Requirements for liability for damages against defamation by neglecting a notice that defames another person's reputation on the Internet.

In order for an online homepage operator, who is an online service provider, to be held liable for damages caused by defamation when he/she neglects to post a content that defames another person's reputation on his/her electronic bulletin board, he/she shall be held liable for damages to the operator without justifiable grounds. Whether he/she is liable for the deletion shall be determined by taking into account the following: the purpose of the posting, content, period and method of posting, degree of damage caused by the posting, relationship between the posting person and the victim, whether the counterarguments or not a demand for deletion has been made; the nature and size of the relevant site; the extent of opening, the time when the operator knew or could have known of the contents of the posting; and the technical and economic difficulty of deletion; barring special circumstances, it cannot be said that the operator always has the duty to delete the article immediately on the ground that it was posted on the bulletin board provided by the website operator; and that the operator knew or could have known it.

Article 751 of the Civil Act

Plaintiff (Seoul Northern Law Firm, Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Gyeong-do Cheong-do (Law Firm Sejong, Attorneys Jeon Jeon-soo et al., Counsel for the plaintiff-appellant)

Daegu District Court Decision 2002Na9163 delivered on November 13, 2002

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

1. On April 23, 201, the lower court unilaterally accepted the judgment of the first instance court, 12:14, and wanting to ask the plaintiff to the 2nd page of the Internet homepage operated by the defendant." No. 1, 200, "No. 4, 200, 200, 200, 200, 200, 200, 3:00, 4:00,000, 4:00,000,000,0000, 1:000,000,000,000,000: 4:0,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00.

Furthermore, the court below determined that the defendant is liable for damages caused by the violation of the duty of management of electronic message board as above, barring special circumstances, on the ground that the defendant had known or could have known that such defamation comments against the plaintiff had already been posted on the bulletin board prior to the plaintiff's explicit request for deletion by content certification, without taking proper measures such as immediately eliminating them, or neglecting them more than 52 days, without taking proper measures such as debate on the treatment of the plaintiff and the plaintiff, and the plaintiff neglected them, and therefore, the plaintiff suffered considerable mental suffering, and therefore, the defendant is liable for damages due to the violation of the duty of management of electronic message board as seen above, barring special circumstances.

2. In order for an online service provider to be held liable for damages caused by defamation when he/she neglects to post any content that defames another person on his/her Internet bulletin board that he/she manages, he/she shall be held liable for damages. Whether he/she is liable for the deletion shall be determined by taking full account of both parties’ response to the posting, such as the purpose, content, period and method of posting, degree of damage caused by the posting, relationship between the posting person and the victim, existence of the demand for counterarguments or deletions, the nature and size of the relevant site, the degree of opening, the time the operator knew or could have known of the contents of the posting, the technical and economic difficulty of deletion, etc. Thus, barring special circumstances, it cannot be readily concluded that the operator has the obligation to delete the posting immediately on the ground that the operator posted a notice to another person on the bulletin board provided by the online service provider and knew or could have known the content of the posting.

Therefore, in this case where the plaintiff posted a counterargument at will whenever he becomes aware of the fact that a anonymous user posted a notice on the bulletin board of a non-profit military publicity site, and thereafter the plaintiff made an official request to delete the notice, and the defendant immediately thereafter, the defendant's person in charge of the defendant did not delete the notice. However, the court below should have determined that the defendant's duty to delete the notice was violated as a manager of the rest of the electronic bulletin board, focusing on the circumstances where he did not delete the notice even though he knew or could have known of the fact that he did not delete the notice, and the court below should have determined that the defendant, who was the manager of the non-profit military publicity site, was liable to delete the notice, by comprehensively taking into account all the circumstances revealed after hearing all the relevant facts as mentioned above, but did not reach such point. Accordingly, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the liability of the online service provider. The ground of appeal containing this purport is justified.

3. Therefore, the part of the judgment of the court below against the defendant is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)