팝업(Pop-up)광고 행위의 규제

This article discusses the Supreme Court's 2009do12238 decision rendered on September 30, 2009, dealing with a new type of pop-up advertising scheme. With the advancement of the Internet and information technology, new types of disputes are increasing in Korea, and the dispute in this case arises from pop-up advertising, which is one of those new disputes. Especially, the pop-up advertising scheme at issue in this case, so called ‘layer pop-up’, is unprecedented, in that the pop-up has no frame around it, and is absorbed and integrated onto the homepage of an Internet portal site so as not to be distinguishable from the homepage screen, and the pop-up substitutes for the Internet portal's own ads. This case carries important precedential meanings since it is the first case in Korea in which the Korean Supreme Court determined for the first time in the world whether this type of pop-up advertising can be regulated by criminal law. To begin with, this case is very significant since it deals with the issue of whether the pop-up advertising can be regulated as unfair competition pursuant to the § 2 (1) (B) of the Korean Unfair Competition Act. Specifically, this case provides the requirements in detail for the pop-up advertising to fall within the category of unfair competition based on the established judicial precedents and the commonly accepted views. The Court, then, moved to regulate, according to that requirements, the new type of pop-up advertising of the accused which caused much damage to our society, by ruling that the layer pop-up in this case constituted a crime under the Korean Unfair Competition Act. In other words, the Court held that the advertising of the accused in this case was unfair competition, in view of the facts that the pop-ups of the accused appeared in the form of a ‘layer pop-up’ with no distinctive indication of an origin in the pop-ups themselves, and the exposure to the pop-ups was not limited to those who consented on the installation of relevant programs although the pop-ups appeared only on the computer screens of those installers and furthermore, even the installers of the relevant programs had difficulty in distinguishing the ads of the accused and those of the Internet portal for the reason that the pop-ups were absorbed and integrated onto the homepage of the Internet portal site. Also, this case is meaningful in that it implies that the so-called ‘trademark use theory’ primarily discussed and developed in WhenU case decision by the Second Circuit of the U.S. should not be applied indiscreetly to this case dealing with a different fact situation from that theory. Meanwhile, it was held that the pop-up advertising of the accused did not constitute a crime under the Korean Criminal Act § 314 ② (Interference with Business by Making an Impediment in Data-Processing). The court reasoned that the pop-up advertising did not cause any impediment to data-processing of individual installers' computers on which such pop-ups appeared or any impediment to the server of the Internet portal as long as the layer advertising popped up only in the computer screens of users in which relevant programs were installed with the consent thereof. This makes it clear that § 314 ② of the Criminal Act has limits in regulating pop-up advertising.