2013Kahap161 and/or 201. Provisional measures against defamation and false publication and insult

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Law Firm Doz., Attorneys Kim Jong-soo, Kim Jong-chul, and Kim-young

[Lawsuit]

Representative In-house Directors**

Attorney Yoon-sung et al., Counsel for the defendant-appellant

oly 16, 2013

1. 피신청인은, 이 결정을 송달받은 날부터 6개월 동안, 신청인이 피신청인에게 ' ▦▦▦ ▦▦ ▦▦▦ ' 인터넷 사이트 ( 생략 ) 에 게시된 별지1 [ 일부 생략 ] 목록 기재 게시글 또는 댓글의 삭제를 요청하는 경우 [ 다만 신청인이 위 게시글 또는 댓글의 URL 주소 ( uniform resource locator, 인터넷상 파일 주소 ) 를 특정하여 피신청인에게 요청한 경우에 한한다 ], 그 요청을 받은 시각으로부터 2시간 이내에 위 게시글 또는 댓글을 위 인터넷 사이트에서 삭제하여야 한다 .

2. Where the respondent fails to perform the obligations set forth in paragraph 1, the respondent shall pay 50,00 won to the applicant for each violation ( even if the respondent's violation of the obligation to the applicant for once of the violation is deemed to have been committed, a violation of the obligation to the applicant for once of the violation shall be deemed to have been committed) whenever the duration of the violation expires by one hour (one hour of all of the units shall be calculated as one hour).

3. Paragraphs 1 and 2 shall be subject to the condition that the applicant pays 50 million won as security for the respondent or submits a payment guaranty insurance policy with the above amount as the insured amount.

4. The applicant's remaining applications are dismissed.

5. 2/3 of the costs of lawsuit shall be borne by the Claimant and the remainder by the Respondent, respectively.

1. 피신청인은 자신이 운영하는 ' ▦▦▦▦▦ ▦▦▦ ' 인터넷 사이트 ( 생략 ) 에 신청인의

실명과 이를 유추할 수 있는 ' △△△ ', ' ▲▲ ', ' ▷▷▷ ', ' ▶▶▶ ' 등 이니셜 또는 두

Rape, sexual assault, sexual assault, sexual indecent act, red, radar, species without reasonable grounds;

북, 좌좀, 좌빨, 똥꼬충, 호모새끼 등 명예훼손 및 모욕하는 게시글이 올라왔을 경우

such measures as deletion, removal, or transfer, etc. to a deferred bulletin board;

No notice shall be neglected to be exposed to any other person for at least one minute.

2. The respondent's personal information, telephone number, address, and photograph of the applicant on the website specified in paragraph (1);

If a notice is posted without the consent of the applicant, etc., it shall be deleted or removed;

(1) At least one minute of the same notice, such as moving to the withheld bulletin board, shall be exposed to others;

shall not be left alone.

3. Where the notices listed in paragraphs (1) and (2) are left unattended for not less than one minute, the respondent shall pay one million won per case.

H. D. Payment to the applicant

4. The respondent shall publish a notice that slanders the applicant on the Internet site set out in paragraph 1;

The following shall not be searched on a major portal site:

5. In case where the respondent fails to perform the obligations referred to in paragraph (4), one million won per day of the number of days of violation shall be added.

(B) pay to the applicant.

1. Facts supporting the records;

가. 피신청인은 ' ▦▦▦▦▦ ▦▦▦ ' 인터넷 사이트 ( www. ilbe. com, 이하 ' 이 사건 인터넷 사이트 ' 라 한다 ) 를 운영하는 회사로서 「 정보통신망 이용촉진 및 정보보호 등에 관한 법률 」 ( 이하 ' 정보통신망법 ' 이라 한다 ) 제2조 제1항 제3호의 ' 정보통신서비스 제공자 ' 이다 .

나. 이 사건 인터넷 사이트에는 2012. 11. 경부터 이 사건 결정일 현재까지 사이에 , 신청인을 ' 강간범, 성폭력범, 성추행범, 홍어, 전라디언, 종북, 좌좀, 좌빨, 똥꼬충, 호모 새끼 ' 등으로 지칭하거나, 욕설, 비속어, 모멸적 표현, 협박성 단어 등을 사용하여 신청인을 모욕, 비하하거나 인신공격하는 게시글 또는 댓글 ( 이하 ' 신청인에 대한 비방글 ' 이라고만 한다 ) 이 계속적으로 게시되고 있다 .

