[2] In a case where a telecommunications business operator provides user’s communications data after examining the formal and procedural requirements under Article 54(3) and (4) of the former Telecommunications Business Act upon the request of a prosecutor or the head of an investigating office, whether it may be deemed unlawful infringement of the user’s right to self-determination of personal information or the freedom of anonymous speech (negative in principle)

In addition, the freedom of expression guaranteed by Article 21 of the Constitution is an essential freedom for an individual to maintain dignity and value as a human being and to realize national sovereignty, and is also included in the protection area of anonymous speech to express and disseminate his or her ideas and opinions under anonymous or false name without disclosing his or her identity to anyone.

Meanwhile, the exercise of fundamental rights under the Constitution should be conducted within the scope that enables people to live a community with others and does not endanger other constitutional values or the legal order of the State. Thus, the right to self-determination of personal information or the freedom of anonymous speech may be restricted by law pursuant to Article 37(2) of the Constitution, if necessary for national security, maintenance of order, or public welfare.

[2] Where a prosecutor or the head of an investigating office requests a telecommunications business operator to provide communications data for an investigation under Article 54(3) and (4) of the former Telecommunications Business Act (wholly amended by Act No. 10166, Mar. 22, 2010); and where a telecommunications business operator examines the formal and procedural requirements prescribed in the aforementioned provision and provides a user’s communications data, barring special circumstances, barring special circumstances where it is objectively evident that the head of a prosecutor or investigating office abused his/her authority to request the provision of communications data, thereby infringing the user’s right to self-determination of personal information or freedom of anonymous speech cannot be deemed unlawful.

1. The right to self-determination of personal information derived from the dignity and value of human beings under Article 10 of the Constitution, the right to pursue happiness, and the right to privacy under Article 17 of the Constitution, refers to the right in which the subject of personal information determines to what extent he/she would know and use. Personal information subject to protection by the right to self-determination of personal information refers to any information that features the subject of personality, such as the body, faith, social status, status, etc. of an individual, and includes personal information that is formed or already disclosed in public life without being limited to information belonging to an individual’s secret territory (see, e.g., Supreme Court Decision 2012Da49933, Jul. 24, 2014).

In addition, the freedom of expression guaranteed by Article 21 of the Constitution is an essential freedom for an individual to maintain dignity and value as a human being and to realize national sovereignty, and is also included in the protected area of the freedom of anonymous speech to express and disseminate its ideas or opinions under an anonymous or fictitious name without disclosing his/her identity (see, e.g., Constitutional Court en banc Order 2008Hun-Ma324, 2009Hun-Ba31, Feb. 25, 2010).

Meanwhile, the exercise of fundamental rights under the Constitution should be done within the scope that enables people to live a community with others and does not endanger other constitutional values or the legal order of the State. Thus, the right to self-determination of personal information or the freedom of anonymous speech may be restricted by law pursuant to Article 37(2) of the Constitution, if necessary for national security, maintenance of order, or public welfare.

2. The lower court determined that the Defendant is liable for damages against the Plaintiff since the Defendant violated the Plaintiff’s duty to protect the Plaintiff’s personal information faithfully, thereby infringing on the right to self-determination of personal information

A. First, the lower court acknowledged the following facts based on the adopted evidence.

1) The Defendant is an Internet comprehensive business operator operating a Internet portal site, and is a telecommunications business operator under the Telecommunications Business Act. To use various services provided by NAV, the Defendant is required to file an application for subscription in accordance with the form and consent to the terms and conditions determined by the Defendant. Article 7 of the terms and conditions of use of the Defendant provides that “The Defendant shall endeavor to protect the personal information of its members as prescribed by the relevant Acts and subordinate statutes, such as the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.” The relevant laws and the Defendant’s personal information handling policies are applicable to the protection and use of personal information.” The Defendant’s “Personal Information Handling Policy” provides that the Defendant’s personal information is used within the scope notified by the Defendant of the collection and use purpose of personal information of the user without the prior consent of the user, and it does not, in principle, use the user’s personal information beyond the scope or disclose the user’s personal information to the outside without the user’s prior consent.” In addition, the Defendant’s “personal Information Handling Policy requires an investigative agency to immediately verify the implementation issue through its implementation process.”

2) On October 10, 2004, the Plaintiff joined the above terms and conditions as a member and concluded a service use contract with the Defendant, and worked as a member of the instant carpet, which was opened in NAV. On March 4, 2010, the Plaintiff searched the Internet search around March 4, 2010, and Nonparty 1, the Minister of Culture, Sports and Tourism, as at the time Nonparty 2 was returned to Nonparty 1’s players, who was the head of the Kucuk Olympic Winter Games, returned Nonparty 2, who was the head of the Red Cross, and discovered that Nonparty 2, who was the second players, was posted a photo that brided up on the face, and that was posted on the instant carpet bulletin board.

