온라인서비스제공자의 불법정보 삭제･차단의무에 대한 연구 — 전기통신사업법과 정보통신망법의 개정 내용을 중심으로 —

The Telecommunications Business Act, which was partially amended on June 9, 2020 and is due to be implemented on December 10, 2020, directs that, where a value-added telecommunications business operator pursuant to law recognizes, by reporting, requesting deletion, or requests from organizations or groups specified by Presidential Decree, the circumstances where any illegal photographs, etc. specified in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or the Act on the Protection of Children and Youth Against Sex Offenses are circulated among information made available to the public and circulated through the telecommunications networks he or she operates and manages, the person shall promptly take necessary measures to prevent the circulation of the relevant information, such as deleting the information and blocking access thereto (Article 22-5 (1)). In addition, a set of technical and administrative measures shall be taken to prevent the distribution of illegal photographs, etc. by some operators (Article 22-5 (2)). The Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. amended on the same date, requires information and communications services providers to designate a responsible person for preventing the distribution of illegal photographs, etc. among information that is made available to the public and circulated through the information and communications network he or she operates and manages (Article 44-9 (1)). It is stipulated that this responsible person shall take necessary measures to prevent the circulation of the such illegal media, such as deleting the information and blocking access thereto, pursuant to Article 22-5 (1) of the Telecommunications Business Act. There have been social demands for urgent measures coping with illegal activities arising from the popularization of the use of social media. A series of bills were proposed to obligate online service providers, who enable the circulation of illegal information serving criminal purposes, to monitor and delete problematic information. Ultimately, the proposals have led to the legal amendments above. Events which draw intense social interest will naturally beget strong countermeasures to pacify anxiety and ensure the prevention of similar crimes. However, in order for such legal measures to be constitutionally justified, they require extensive analysis and review on issues such as the guarantee of constitutional fundamental rights, the characteristics and constitutional significance of cyberspace, and the practical effects of policies. Otherwise, they risk a diminution or infringement of online freedom of expression on one hand, and undue burden on relevant businesses on the other, due to near-sighted legal amendments, introduction of radical policies, and faulty policy changes. This study analyzes and reviews concerns which may pose constitutional issues, with a focus on the amendments discussed above and their legislation process. In doing so, this study aims to deepen awareness of issues which require attention and caution, as well as to review protocols which must be followed, in the process of revising laws or improving policies.