유럽연합의 온라인서비스제공자 관리책임에 관한 법제: 우리나라의 법제와 비교법적 관점에서

Godfrey v. Demon Internet Service case in the U.K. in 1999 which dealt with online service provider’s liability made the European Union establish European Community E-Commerce directive (EC Directive 2000/31/EC; hereinafter referred as EU directive) in June 2000. The European Union adopt a horizontal approach which is a single respond to different activities of OSP such as copyright, defamation, privacy and etc. The scope of EU directive can reach only to liability on damage including copyright infringement, but not to criminal liability. Thus, when it comes to penal responsibility, contracting members of the EU can regulate it by self- or co- regulation. The EU directive made three groups on the OSP liability: mere conduit, caching and hosting. The objective factors exempt mere conduit from liability: the OSP does not actively participate in the third party’s activity such as modification or creation of illicit information. Caching and hosting providers can enjoy immunity of liability unless they have actual knowledge on tort or illegal matters. Consequently, as a rule, the EU has built a united and single standard on the limitation of liability, i.e., OSP can escape civil and criminal liability in the EU unless the OSP has an actual knowledge. Unlike the EU’s horizontal regulation which has a unitary respond for different activities of the OSP, Korea adopts the US’s vertical approach which has different respond for different activities of the OSP. In general, in order to accomplish the goal of laws, Korea applies general laws, civil and penal code, to the OSP: aiding and abetting liability as a co-tortfeasor. However, some laws in Korea took different regulation against the OSP: the Copyright Act, the Act on Promotion of Information and Communication Network Utilization and information Protection, etc. and the Act on the Protection of Children and Juveniles from Sexual Abuse. Thus, the way to regulate the OSP in Korea represents inconsistency and complexity in a legal regime without a clear standard. To conclude, Korea has established complex and regulation-oriented laws since Korea has just responded social issue each time without understanding on the legal essence of the OSP. Thus, the OSP’s liability in Korea has complexity without unity. Accordingly, in order to promote a new industry of the OSP including cloud service and other big data service and foreign direct investment with rational regulation, Korea requires reorganization of legislation. Thus, the legal regime on the OSP’s liability in the European Union could be compelling reference materials since it has a civil law system.