헌법적 쟁점으로서의 망중립성

Network neutrality is an issue that deals with whether or not there should be regulations on network service providers concerning the neutrality of Internet networks so that the users and entrepreneurs can manage information and business without restrictions. The concept of network neutrality is an enormous issue encompassing vast area for it is discussed in a varied conditions of each country’s continually developing and changing IT technology and market situations; consequently, it is not a matter of which a simple solution is expected. A broad outline of the discussion is as follows. Some insist that in order to cope with rapidly increasing demand on data transmission, network service providers need to be capable of controlling the network including the matter of traffic control. And the others are concerned that once network service providers control the network, the properties of Internet--the renovative and creative forces of the liberal and open space--which enabled IT revolution and information society might be weakened, and this might result in the slowdown of the progress in information communication and culture as a whole eventually. Network service providers and contents providers each emphasize the importance of their position concerning continuous progress of IT industry and overall increase of benefits. This not only affects the matter of economic freedom but also is related with the issue of the freedom of expression of general users who utilize Internet in their lives. Network neutrality centers on the principle that network service providers should not discriminate among the contents in the network; if network service providers restrict certain user’s data with the excuse of traffic control, the freedom of expression of the corresponding user may be violated. Just emphasizing the constitutional significance is not sufficient as a practical measure to secure the freedom of expression of the network users. Although the gist of the matter of network neutrality is how to sustain and develop the public characteristics of Internet network as a liberal space, the practical economic issues concerning extension and advancement of the network cannot be separated from the discussion. Furthermore, regulations on the related entrepreneurs’ economic freedom should not be justified with the general excuse of public good without proper scrutiny. The debate on the fundamental rights on the dimension of ensuring the possibilities of practicing information exchanges in cyber space differs from the natural liberty, which is guaranteed by the absence of coercion on the part of the government power, in that certain material conditions are necessary on a vast range; and this demands considering together the making of conditions that enables general realization of free information exchanges, and the problem concerning free exercise of property rights and liberal economic practices. This thesis overviews the desirable conditions concerning the role of individual, business, and the government to deal with the matter of network neutrality on the basis of proper understanding on the normative system including constitutional economic order and fundamental economic rights; and then it investigates specific problems at issue which are relevant to the regulations on network neutrality, which leads to examining practical assignments to guarantee fundamental rights in each particular occasion.