[1] In a case where a web site constitutes “information with a content that commits an act prohibited by the National Security Act” and satisfies the remaining requirements under Article 44-7(3) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., whether the Korea Communications Commission may issue an order to suspend web hosting services on the web site (affirmative)

[2] Requirements for ordering rejection, etc. of handling pursuant to Article 44-7(3) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., which is a collection of individual information itself

[1] Considering that the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Information and Communications Network Act”), the meaning of information, communications, information and communications services, etc., and “information that carries out acts prohibited by the National Security Act” against the provider of information and communications services, etc., the forms and details of Articles 2(1)1, 2(2), 44-7(1)8, and 44-7(3) of the former Information and Communications Network Act concerning the order to refuse, suspend, or restrict the handling of information, etc., which constitutes an act prohibited by the National Security Act, including the act of receiving and distributing information from the web site to its users or other specific production methods, which constitutes an act prohibited by the former Information and Communications Network Act, and thus, the act itself constitutes an act prohibited by the former Information and Communications Network Act, i.e., providing information to its users or operators, etc.

[2] In order to issue an order to refuse to handle, etc. pursuant to Article 44-7(3) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Information and Communications Network Act”), individual information existing on a web site, in principle, falls under the category of information prohibited from distributing under paragraph (1) 8. However, even if part of individual information existing on the web site falls under such category, considering all the circumstances such as the intent to produce the web site, the relationship between the web site operator and the person preparing the web site, the system of the web site, the content of the bulletin, the weight of unlawful information in the notice, etc., the whole web site may be evaluated as information that violates Article 44-7(1)8 of the former Information and Communications Network Act, and if it is inevitable to suspend the web site, it may be ordered to exceptionally suspend the web site.

[1] Articles 2(1)1, 2(2), and 44-7(1)8 and (3) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 11690, Mar. 23, 2013); Article 2 subparag. 1 of the former Framework Act on Information and Communications Network Promotion (Amended by Act No. 9705, May 22, 2009); Article 2 subparag. 2 and 6 of the Telecommunications Business Act / [2] Article 44-7(1)8 and (3) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 11690, Mar. 23, 2013)

An advancement Network Center (Law Firm Yang Jae-in, Attorneys Kim Han-ju et al., Counsel for the plaintiff-appellant)

Korea Communications Commission (Government Law Firm Corporation, Attorneys Cho Min-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Nu13582 decided November 1, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. First, whether the “Refusal, etc. to handle information” under Article 44-7(3) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Information and Communications Network Act”) includes the suspension of web hosting services on a website.

(1) Under Article 2 subparag. 1 of the former Framework Act on National Informatization Promotion (wholly amended by Act No. 985, May 22, 2009), the term “information” means “any kind of data or knowledge expressed in codes, letters, voice, sound, image, etc. by processing them by optical or electronic means for a specific purpose” (Article 2(2)); and “information and communications network” means “information and communications system that collects, processes, stores, searches, transmits, or receives information by using telecommunications facilities and equipment under Article 2 subparag. 2 of the Telecommunications Business Act and computers and computer technology” (Article 2(1)1 of the former Framework Act on National Informatization Promotion), “information and communications services” means “providing or mediating information using telecommunications services and telecommunications facilities and equipment,” and “providing or mediating information to provide such information” (Article 2(1)2 of the National Security Act). In this context, the term “telecommunications service” means a provider that does not request information and communications services from the Korea Communications Commission to rectify information and communications networks or to provide such information to any other person” (Article 4).

(2) In addition to the forms and contents of each provision regarding an order to refuse, suspend, or restrict the handling of information under the former Information and Communications Network Act, the meaning of information and communications services, and information and communications service providers, etc., and ① website (webs) systematically and systematically integrates multiple individual information according to specific production intent, such as inducing users, based on electronic and technological methods, such as web programming, etc., that can be deemed as falling under the former Information and Communications Network Act. ② In light of the meaning of “information and communications network”, the term “handling information” in the information and communications network refers to the act of collecting, processing, storing, searching, sending, or receiving information using telecommunications equipment and computers to arrange the provision of information, and ③ If a web hosting intends to build a web site, it constitutes an act of prohibiting the provision of information under Article 7 of the National Security Act, including the act of prohibiting the provision of information under Article 4 of the former Information and Communications Network Act, it constitutes an act of prohibiting the provision of information under Article 7 of the National Security Act.

