온라인 플랫폼 등 ICT 분야에서 인공지능(AI) 필터링 기반 자율규제와 비례성원칙 ― 독일 논의를 중심으로 ―

Today, the emergence of large global online operators has made digital communication commonplace, and concurrently, digital illegal acts such as copyright infringement, insult, and defamation have also become routine. While the state is tasked with establishing preventive measures, the practical difficulties involved have made “self-regulation” by private operator associations a crucial alternative. However, within the framework of self-regulation, human-conducted prior censorship is no longer feasible, and automated algorithmic technologies utilizing Artificial Intelligence (AI) are already in widespread use. Contemporary self-regulation does not imply a total absence of state intervention; rather, it possesses an indirect basis in public law. This manifests as inducements for self-regulation through the statutory imposition of a duty of protection on operators towards users, or through state recommendations and support. However, as this now-ubiquitous approach represents a novel category in administrative law, Germany has expanded its constitutional basis through the concept of “powerful private entities” (or private actors exercising public authority). Although the state is traditionally the sole addressee of the duty to protect fundamental rights, it is recognized that, in reality, these powerful private entities can substitute for the state's position. Since self-regulation ultimately involves operators resolving conflicts between users in place of the state, the algorithmic implementation of the principle of proportionality —which culminates in the balancing of legal interests— is currently its core issue. In this context, the European Court of Justice ruled that Article 17 of the DSM-RL, which mandates the use of automated algorithmic filtering systems for copyright protection on digital platforms, does not infringe upon the essence of the principle of proportionality or the users' freedom of expression and communication. While this ruling is generally considered acceptable given that copyright is inherently compatible with filtering systems, some perspectives raise concerns about whether human freedom of expression is becoming subjugated by machines. If, however, freedom of political expression were to take the place of copyright, reliance solely on simple filtering systems under the guise of self-regulation would be untenable; instead, a new digital architecture must be constructed to algorithmically implement the principle of proportionality. Unlike copyright, freedom of expression is heavily dependent on the rigorous balancing of legal interests. Algorithms are now tasked with making decisions that strike a balance between copyright enforcement and the users' freedom of expression.