3) On March 5, 2010, the Minister of Culture, Sports and Tourism filed a complaint against the person who posted the instant notice on the Internet as a crime of defamation. Accordingly, on March 8, 2010, the head of the Seoul Southern Police Station requested the Defendant to present the Plaintiff’s personal information upon a written request for the provision of data stating a reason for the request: Violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation) and the relevant user’s relationship: Investigation of the relevant suspect; etc.; the Defendant provided the Defendant to the head of the Sejong Police Station the Plaintiff’s “Nberia ID, name, resident registration number, e-mail address, cell phone number, and the date of the

4) On April 28, 2010, the chief of the police station summoned the Plaintiff based on the communication data provided as above and investigated the suspicion of defamation. However, on April 28, 2010, the complaint against the Plaintiff was withdrawn and the case was concluded.

B. Based on the aforementioned factual basis, the lower court determined that the Plaintiff’s act of providing personal information to an investigative agency, including the Plaintiff’s resident registration number and personal information protection, cannot be deemed as impairing the minister’s reputation in light of the following: (a) the Defendant, who is a telecommunications business entity, has the ability to properly protect the user’s personal information by examining whether to provide personal information in accordance with an individual case; (b) specifically, taking into account the degree of illegality by balancing legal interests infringed upon; (c) whether to provide personal information by taking into account the degree of importance and urgency of the case; and (d) whether to provide personal information to a certain extent; and (e) the Plaintiff’s act of providing personal information to an investigative agency, such as the Plaintiff’s resident registration number and personal information, cannot be deemed as infringing upon the Minister’s reputation; and (e) the Plaintiff’s personal information protection and personal information cannot be deemed as unlawful on the ground that the Plaintiff’s act of providing the above notice to an investigative agency without direct production or editing.

3. However, we cannot agree with the judgment of the court below for the following reasons.

A. Article 54(3) of the former Telecommunications Business Act (wholly amended by Act No. 10166, Mar. 22, 2010; hereinafter the same shall apply) provides that “a telecommunications business operator may comply with a request for perusal or submission of communications data, such as a user’s name, resident registration number, address, telephone number, computer system, and computer system or communication network identification code to identify the legitimate user of the user, and the user’s subscription or termination date, so that the telecommunications business operator can legally provide communications data in response to the request of an investigative agency (see Constitutional Court en banc Decision 2010Hun-Ma439, Aug. 23, 2012).”

In addition, Article 54(4) of the Telecommunications Business Act provides that the request for provision of communications data under the above Paragraph (3) shall, in principle, be made in writing (hereinafter “written request for provision of data”) stating reasons for the request, relation with the relevant user and the scope of necessary data.

B. In order for a telecommunications business operator to provide the telecommunications data in response to a request from an investigative agency for the provision of the telecommunications data under each of the above provisions to be illegal, the telecommunications business operator should be recognized as having the duty of the telecommunications business operator to actually examine the specific contents of the individual case upon the request of the investigative agency for the provision of the data. However, the telecommunications business operator cannot be deemed

1) Article 54(3) and (4) of the Telecommunications Business Act provides that a prosecutor or the head of an investigating agency may comply with a request for provision of communications data in a written request for provision of data stating a reason for the request for an investigation, relation with the relevant user, the scope of necessary data, and a telecommunications business operator’s request for provision of communications data. This does not provide for a telecommunications business operator to substantially examine whether to provide data by examining the specific details of individual cases. The same applies even when examining the functions and roles of the organization in exclusive charge of communication secrets established under Article 54(8) of the Te

In reality, it is difficult to request or expect a practical examination of the specific contents of individual cases, such as the balancing of interests between the benefits to be achieved by providing communication data, such as infringement of fundamental rights suffered by the relevant user by providing communication data to an investigative agency, and the importance and urgency of the case. Rather, if such a review is conducted by a telecommunications business operator, it is more likely to cause the leakage of suspected facts or other separate invasion of privacy during the process.

2) Demanding a telecommunications business operator to provide telecommunications data pursuant to Article 54(3) of the Telecommunications Business Act to conduct the above substantive review is inconsistent with the legislative intent of setting the method and procedure for providing telecommunications data differently from other personal information on telecommunications.

In other words, according to the Protection of Communications Secrets Act, if an investigative agency intends to request a telecommunications business operator to provide data verifying facts of communications, such as the date and time of the subscriber, the commencement and termination time of telecommunications, the number of subscriber numbers, the number of use, the data on computer communications or the Internet log-records concerning the facts using telecommunications services by users of the computer communications or the Internet, the data on tracking the location of information communications apparatus connected to the information communications network, the data on tracking the location of the sending base station where users of the computer communications or the Internet can confirm the location of information communications apparatus connected to the information communications network, and the data on tracking the contact locations used for linking the information communications network (Articles 2 subparag. 11 and 13), the court’s permission should be obtained (Articles 6 and 9).

