‘잊혀질 권리’와 ‘잊혀질 수 없는 권리’의 긴장과 조화, 그리고 법적 함의

The Internet, which emerged with the development of information and communication technology, is positive in that anyone can transparently access public information and anyone can participate in the formation of information. However, on the other hand, it can be harsh for someone who wants to erase the traces of the past, as they are restricted in their choice of whether or not to disclose their information. In this “age of search,” where the past can be easily recalled, the issue of “the right to be forgotten” that is discussed in this article is the issue of “the right to be forgotten,” which is the desire to be forgotten. However, the right to be forgotten is being approached differently in each country, and even in the EU's GDPR, the only legislative case that has codified it as a general right, the substantive requirements, such as the categories of rights, exercise requirements, and implementation obligations of the subjects, are very uncertain, and the status as a legal concept is still weak. The biggest problem is that the content of the right to be forgotten creates a relationship of tension with other basic rights, such as freedom of expression, depending on how it is constructed. This article uses the term “right not to be forgotten” to describe this. This study considers what kind of rights we should recognize in the context of harmonization of fundamental rights and which categories of rights should be reconstructed in concrete terms. If the right to be forgotten is constructed as a right that is biased toward one side of a specific legal interest without such benefit quantification, it becomes an incomplete right that raises the possibility of unconstitutionality in many situations, causing legal instability for both rights holders and obligors. The direction of legislation of the right to be forgotten proposed in this article is not a comprehensive form of right with various powers. It is a limited form of right that is premised on the existence of a third public purpose that should prioritize private interests (information subjects) over other fundamental rights. For example, the special protection of children and adolescents can be cited. The reason is that if the issue of restriction of fundamental rights, which is the most serious risk that arises from the realization of the right to be forgotten, is covered by laws with clear public purposes, such as laws on the protection of children and adolescents, it can be balanced to some extent from the perspective of benefit-measurement, making it easier to persuade the validity and practical benefits of the legislation. The direction of legislation proposed in this study is expected to serve as an academic foundation for discussions on the realization and legalization of the right to be forgotten in the future.