The case holding that the act of sending e-mail using the function of setting and reproducing blocks from the e-mail address register opened on the healthy-related Internet website to the community members using the function of opening and copying the blocks to the community members and then attaching the e-mail address to the e-mail address book and then does not constitute an act of collecting e-mail using a technical device as referred to in Article 50-2 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection

The case holding that an act of sending e-mail using a technical device as referred to in Article 50-2 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7812, Dec. 30, 2005) does not constitute an act of collecting e-mail addresses using the technical device as referred to in Article 50-2 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7812, Dec. 30, 2005) after accessing the community that was opened

Articles 50-2 and 65-2 subparag. 3 (see current Article 65(1)5) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 7812, Dec. 30, 2005)

Defendant

Hospital:

Attorney Lee In-bok

The defendant shall be innocent.

1. Summary of the facts charged in this case

The summary of the facts charged of this case is as follows: from around 11:05 on March 15, 2005 to around 11:00 on June 16, 200 of the same month, at the Daejeon Dong-gu's (detailed address omitted), Non-Indicted 1's office of video gathering; in order to advertise the video hosting site operated by the above Non-Indicted 1, the Defendant connected the server managed by Non-Indicted 2 Co. 1, whose members are the members, to collect the e-mail address records of the members without the consent of the manager; and then, the Defendant sent approximately 12 hours 5,00 books advertising the above video hosting site to the persons recorded in the address book, and used them for the transmission of information.

2. Determination:

A. Summary of the defendant and prosecutor's assertion

The Defendant asserts that in the e-mail address register opened on the website of “(website name omitted)”, the Defendant used to copy the e-mail address of its members using the function of setting and reproducing blocks to the community members, and then used to read “refinite” as “refinites” in the “refinites” column, which was provided on the website, and sent e-mail after attaching the e-mail address reproduced in the e-mail address column, and did not collect the e-mail address using any technical device.

The prosecutor asserts that the act of sending e-mail using the e-mail address by blocking and copying the e-mail address using the e-mail address, using the function attached to the e-mail address, also collecting the e-mail address using the technical device, and using the collected e-mail address (in addition, it seems that the act of sending a large quantity of e-mail at a short time includes the assertion that collecting the e-mail address and sending the e-mail appears to have

B. Details of the relevant provisions are as follows:

former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7812, Dec. 30, 2005; hereinafter “Act”)

Article 50-2 (Prohibition on Unauthorized Collection of Electronic Mail Addresses)

(1) No one may collect e-mail addresses from an Internet homepage without prior consent of the operator or manager of the Internet homepage automatically by a program for collecting e-mail addresses or any other technical device.

(2) No one may sell or distribute electronic mail addresses collected in violation of paragraph (1).

(3) No one may knowingly use an electronic mail address, the collection, sale, and distribution of which are prohibited pursuant to paragraphs (1) and (2), for the transmission of information.

A person who falls under any of the following subparagraphs shall be punished by a fine not exceeding 10 million won:

3. A person who has used electronic mail addresses for the collection, sale, distribution or information transmission in violation of Article 50-2;

(c) Markets:

In order to punish an e-mail pursuant to Article 65-2 subparag. 3 and Article 50-2(1) of the Act, the e-mail address must be collected without prior consent from the Internet homepage or manager, and furthermore, the e-mail address should be collected through a program and other technical devices that collect e-mail automatically from the Internet homepage. Article 50-2 of the Act was newly established at the time of amendment by Act No. 6797, Dec. 18, 2002. The legislative intent of the Act was to prevent the collection, sale, distribution, and use of e-mail address by means of a program that automatically extracted e-mail address from the Internet homepage that explicitly expresses the intent to refuse to collect e-mail address.

Although the function of the window that makes it possible to reproduce the content by setting up and reproducing the block using the e-mail, it is difficult to view it as using “other technical devices” in light of the legislative intent of Article 50-2 of the “Act”. Furthermore, as alleged by the Defendant, it is difficult to deem that Defendant’s act of sending e-mail using the public e-mail address of the community members on the website of “(web name omitted)” without prior consent of the Internet homepage or manager of the e-mail address without any prior consent.

However, it is not possible to exclude the possibility that the defendant used the technical device in light of the quantity of the sent e-mail, but the facts charged in the criminal trial should be proven by the prosecutor, and the judge should find the defendant guilty with probative evidence that leads to the conviction of the facts charged to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it cannot be determined with the benefit of the defendant. Even if there is a majority of the dispatched e-mail, the judgment unfavorable to the defendant cannot be made.

3. Conclusion

Thus, the facts charged of this case constitute a time without proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Jong-il