In addition, in the case of telecommunications the transmission and reception of which are completed, it is required to seize it by a warrant issued by a judge according to article 106, article 107, article 219 of the Criminal Procedure Act.

As can be seen, current or past telecommunications content or external information can be provided only with a court permission or a judge’s warrant. However, Article 54(3) and (4) of the Telecommunications Business Act allows telecommunications business operators to provide communications data corresponding to the personal information of users only with a written request of an investigative agency. This is to be deemed to allow telecommunications business operators to cooperate in investigation by providing communications data upon a written request of an investigative agency stating certain matters without a court’s permission or a judge’s warrant with respect to the relevant communications data for prompt and other crimes in accordance with the content and nature of the relevant personal information.

Therefore, it is not consistent with the legislative intent of Article 54 of the Telecommunications Business Act to impose the above substantive examination obligation on the telecommunications business operator in addition to such formal and procedural requirements.

3) Article 54(3) of the Telecommunications Business Act provides a user’s communications data at the request of an investigative agency on the personal information of the user, which falls under the information that should be verified most fundamental and prompt to identify the suspect and the victim of the crime at the most early stage of investigation. In contrast to the fact that the provision of communications data by the telecommunications business operator can achieve an important public interest such as prompt response to the crime, the private interest restricted by the provision of communications data is limited to the personal information of the user in question.

In addition, the investigative agency is obliged to strictly maintain the secrets acquired in the course of investigation under Article 198(2) of the Criminal Procedure Act, and the degree of infringement of private interests caused by the provision of personal information to the investigative agency is relatively small. Therefore, if the investigative agency requests the provision of communications data by meeting the formal and procedural requirements, it is reasonable to respond to the request in principle.

(c)In the case of a telecommunications business operator's abuse of the authority to request the provision of communication data at the request of an investigative agency, there is also a possibility that the basic rights of the user's personal information may be infringed unfairly due to the provision of the user's personal information to an investigative agency.

However, in principle, control over abuse of authority by an investigative agency shall be conducted directly with the State or the pertinent investigative agency. Even in cases where an investigative agency requests for the provision of communications data, recognition of the duty of substantial review by a telecommunications business operator and the responsibility for the provision of such data is nothing more than transfer to the State or the relevant investigative agency. Therefore, if communications data are provided due to abuse of authority by an investigative agency and the fundamental rights of the user’s personal information were infringed upon, the responsibility is reasonable to directly pursue such request, not to the telecommunications business operator who provided such data, but to the State or the relevant investigative agency.

D. Therefore, if a prosecutor or the head of an investigating office requests a telecommunications business operator to provide communications data for an investigation pursuant to Article 54(3) and (4) of the Telecommunications Business Act, and a telecommunications business operator provides a user’s communications data after examining the formal and procedural requirements prescribed in the aforementioned provision, barring special circumstances where it is objectively evident that a prosecutor or the head of an investigating office’s abuse of his/her authority to request provision of communications data, thereby infringing the user’s right to self-determination of personal information or the freedom of anonymous speech, etc., cannot be deemed unlawful.

In this case, upon a victim’s complaint claiming defamation, the head of the police station, the head of the investigating agency, requested the Defendant to provide communications data on the instant notices to the Defendant, who is a telecommunications business operator pursuant to Article 54(3) and (4) of the Telecommunications Business Act for the investigation, the Defendant provided the Plaintiff’s name and resident registration number, and other communication data according to the requirements and procedures prescribed under the above provision. In this case, although the Defendant provided the Plaintiff’s e-mail address, the e-mail address is attached to the Plaintiff’s NAD, and it cannot be deemed that the e-mail address exceeded the scope of provision under Article 54(3) of the Telecommunications Business Act because it is difficult to evaluate that personal information separate from the Plaintiff’s NAD contains personal information, and there is no other special circumstance, such as the objective apparent that the head of the final police station requests the provision of communications data by abusing his/her authority, or that there was a risk of unfairly infringing the Plaintiff’s

Therefore, the defendant's offering of the plaintiff's communication data at the request of the chief of the police station cannot be viewed as legitimate acts under Article 54 (3) and (4) of the Telecommunications Business Act, and thereby, the defendant is liable for damages against the plaintiff.

E. Nevertheless, the lower court determined otherwise that the Defendant violated the Plaintiff’s right to self-determination of personal information and the freedom of anonymous speech, and recognized the Defendant’s liability for damages against the Plaintiff. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of review for provision of communications data by telecommunications business operators under Article 54(3) of the Telecommunications Business Act, requirements

4. Therefore, without examining the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)