한국에서 온라인서비스제공자의 법적 책임론이 나아갈 방향

Abstract

The legal theory or regulation on the secondary liability of Online Service Provider is roughly divided into two parts, liability requirement and liability limitation requirement. For the OSPs liability requirement portion, Korean court seems to have taken unified position in both users copyright infringement case and defamation case, pointing out that Joint Tort-feasors rule in Article 760, Clause 3 of the Korean Civil Act is the statutory ground for OSPs liability requirement. For the liability limitation portion, meanwhile, there has been inconsistency of liability limitation requirement in Korean Copyright Act and The Act on Promotion of Information and Communications Network Utilization and Data Protection, thereby making OSPs in Korea suffer from unnecessary legal uncertainty. OSPs secondary liability rules in Korea should not follow the US model in which it has been traditionally divided between copyright infringement and defamation. Korea has not differentiated copyright infringement case from other infringement cases including defamation in the secondary liability requirement portion, whereas US has done. Moreover, it cant be missed that there is a plausible argument for the unification of OSPs liability limitation rules even in US.Therefore, OSPs secondary liability rules in Korea should be unified over all infringement areas by users, regardless of copyright infringement, defamation, etc., to settle the legal uncertainty in Korea, mentioned above. While the best way would be a new unified law on OSPs secondary liability limitation, if it would be severely hard, the second best way to do so is to make immediate amendments harmonizing OSPs liability limitation clauses in both acts, Korean Copyright Act, Article 102 & 103 and the Act on Promotion of Information and Communications Network Utilization and Data Protection, Article 44-2. Its a wrong conception at least in OSPs secondary liability area, the way of thinking that defamation cases related to the freedom of * Assistant professor, College of Law, Seoul National University.speech should be treated differently from copyright infringement cases at all times. In addition, the following differences just can be merely secondary considerations, but never make it very hard to unify OSPs secondary liability rules; i) online defamation is usually done through Bulletin Board System rather than Peer to Peer network which has been one of main devices for online copyright infringement, ii) its harder in online defamation case to judge the legality of the information at issue and control illegal information than in online copyright infringement case, iii) there is a relatively stronger need to identify direct infringers in online defamation than in online copyright infringement because the former case has relatively fewer infringers than the latter and only the former case has irreparable harm which cant be compensated by monetary remedies.