[2] The meaning of "other person's secret" under Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[3] In a case where the Defendant was prosecuted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. by violating other persons’ secrets processed, stored, and transmitted through an information and communications network by providing the pertinent fee-charging visitors’ name and other connection records while operating a site that traces the visitors on the enclosed subscriber’s website, the case affirming the judgment below convicting him on the ground that the above connection records constitute “the secrets of other persons” as stipulated in Article 49 of the same Act

1. As to the prosecutor's grounds of appeal

A. According to the reasoning of the judgment below, the court below acknowledged the facts in its reasoning based on the evidence duly adopted by the court of first instance, and found the Defendants guilty of the Defendants of the violation of the Information and Communications Network Act, on the following grounds: (a) each tracking program, which was circulated by the Defendants, is installed on the website of the pay members who applied for tracking service (the domain name "www.cyworld.com" hereinafter) of the Defendants; and (b) allow the Defendants to leak the information of the Defendants to the server of each visiting site operated by the Defendants; (c) the operation or use of the Defendant’s home head office was normally performed after the installation of the program; and (d) there was no evidence to deem that the Defendants interfered with the operation of the information and communications system, such as delaying access to the packaging server due to each tracking program, and thus, it cannot be deemed that it constitutes a malicious program that could interfere with the operation of the information and communications system under Article 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information Act”).

In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to malicious programs under Article 48 (2) of the Information and Communications Network Act as otherwise alleged in the ground of appeal.

B. The prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the guilty portion of the judgment below, but did not submit the grounds for appeal.

2. As to Defendant 2’s ground of appeal

Article 49 of the Information and Communications Network Act refers to a fact that is not generally known and that does not notify other persons of such fact (see, e.g., Supreme Court Decisions 2005Do7309, Mar. 24, 2006; 2006Do6389, Jun. 28, 2007).

According to the reasoning of the judgment below, the court below acknowledged the facts in its reasoning based on the evidence duly adopted by the court of first instance, and affirmed the judgment of the court of first instance which convicted Defendant 2 of the facts charged as to the violation of the Information and Communications Network Act by Defendant 2's act of violation of the Act on Promotion of Information and Communications Network Utilization and Information and Communications Network Utilization and Information Protection, on the following grounds: (a) Defendant 2's access records, such as ID, date and time of the visit, access intellectual property, name, and the name of the operator of the unit of the unit of the U.S. that was visited before the visit; (b) the ordinary members cannot be known; and (c) in the case of the unit of the unit of the U.S. unit of personal information beyond the mere confirmation source of the door-to-face visit, which are personal information, are interests of the visitors, on the premise that such information is not disclosed to others; and (d) the above visit's access records constitute "other's secret" under Article 49 of the Information and Communications Network Act.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Conclusion

Therefore, all appeals by a prosecutor and Defendant 2 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)