독일에서의 규제 논의의 현황과 과제 - 독일 네트워크법(NetzDG)과 EU 디지털서비스법(DSA)을 중심으로 -

Regulation is an inevitable limitation in running a country, in reconciling the interests of individuals, and in balancing the interests of individuals and the public interest. However, there are various side effects that can be caused by this regulation, so there have been various discussions and attempts to deregulate, change regulatory methods, and regulatory sandboxes for a long time. In this article, we look at the changes in regulatory methods in Germany and Europe in response to recent technological developments. Recently, the so-called regulated self-regulation has been widely used around the world, and this change to regulated self-regulation was examined through the German Network Act and the EU Digital Services Act. In practice, the direct restrictions on internet service users are not imposed by state authorities, but by service providers. However, service providers do not infringe by their own decision, but are forced to take measures such as deletion or blocking that may violate users' fundamental rights due to the state's exercise of public power of surveillance and supervision. From a constitutional perspective, it is unclear whether this should be viewed as a restriction of fundamental rights by the exercise of public power, or whether it should be viewed as a conflict of fundamental rights in which an individual's fundamental rights are infringed by a third party, resulting in a third-party effect issue, or a private relationship that should be resolved as a civil matter. If this is the case, the question of how the freedom of expression of the content creator or disseminator can be guaranteed will arise in practice, and the criticism of private censorship by the service provider cannot be avoided. It is instructive to note that European laws provide procedural guarantees to reduce the threat of violations of fundamental rights, such as the provision of procedural guarantees and review by an independent body such as a third-party commission. If regulated self-regulation is necessary, it should be designed in a way that reduces the risk of infringement of users' fundamental rights as much as possible and involves the least amount of state intervention, while giving the industry the freedom to set up and apply regulatory methods as it sees fit.