온라인서비스제공자 책임규제에 대한 정합성 검토

Development of the Internet industry is unthinkable aside the Online Service Provider(OSP) who mediates information and content, and offers network means. However, while dysfunction of the Internet has been increased, a blade has gradually headed for OSP in order to regulate illegal information and infringing contents effectively. OSP who distributes a large amount of information and content, has no general obligation to monitor them it hosts because of anxiety on a conflict with the freedom of expression and an unreasonable burden to it. However, it may be responsible on certain illegal activities of users through its information network. The regulation on OSP liabilities began in a field of copyright, and has been applied in various fields recently. The characteristic of regulation on OSP in Korea, incorporates safe harbour provisions in the copyright law to provide immunity to it from indirect infringement like leading jurisdictions such as US, Japan and the EU. The regulatory approach on limitation of OSP liability divided into two regimes. One is a single law regulates various illegal actions including copyright infringement, defamation, illegal information, etc, and the other is several separate legal manner regulate each act. The former is taken by the EU and Japan, and the latter is taken by US and Korea. The flow of regulation on OSP liability has been recently changed in Korea in the form of imposing direct responsibility gradually from the initial limited liability method. The flow are found, for example, at 「The Act on Promotion of Information and Communications Network Utilization and Information Protection」, 「The Act on the Promotion of the Game Industry」, 「The Protection Act on the Children and Juveniles from Sexual Abuse」, 「The Telecommunications Business Act」, 「The Outdoor Advertising Management Act」, 「The Framework Act on the National Language」, etc. It may be seen to impose administrative regulations and even criminal penalty to OSP at these laws. These sporadic regulation is due to the fault did not take into account the Internet industry, and the lack of adequate understanding of the initial copyright law approaches on the limitation of liability. Such inconsistent regulation leads to redundancy and inefficiency, and hinders the freedom of expression and the emergence of a creative service in the Internet industry. However, in the United States, taking a vertical approach like Korea, we may find indemnity provisions for OSP in various laws because it has foundation such as a self-regulatory principle and competition centered in regulation. This article proposes to regulate OSP responsibility through a single unified legislation such as the Act on limitation of OSP liability in Japan, and the European E-Commerce Directive.