2. Summary of reasons for the application;

The respondent deleted Slanders against the applicant, taken measures such as temporary blocking (bloding off) against the applicant, temporary prohibiting group, designation of search, restriction on search access (Prohibition of Automatic Search) against the portal site, and request for deletion of search records against the applicant, as a provider of information and communications services operating the Internet site of this case, so that information infringing the applicant's personal rights or privacy is not distributed at the Internet site of this case, or taken measures such as warning, suspension of use, etc. against the person who repeatedly prepares search records against the applicant. However, the respondent’s Slanders against the applicant was left unattended for a long time on the Internet site of this case. Accordingly, based on the applicant’s personal rights, the respondent sought provisional disposition such as the purport of the application.

3. Related statutes;

The relevant provisions of the Information and Communications Network Act shall be as shown in attached Form 2.

4. Determination

(a) Degree of the required vindication;

The provisional disposition to determine a temporary position as stipulated in Article 300(2) of the Civil Execution Act is an urgent and provisional disposition permissible only when the person having the right to the provisional disposition has the reason to avoid present significant damage or prevent imminent danger, and among them, in the case of the so-called satisfactory provisional disposition which form the same legal relationship with the content that the person having the right to the provisional disposition intends to obtain through the judgment on the merits as in this case, it would result in the same result as the person having the right to the applicant ultimately satisfied before the judgment on the merits is rendered. On the other hand, in consideration of the fact that the respondent would have caused such a result before he/she receives an opportunity to see it through the lawsuit on the merits, it is required to explain the necessity of the right to be preserved and the necessity of the preservation to a higher level than the ordinary preservative measure.

B. Relevant legal principles

In order for an online site operator, which is a provider of information and communications services, to impose liability on another person when he/she damages the reputation of another person on his/her Internet site or neglects to state his/her personal rights, he/she must do so without justifiable grounds. In such cases, whether the operator is obligated to delete the notice to the operator shall be determined by taking into account the following: (a) the purpose of the notice; (b) content; (c) the period and method of posting; (d) the degree of damages incurred therefrom; (e) the relationship between the bulletin operator and the victim; (b) the degree of response to the notice; (c) the nature and size of the relevant Internet site; (d) the extent of opening the notice; (e) the time when the operator knew or could have known of the contents of the notice; and (e) the technical and economic difficulty of deletion. However, barring any special circumstance, the Supreme Court en banc Decision 200Da28427, Jun. 27, 2002 cannot be said to have immediately deleted the notice on the Internet site.

C. Determination

1) The extent of defamation and infringement of personal rights against an applicant

As seen above, the Internet site of this case has been posted for a long time on the Internet site of this case, and is continuously posted as of the date of the decision of this case. However, in light of the various circumstances indicated in the records, such as the language and text of the Slander, specific expressions, the period of posting, the purpose or motive of posting, and the repetition of posting, etc., the degree of damage to the Claimant's reputation or infringement on the Claimant's personality rights is deemed to be considerably significant, and therefore, it is determined that the illegality of the Slander against the Claimant not only remains, but also it reaches an obvious degree.

2 ) 인용 부분의 피보전권리 및 보전의 필요성가 ) 기록 및 심문 전체의 취지에 의하면, ① 이 사건 인터넷 사이트는 누구나 쉽게 접근하여 게시글 또는 댓글을 올리거나 이를 볼 수 있는데, 이 사건 인터넷 사이트의 운영자인 피신청인은 많은 사람이 이 사건 인터넷 사이트에 접속하기 때문에 그로 인한 광고 수입을 올리고 있는 것으로 보이는 점, ② 신청인은 2013. 4. 경부터 최근까지 피신청인에게, 이 사건 인터넷 사이트에 게시된 신청인에 대한 비방글의 삭제를 꾸준히 요청하여 온 점, ③ 피신청인은 신청인으로부터 삭제를 요구받은 신청인에 대한 비방글을 삭제하거나, 이 사건 인터넷 사이트에서 " ○○ " 이라는 단어를 사용 금지어 ( 금 칙어 ) 로 지정하는 등의 노력을 기울이고 있기는 하나, 이 사건 인터넷 사이트의 사용자들은, ' △△ ', ' ▲▲▲ ', ' ▷▷▷ ', ' ▶▶▶ ' 등과 같이 신청인의 이름을 다소 변형하는 식으로 신청인을 특정한 다음 신청인에 대한 비방글을 계속하여 올리고 있는 점 등의 사정이 소명된다. 한편, ④ 피신청인은 정보통신서비스 제공자로서 정보통신망법 제44조의2 제2항에 따라 사생활 침해나 명예훼손 등 타인의 권리를 침해하는 정보에 대한 삭제 요청을 받는 경우 지체 없이 삭제 또는 임시조치 등의 필요한 조치를 취할 의무가 있다 .

