플랫폼의 불법촬영물 유통방지의무에 대한 헌법적 연구 – 유럽사법재판소의 최근 판결을 중심으로

There is a constitutional controversy on the issue of the freedom of expression when the Telecommunications Business Act allows some value-added telecommunications business operators such as large platforms to restrict or filter information whether those information falls into sexual exploitation graphics like Child Pornography or Non-consensual Pornography. Upload filtering, in particular, is heavily criticized on the ground that it burdens platforms to carry out general monitoring obligation, which is a unjustified infringement on freedom of expression. With regard to the freedom of expression on the Internet, it is necessary to understand the circumstances of Internet regulation and the theory to explain the regulation. As the Internet develops, people have become more dependent on platforms to acquire information or to communicate with other people. People form communities, forums to communicate with each other through the Internet. At the same time, people follow the guidance of platforms and platforms have become “the new governors” in cyberspace. This phenomenon requires a new framework to understand the freedom of speech in the digital era because intermediaries, which connect people as mere conduits, play a crucial role in regulating speech on the Internet. In order to explain this phenomenon, a theory called “pluralistic model of speech regulation” should be thoroughly examined and applied to the speech regulation on the Internet. In addition, it is essential to review, in light of constitutional framework, the concept of content moderation which makes platforms “the Custodian of the Internet”. The Court of Justice of the European Union ruled two important decisions regarding the regulation of platform and upload filtering. Eva Glawischnig-Piesczek allows platforms to filter defamatory expression and extends the regulation to “equivalent content” as well as “identical content”. In Poland v. Parliament and Council, the CJEU interprets that the Copyright Directive of Digital Single Market article 17, which allows upload filters, strikes a balance with the protection of copyright and the freedom of expression and information stipulated in the European Charter of Fundamental Rights. These two decisions would shed lights on the constitutional controversy provoked by recently amended clause of the Telecommunications Business Act.