인터넷에 의한 명예훼손의 준거법

Establishing the choice of law rules for defamation via the Internet is not an easy task. In the case of defamation, unlike general torts, the balance between the conflicting legal interests of freedom of expression and protection of reputation must be considered from the perspective of conflict of laws. Moreover, while when defamation is committed over the Internet, it is difficult to apply conflict of law rules based on the premise of physical space premised on reality. The difficulty of establishing conflict of law rules in cases of Internet defamation is also revealed in the fact that legislation in each country varies greatly. There are ways to designate a single governing law, such as (ⅰ) the law of the victim’s habitual residence, (ⅱ) the law of victim’s address, and (ⅲ) the law of the place of publication. Ways of designating multiple governing laws may include: (i) a method of adopting the principle of the law of the place of occurrence or the law of the place of publication, (ⅱ) a method of giving victims a choice regarding the governing law, (ⅲ) a method of designating the governing law according to the basis of jurisdiction. Recently, there has been an attempt to enact a treaty on the international jurisdiction and governing law of defamation through the Internet as part of an effort to uniformly regulate the governing law of Internet defamation, which differs in each country. The connecting factors that require review in Internet defamation are (ⅰ) the forum, (ⅱ) the place of publication, (ⅲ) the place where damage to the plaintiff’s reputation occurred, (ⅳ) the place where the defamatory post was uploaded, (ⅴ) the server location, (ⅵ) the victim’s habitual residence or address. Using the forum as a connecting factor is not appropriate because there is a high risk of forum shopping. The place of publication is not the place of occurrence itself, but merely a prerequisite for the place of occurrence. If the place of publication is used as a connecting factor, the laws of multiple countries where defamatory posts from the Internet have been downloaded are all viewed as the governing laws as the laws of the place of publication, and it will complicate legal relations. In case of a server location, it is not only easily manipulated by the defendant, but also impossible to predict, and is unilaterally advantageous to the defendant. For this reason, it is not appropriate to view the server location as a connecting factor. In the end, the appropriate connecting factors to be recognized as the governing law of Internet defamation are (ⅰ) the place where the defamatory post was uploaded (place of action), (ⅱ) the place where damage to the plaintiff’s reputation occurred (place of occurrence), and (ⅲ) the victim’s habitual residence. The place where damage to the plaintiff’s reputation occurred is the place of occurrence, which would be the country of habitual residence of the third party when the third party downloaded the defamatory post. However, if a reasonable third party thought that the post would not affect the plaintiff’s reputation, the place cannot be considered as the place in which damage to the plaintiff’s reputation occurred. On the other hand, the victim’s habitual residence is generally the place where the most severe infringement occurs, and where it is most important in forming the plaintiff’s reputation. Since the Revised Korean Act of Private International Law(hereinafter “KOPIL”) does not have any special rules regarding the governing law of Internet defamation, KOPIL Article 52 on the governing law of torts applies. The law of the place of action in Article 52, Paragraph 1 of KOPIL should be interpreted as ‘the law of the country where the defamatory post was uploaded’ rather than the law of the server location. The law of the place where the result occurred in Article 52, Paragraph 1 should be interpreted as ‘the law of the country where damage to the plaintiff’s reputation occurred’ rather than the law of the country of publication or the law of the country where the defamatory post was uploaded on the Internet. KOPIL Article 52, Paragraph 1 does not recognize restrictions based on foreseeability of the place of occurrence, but considering the aspect of freedom of expression, the law of the place of occurrence cannot be foreseen should be excluded through teleological reduction. The scope of application of the law of the place of occurrence should be viewed as limited to damages that occurred in that country. Meanwhile, Article 52, Paragraphs 2 to 4, and Article 53 of the KOPIL will also be applied in determining the governing law of Internet defamation. However, if a governing law that has nothing to do with the Internet defamation is designated due to a subordinate connection, it is believed that it can be excluded by application of Article 21 of the KOPIL. In determining the governing law for Internet defamation, it is necessary to establish special rules in light of the fact that the legal interests of freedom of expression and protection of reputation must be considered fairly and balanced from the perspective of conflict of law. In this paper, (ⅰ) the law of the country where the defamatory post was uploaded (the law of the place of action), (ⅱ) the law of the country where damage to the plaintiff’s reputation occurred (the law of the place of occurrence), (ⅲ) the law of the country of the victim’s habitual residence are deemed appropriate to become the governing law for Internet defamation. In establishing the conflict of law rules for Internet defamation, (ⅱ) was applied preferentially, but foreseeability of the perpetrator required, and a method of alternatively connecting (ⅰ) and (ⅲ) was proposed. Other methods than the conflict of law rules presented in this paper may be considered, but whatever conflict of law rules are established, there must be a balanced consideration of clarity and predictability, as well as the characteristics of the Internet, freedom of expression, and protection of reputation.