개인정보자기결정권과 잊혀진 헌법재판소 결정들을 위한 변명

The Constitutional Court has acknowledged the right to informational self-determination as a fundamental right. The Supreme Court has also accepted this right as a type of moral right. According to the Constitutional Court, the constitutional basis for the right to informational self-determination is Article 10 (the right to pursue happiness) and Article 17 (the right to secrecy and freedom of private life) of the Constitution of the Republic of Korea, free and democratic order, and the principle of the people’s sovereignty. The raison d’être of this right is the enhanced protection of individuals who live in an information society which poses increasing risks to their right to self-determination. However, this right is not an absolute one because it, along with other fundamental rights recognized in the Constitution, is subject to limitations based on the principle of proportionality and the principle of clarity as stipulated in Article 37 Paragraph 2 of the Constitution. The Supreme Court recognizes this right as a type of moral right in the context of civil disputes, adopting the rationale of the Constitutional Court. According to the Supreme Court, any determinations on infringements of the right to informational self-determination should be based on the same criteria used for determining infringements of moral rights, which is essentially, the balancing between this right and other conflicting rights after taking into account all the relevant circumstances. Several academic theories have been advanced arguing that the right to informational self-determination should be regarded as an almost absolute right which should seldom be restricted and that the embodiment of this right has contributed to the rigidity of Korean data protection laws. It is also claimed that this right is based on the assumption that individuals are rational enough to be able to make free, informed decisions on their personal data, which is actually not true. Other commentators insist that the right to informational self-determination, in the context of civil disputes, should be treated differently from other moral rights because an infringement of this right alone should not give rise to any liability for compensatory damages. I believe these arguments are neither consistent with the decisions of the Constitutional Court and the Supreme Court as they claim to be or useful tools to explain and find the solution for the problems of Korean data protection laws including their rigidity. Rather, I argue that the concept of the right to informational self-determination as established by Courts in Korea already provides enough flexibility for adaptation in accordance with the relevant circumstances and thus may still be used as a meaningful basic principle for data protection in Korea.