데이터 무단 이용에 대한 민법상 손해배상 청구가능성 및 해석론

Data has become both a tool for creating new value and a valuable asset in itself, and its unauthorized use can now be regulated under the Data Industry Act and the Unfair Competition Prevention Act. However, data still cannot be protected under property rights on civil law, and even when protected as an act of unfair competition, there are limitations to the scope of such protection. In particular, court rulings have shown a very restrictive stance on whether the rights of database creators are infringed. For these reasons, the need to regulate unauthorized data use under tort law has been raised. When interpreting the supplementary nature and unlawfulness theory of tort law, it appears that unauthorized data use can be governed by tort principles. For instance, while a non-competitor individual posting data on a blog may not constitute unfair competition, it could reaso- nably be deemed a tort under social norms. However, further discussion is needed regarding the condition that the act must be considered unlawful from the perspective of the overall legal system and societal standards. In this respect, the legal theory of tort under civil law differs from the Unfair Competition Prevention Act in that: ① it pursues a different objective, as the latter aims to prohibit unfair profit to competitors; ② it is not restricted by the specific requirements of the Data Industry Act or the “Ka” provision of the Unfair Competition Prevention Act, such as the need for data to be a data asset, be professionally offered, have a defined scope of recipients, be significantly accumulated through electronic means, be electronically managed, and involve technical or business information that is not a trade secret; ③ it allows for the possibility of injunctions; and ④ it differs in the presence or absence of special provisions regarding the causal relationship between the act and damage, and the calculation of damages.