망 중립성 규제의 기본권적 고찰

Korean Government adopted 「Guidelines on Net Neutrality and Internet Traffic Management」 in December 2011 and 「Standards on Reasonable Network Management and Transparency」 in December 2013. Those documents, however, raise some constitutional concerns as to the protection of fundamental rights of net operators, application service providers, and the public in general. Net operators have fundamental rights of property, freedom of doing business, equality, and freedom of expression to a limited extent. End users including application developers have fundamental rights of non- discrimination, freedom of expression, privacy and access to the Internet. Net neutrality obligation affects those fundamental rights of net operators and end users in various ways. Fundamental rights may be constrained when they are in conflict with each other and with important public interests. Those constraints, however, must meet conditions of objective justification, suitability of means, least restrictiveness, and balance of interests. A constraining regulation must also be adopted in the form of Act or lower level of laws under the explicit authorization of an Act. In addition, a result in which a right absolutely ignores other competing rights should be avoided. Following those principles, the Guidelines should be amended to narrow down the scope of network operators that are subject to the rule of non-discrimination. The government should also have more explicit legal ground to adopt the Guidelines. Some provisions of the draft Standards should also be reconsidered from the perspective of the constitutional principles established in the protection of fundamental rights.