잊힐 권리의 논의와 관련한 형사법적 소고 - 정보통신망법상 명예훼손 및 임시조치와의 관계를 중심으로 - (A Criminal Study on Discussions related to the Right to be Forgotten - Focused on Discussions about the Defamation and the Temporary Blinding of Posts by ISP on the Information & Communications Networ)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 40권 / 2호 / 365 ~ 397페이지
· 저자명 : 이정훈, 김두원

초록

Recently entering a new era of digital mobile, concerns have actively led to how far the legal rights related to the posting contained information which has a person published as well as various articles and photographs posted by the person could be admitted. Offline/Online boundaries are blurred in media resources contained information that defines the personal life, so we met more complicated situation to determine individual rights for online posting. In the early Internet era, freedom of expression was a big buzzword, but now attention has been paid to the right to be forgotten on the Internet as sea of ​​information.
The Republic of Korea has already a well-structured meshes of the law than abroad to remedy the personal rights and defamation by law such as Article 21 paragraph 4 of the Constitution, Article 70 of the Information & Communications Network Act, Article 307 of Criminal Law ‘Defamation’ and Article 309 ‘Libel by set of publications’, and Article 311 ‘Contempt’, Provisions of civil defamation damages, the Press Arbitration Act, the Public Official Election Act, the deliberations of the Korea Communications Standards Commission, and Supreme Court’s Precedents. In addition, Article 44 the Second, Article 44 the Third of the Information & Communications Network Act are provided to the temporary blinding of posts to ensure the self-regulation of the private sector by law. This writing is paid attention to the situation disputed as a kind of transformed droit including the redemption of reputational damage when it enlarged as a remedy for the damage against the overall personal rights infringement individuals due to the press articles, on the other hand, discussions related to the right to be forgotten triggered in Europe are given shape to a droit like the Claim for deleting search focused on privacy protection. By looking at the existing regulations in Korea, it would be reviewed the validity of the right to exclude access in the guideline currently promoted by the Korea Communications Commission.
In short, at the current time presented the guideline by the Korea Communications Commission, the guideline related to the right to exclude access which stipulates in the text as the right to be forgotten is most likely to bring the effectiveness that is not much different from side effects of temporary blinding of posts on the Information & Communications Network Act. All problems are existed that regulations which are initiated by the logic to solve defined as a sort of legal rights before the punishment for defamation, therefore, in order to mitigate such adverse effects, legislators must be made a legislative choice that specify the responsibilities after a temporary blinding of posts when the right to exclude access clearly established by adding Articles or Clauses in the provisions of temporary blinding on the Information & Communications Network Act for leveraging existing systems after, or that delete the provisions of temporary blinding on the Information & Communication Network Act and, at the same time the right to be forgotten recognized as the rights that derive from fundamental rights or the fundamental rights, evolve as a special act by stipulating the responsibilities of the right to exclude access from the guideline. Because it is also not the system that must be considered in the scope of criminal regulations. Naturally promoting that the right to be forgotten is the droit cannot be exercised by ignoring others’ rights will also need to be continued.

영어초록

Recently entering a new era of digital mobile, concerns have actively led to how far the legal rights related to the posting contained information which has a person published as well as various articles and photographs posted by the person could be admitted. Offline/Online boundaries are blurred in media resources contained information that defines the personal life, so we met more complicated situation to determine individual rights for online posting. In the early Internet era, freedom of expression was a big buzzword, but now attention has been paid to the right to be forgotten on the Internet as sea of ​​information.
The Republic of Korea has already a well-structured meshes of the law than abroad to remedy the personal rights and defamation by law such as Article 21 paragraph 4 of the Constitution, Article 70 of the Information & Communications Network Act, Article 307 of Criminal Law ‘Defamation’ and Article 309 ‘Libel by set of publications’, and Article 311 ‘Contempt’, Provisions of civil defamation damages, the Press Arbitration Act, the Public Official Election Act, the deliberations of the Korea Communications Standards Commission, and Supreme Court’s Precedents. In addition, Article 44 the Second, Article 44 the Third of the Information & Communications Network Act are provided to the temporary blinding of posts to ensure the self-regulation of the private sector by law. This writing is paid attention to the situation disputed as a kind of transformed droit including the redemption of reputational damage when it enlarged as a remedy for the damage against the overall personal rights infringement individuals due to the press articles, on the other hand, discussions related to the right to be forgotten triggered in Europe are given shape to a droit like the Claim for deleting search focused on privacy protection. By looking at the existing regulations in Korea, it would be reviewed the validity of the right to exclude access in the guideline currently promoted by the Korea Communications Commission.
In short, at the current time presented the guideline by the Korea Communications Commission, the guideline related to the right to exclude access which stipulates in the text as the right to be forgotten is most likely to bring the effectiveness that is not much different from side effects of temporary blinding of posts on the Information & Communications Network Act. All problems are existed that regulations which are initiated by the logic to solve defined as a sort of legal rights before the punishment for defamation, therefore, in order to mitigate such adverse effects, legislators must be made a legislative choice that specify the responsibilities after a temporary blinding of posts when the right to exclude access clearly established by adding Articles or Clauses in the provisions of temporary blinding on the Information & Communications Network Act for leveraging existing systems after, or that delete the provisions of temporary blinding on the Information & Communication Network Act and, at the same time the right to be forgotten recognized as the rights that derive from fundamental rights or the fundamental rights, evolve as a special act by stipulating the responsibilities of the right to exclude access from the guideline. Because it is also not the system that must be considered in the scope of criminal regulations. Naturally promoting that the right to be forgotten is the droit cannot be exercised by ignoring others’ rights will also need to be continued.

참고자료

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