B) In full view of the above circumstances, it is reasonable to view that the respondent has an obligation to delete information or comments (all comments on the applicants) on the separate sheet No. 1 from the Respondent at least when requested to delete the comments or comments. Accordingly, the necessity for the preservation of provisional disposition is clearly explained within the same extent as that stated in the Disposition No. 1. (1). (2) The applicant posted on the Internet site almost slanders on the Respondent's request for deletion is limited to comments on the Respondent, so it is difficult for the Respondent to delete the Respondent's obligation to delete the information or to delete the information on the Respondent's request by the Respondent on the grounds that it is difficult for the Respondent to delete the information or to delete the information on the Respondent's request by the Respondent on the grounds that it is difficult for the Respondent to delete the information on the Respondent's request by the Respondent on the grounds that it is difficult for the Respondent to delete the information on the Respondent's request by the Respondent on the ground that it is difficult for the Respondent to delete the Respondent's's obligation to delete or to delete the record.

C) In addition, as seen earlier, the illegality of slandering writing on the applicant posted on the Internet site of this case not only remains, but also is obvious. Therefore, the necessity of an order of indirect compulsory enforcement in preparation for the Respondent’s breach of duty in order to secure the effectiveness of the provisional disposition decision of this case is also explained (the amount of indirect compulsory enforcement shall be determined in 50,000 won each time when the duration of the Respondent’s breach of duty elapses, and even if the Respondent’s breach of duty in the notice, writing, or writing on comments on the multiple separate sheet 1, it shall be calculated as one time each time when the duration of the Respondent’s breach of duty expires.).

3) As to the prohibition of leaving the Internet site alone for more than one minute, the applicant asserts that the respondent bears a duty not to leave the Respondent’s Slander on the Internet site of this case for more than one minute. We examine the case where: (a) although the Respondent’s Slander on the applicant was posted for a short period of time on the Internet site of this case as alleged by the applicant, there is a risk of spreading to a large number of people by the strike of the Internet site of this case; (b) however, there is no evidence to view that the Respondent’s deletion within one minute from the time when the Respondent’s Slander on the Internet site of this case was published, and in light of the above legal principles, it is difficult to see that the Respondent bears a duty not to always monitor whether the Respondent slander on the applicant against the applicant on the Internet site of this case.

Therefore, this part of the claimant's assertion cannot be accepted.

B) With respect to the limitation on search of portal sites, the applicant asserts that the respondent is obligated to take measures to prevent the search engine of the portal site (referring to the site that provides the classification and search function, etc. of various information on the Internet as follows). However, there is no evidence suggesting that the respondent may take measures to prevent the search engine of the portal site only with respect to the slanders against the applicant on the Internet site. Furthermore, using the "robots.txt" or "Metacle" cited by the applicant can not be searched by the search engine of the portal site. Considering that the respondent obtains advertising income through the portal site, it is difficult to recognize that the respondent is obligated to actually suspend the business of the applicant prior to the judgment of this case, and therefore, it is difficult to accept the respondent's claim that there is no need to accept the aforementioned provisional disposition.

(C) As to the request for deletion to the portal site company, the applicant asserts that the respondent has the duty to request the business entity operating the portal site to delete the search records of slandered writing against the applicant. However, even according to the applicant’s assertion, the applicant himself/herself appears to be able to request the business entity operating the portal site to delete such search records (on August 29, 2013, 200), and such provisional disposition by the applicant’s assertion is difficult to recognize the need for its preservation. Accordingly, the applicant’s assertion on this part cannot be accepted.

D) As to measures against members

The Claimant asserts that the Respondent should take measures, such as warning and suspension of use against the Respondents. According to the record, some users of the Internet site of this case shall use the Respondent’s Slanders against the Claimant itself (a name referring to the user of the Internet site of this case) and publish this article on the Internet site of this case. The above act as mentioned above is the NAs itself, and the NAs itself criticizes, criticizes, or personal attacks the Claimant, and thus, the Respondent’s Bas can be a slander against the Claimant. However, it is difficult to recognize the need for the Respondent to take the above measures of the Claimant’s assertion. Accordingly, this part of the Claimant’s assertion cannot be accepted.

E) As to other allegations

On July 10, 2013: 23: 43, the Respondent’s operational performance claimed that the notice posted on the Internet site of this case (Evidence No. 42, 78 of Section A) itself is a slander against the Claimant. However, there is no evidence to deem the content as false on the record (which must be determined according to the result of a faithful examination of evidence). This is to inform the Respondent of the developments leading up to the dispute between the Respondent and the Respondent, and it does not seem to have an intention to defame the Respondent. Thus, the Claimant’s above assertion cannot be accepted.

5. Conclusion

Therefore, the application of this case is justified within the scope of the above recognition, and it is accepted as the condition of security, and the remaining application is dismissed as it is without merit. It is so decided as per Disposition.

J. J. J. J. J. J.

Judges Lee Jae-young

Judges et al.