions require the service providers to take a "temporary measure" against any content that a person requests abatement on. True, Paragraph 6 referring to 'exemption from or reduction of liability in event of compliance with the aforesaid duties' makes a feeble attempt to turn the provisions into an exemption provision like the notice-and-takedown of the Digital Millenium Copyright Act or even that of Korea's own Copyright Act Article 103. However, exemption there is not mandatory on the courts deciding on the ISP liability. In fact, none of the service providers interpret Article 44-2 as an exemption. All of them interpret it as an obligation. In the end, the total result of the aforesaid provisions is that 'Thou Shall Not Publish What Others Dislike or Risk Being Abated For a While.' The Constitution does not authorize abating a speech not violating others' rights. The aforeaid provisions require even lawful contents to be abated for a while and therefore are unconstitutional. Of course, under the current statutory scheme, the blinding can be between just above zero and 30 days. Daum set it at the maximum of 30 days while Naver set it at the period lasting until the publisher request reposting. Naver's system looks a lot like the notice-and-takedown without mandatory exemption. However, the statute is requiring even Naver to take down what is clearly lawful at least once. The rule "Thou Shall Say Twice What Others Dislike" is equally unconstitutional.