SNS의 매체적 특성과 법적용의 한계

Communications through SNS have special features driven by their unique purpose of socialization, which resist traditional application of the laws regulating speech. They are the 140 or 400 characters limit, the limited transmission of the postings only to people previously made friends or followers, the users’ protective and “private” self- characterization of their otherwise public postings, and the interactive and transient nature of the SNS postings constitutively resembling oral conversations. These features make it difficult to apply the criminal laws requiring public communication as one of the elements. Although all the public Tweets or Facebook postings technically meet that requirement, so do their reproductions on their friends’ and followers’ account, pushing the regulator into a very awkward positing who probably want to punish only the original poster. Furthermore, most SNS communications are consummated when the users passively receive the postings pushed to their account rather than when they actively search through others’ accounts. Also, the oral-like, informal, and mass-intelligent nature of SNS communication has made foreign commentators discuss, for example, the outright inapplicability of defamation to SNS. These findings apply especially strongly to Korea’s unique election law provision punishing any “written” support for or opposition against a candidate, which in light of its legislative purpose requires a very high degree of actively public communication. Also, the Korean Communication Standards Commission’s takedown process revolving around the targeting of bad content instead of a bad person is also incommensurate to SNS where information are not organized by contents but by its authors, causing a serious overbroadness problem.