CONTENTS
- 1. Network Act Litigation, the Detailed Background?
- - Network Act Litigation, the Relevant Statutes and Precedents?
- 2. Network Act Litigation, the Lower Courts' Determination?
- 3. Network Act Litigation, the Supreme Court's Determination?
- 4. Network Act Litigation, Daeryun's Assessment
1. Network Act Litigation, the Detailed Background?
The person who filed the claim for damages relating to the Network Act was A, a university professor.
One day, A learned that the operator of an Internet site was providing users with information about professors at major domestic universities.
For each professor, the site posted a one-line review and a grade score for the laboratory run by that professor.
The grade score was divided into five indicators, namely the professor's character, actual labor costs, thesis supervision ability, lecture delivery, and laboratory atmosphere, and was presented in the form of a graph.
In addition, to post such information, a user had to verify, through the relevant university's email account, that he or she was a current student or a graduate.
Having become aware of this situation, A asked B, the site operator, to delete the information about A.
B deleted A's name, email, and photograph, and blocked the one-line review of A while leaving the statement, “This has been blocked at the request of the professor concerned.”
However, B refused to delete the evaluation graph for A's laboratory.
A then filed a lawsuit, claiming that B had insulted A and thereby infringed A's personality rights.
Network Act Litigation, the Relevant Statutes and Precedents?
◈ Relevant Statutes
Article 44 of the Network Act (Protection of Rights in Information and Communications Networks)
(1) A user shall not circulate, through an information and communications network, information that infringes the rights of others, such as by invading privacy or defaming them.
Article 44-2 of the Network Act (Requests for Deletion of Information, etc.)
(2) Where an information and communications service provider receives a request under paragraph (1) for the deletion, etc. of the relevant information, it shall, without delay, take necessary measures such as deletion or temporary measures and immediately notify the applicant and the person who posted the information. In this case, the information and communications service provider shall make the fact that it has taken the necessary measures known to users by methods such as posting a notice on the relevant bulletin board.
Article 764 of the Civil Act ((Special Provisions in Cases of Defamation)
With respect to a person who has defamed another, the court may, upon the request of the victim, order suitable measures for the restoration of reputation either in lieu of, or together with, compensation for damages.
◈ Relevant Statutes
“Where an information and communications service provider goes beyond serving as a gateway for users to search for and access content, and stores expressive material provided by a third party on its own data-storage computer equipment, selects some of that material on its own initiative, and posts it in a posting space that it directly manages, and where the posted material contains content that defames another person, this amounts to the service provider recognizing the specific defamatory content and actively choosing and disseminating it. Accordingly, absent special circumstances, the service provider, like the third party who created the defamatory material, bears liability for damages arising from the tort toward the victim whose reputation was thereby harmed (see Supreme Court, Decision of April 16, 2009, 2008 Da 53812, etc.). However, the same cannot be said where the provider merely offers a function for searching for and accessing a third party's expressive material.”
“Whether there is illegality in the conduct of a consumer who has actually used goods or services and posts content unfavorable to the business operator on the Internet, based on the objective facts that the consumer experienced, must be determined even more cautiously by thoroughly examining all the circumstances.” (See Supreme Court, Decision of November 29, 2012, 2012 Do 10392, etc.).
2. Network Act Litigation, the Lower Courts' Determination?
The court of first instance, which heard the claim for damages surrounding the Network Act, found in favor of B.
The court found that B was not the author of the one-line reviews or the evaluation graphs, but merely the “administrator of the posting space.”
It further found that the information about each professor was compiled mechanically, without B's involvement, and displayed in graph form, and that B's role was therefore limited to merely providing a function for searching for and accessing a third party's expressive material.
The court also explained that the information was the result of quantifying evaluations entered directly by current students and graduates of the university where A worked, and that, as information concerning the graduate research environment, it could be regarded as information relating to the public interest.
During the trial, B had also stated that the purpose of operating the site was “to improve the graduate research environment and to assist students preparing to pursue graduate studies in making careful choices.”
The court of first instance found that B did not appear to have posted the evaluation graphs for any private purpose or motive, and that the graphs appeared to actually contribute to students' decisions on pursuing graduate studies and to the improvement of the research environment.
In other words, since it was difficult to regard the act of posting the graphs itself as unlawful, B's refusal of the request to delete the graphs could not be regarded as conduct in violation of the Network Act, and therefore A's claim for damages on that ground could not be upheld.
A appealed against this judgment of the first instance. However, the appellate court's determination was no different from that of the first instance.
The court explained that a university professor is relatively more likely to exercise considerable influence over the public, and that A's performance of duties was therefore subject to broad monitoring and criticism by the public.
It added that information about A's personal details, achievements such as theses, and laboratory results therefore amounted to information of public interest that students planning to pursue graduate studies should be provided with at a minimum.
The court emphasized that, while there was some doubt as to whether the professor evaluation items and evaluation methods created by B were objectively universally valid, a strict standard should not be applied to the manner of expression in order to guarantee “freedom of expression,” one of the important fundamental rights under the Constitution.
3. Network Act Litigation, the Supreme Court's Determination?
The Supreme Court, which reviewed the litigation relating to the Network Act, reached the same determination as the first and second instances.
Considering A's status as a public figure, the public nature and public-interest character of the personal information, and the benefit B obtained through the site as well as its processing procedures, the Supreme Court held that B's act of collecting and providing A's personal information could not be regarded as an unlawful act that infringed A's right to self-determination and the like.
Accordingly, the court held that A's final appeal was without merit and dismissed it.
4. Network Act Litigation, Daeryun's Assessment
We have analyzed a Supreme Court judgment holding that, in connection with Network Act litigation, even if information about an individual is posted on the Internet without permission, the act itself cannot be regarded as unlawful if the information serves the public interest.
As the Internet has developed and various kinds of communities and sites have emerged, conflicts surrounding “personal information” have arisen frequently.
In particular, there are many cases in which an individual's personality rights and reputation are seriously damaged by personal information disclosed without the person's consent, or in which the person suffers psychological harm so great that daily life becomes impossible.
Where the harm is clearly evident, civil proceedings may also be pursued separately from criminal proceedings.
However, even where information concerns an individual, as in this case, the court's determination may differ depending on whom the information concerns, as well as how and by whom the information was posted.
For this reason, if you become involved in related litigation or are considering filing a lawsuit, we recommend first consulting with an attorney experienced in these matters.
At Daeryun Law Firm LLP, a team of attorneys with extensive experience in Network Act litigation assists clients in a manner suited to their individual circumstances.
If you have any questions regarding this law, you are welcome to request a consultation with Daeryun Law Firm LLP at any time.
