인터넷 플랫폼의 중립성 규제:인터넷아키텍처에 입각한 경쟁정책과 기본권의 조화

Despite the existence of dissenting opinions based on the chilling effect on the Internet infrastructure investment, studies on net neutrality generally recognize positive role of the neutrality obligation on the healthy growth of Internet eco-system including various application services. Same conclusion may be drawn as to the platform neutrality although the number of concurring opinions are lesser than the case of net neutrality. This is justified by the growing importance of platform layer in the Internet architecture. In the layering architecture of the Internet, the logical layer has more expressive elements than the physical infrastructure layer while the application service layer is more expressive than the logical layer. It could be generally stated that even when we recognize some expressive elements in the logical layer, those elements are too weak to invoke constitutional free speech rights as they are subsidiary to the performance of certain function that is the major role of the layer. Services in the application layer are so diverse that although they may be distinguished between functional and expressive services it is difficult to state in a word whether they are protected by the free speech or not. Neutrality obligation with regard to non-expressive functions does not normally restrict freedom of expression. In effect, neutrality in a lower layer works as a foundation for free speech in the higher layers. The lower the layer the greater the distortive effect in case of arbitrary discrimination, thus increasing the need for neutrality. Balancing point of conflicting rights and interests vary depending largely on the relevant layer of the Internet architecture.