B. Next, considering the specific website as “information with a content that commits an act prohibited under the National Security Act” as stipulated in Article 44-7(1)8 of the former Information and Communications Network Act, it is considered as “information with a content that commits an act prohibited under the National Security Act,” and examining the requirements for ordering the suspension of web hosting

(1) The freedom of expression guaranteed by Article 21(1) of the Constitution includes the expression and dissemination of intent on the Internet. The fundamental right also can be restricted by the Act for the sake of national security, the maintenance of order, or the public welfare pursuant to Article 37(2) of the Constitution. However, even if the suspension of web hosting on a specific website may also be included in the “Refusal to handle the pertinent information” under the interpretation of Article 44-7(3) of the former Information and Communications Network Act, such suspension may result in the closure of the relevant website on the Internet. As such, unlike ordering the deletion of individual information or the suspension of use, it is likely to infringe on the freedom of expression by restricting the distribution of legitimate information existing on the relevant website, as well as the freedom of expression by other users using the relevant website.

In addition, considering the function of the freedom of expression in a democratic society, the legislation that limits the freedom of expression should be clearly defined and should not be excessively restricted beyond the necessary scope for accomplishing the purpose should also be applied to the interpretation and application of a law. Therefore, when several interpretations are possible within the framework of a certain law because the concept of a law is different or comprehensive, it should be interpreted in accordance with the Constitution for the formation of a unified legal order that covers the Constitution as the highest law, and the interpretation that may result in unconstitutional consequences should be examined in a constitutional and positive aspect while excluding the interpretation that may result in unconstitutionality (see Supreme Court Decision 2004Do7488, Jan. 27, 2005, etc.).

(2) Based on such legal principles as to the restriction of freedom of expression, the web site itself, which is a collection of individual information, shall be deemed to be subject to the determination of rejection, etc. pursuant to Article 44-7(3) of the former Information and Communications Network Act, and in principle, the scope of individual information existing on the web site is “information falling under subparagraphs 7 through 9 of Article 44-7 of the same Act.” In light of the fact that the whole of the individual information existing on the web site is prohibited from distributing under Article 1(1)8 of the same Act, but even if part of the individual information existing on the web site is applicable thereto, it shall be deemed that the entire web site may be deemed to be in violation of Article 44-7(1)8 of the former Information and Communications Network Act, and where it is inevitable to suspend hosting the web site, it shall be deemed that the suspension of hosting the web site is exceptionally ordered.

C. Furthermore, we examine whether Article 44-7(3) of the former Information and Communications Network Act goes against the principle of clarity and whether the above interpretation theory goes against the excessive prohibition principle.

(1) As seen earlier, even if the former Information and Communications Network Act only provides for “Refusal, suspension, and restriction of the handling of information” and does not have a definition provision, the meaning of the Act can be reasonably determined by ordinary interpretation methods as seen earlier. Therefore, the foregoing provision cannot be deemed as contrary to the principle of clarity.

(2) Article 44-7(3) of the former Information and Communications Network Act provides for the creation of an environment in which information and communications networks can be used in a sound manner, and its legislative purpose is justified, and it is appropriate to provide the basis for an order to refuse to handle information prohibited from circulation as a means to realize such an order. Furthermore, there is an institutional device to protect the rights and interests of information and communications service providers or users, such as providing opportunities to submit opinions up to the disposition, and an additional requirement, such as the request of the head of the relevant central administrative agency, in addition to the failure to comply with the request of the Korea Communications Standards Commission, is not immediately ordered the above order, and a judicial review is guaranteed after litigation against the order to refuse, suspend, or restrict the handling of information. In addition, the minimum requirements for infringement of rights are also satisfied. It also includes 201Hun-Ba (see, e.g., Supreme Court Decision 2009Hun-Ba20, supra., Supreme Court Decision 2010Hun-Ga47, supra.

D. Although part of the reasoning of the judgment below is not appropriate, it can be understood that even if the court below interpreted that the refusal to handle information under Article 44-7(3) of the former Information and Communications Network Act includes “use (defluence of a web site)”, it is unconstitutional to mean that suspension of web hosting is allowed with the contents of refusal to handle. Accordingly, the court below's conclusion is just, and contrary to what is alleged in the ground of appeal, there is no error of law by misapprehending the legal principles on the principle of excessive prohibition or clarity in the

2. Regarding ground of appeal No. 4

A. According to the reasoning of the judgment below, the court below determined that the Korean Federation of Korean Universities and Students Association (hereinafter “Korea Federation”) received an account and server space from the plaintiff and provided its members with information, etc. on the North Korean regime through the bulletin board, etc., the defendant rejected 70 times prior to the conclusion of the disposition in this case, but did not comply with the order to delete 70 pro-enemy materials on five occasions, and the Korean National Police Agency continuously posted similar information, and then requested the defendant to take corrective measures against the plaintiff after deliberation by the Korea Communications Standards Commission, and the defendant did not comply with the request, but the defendant issued the disposition in this case against the plaintiff, and the majority of individual information posted on the site in this case constitutes the means or object of prohibited acts under the National Security Act, or constitutes the act itself, and then, the disposition in this case cannot be deemed to have violated the principle of proportionality.

B. In addition to the facts acknowledged by the court below, the following circumstances revealed from the records of this case (i.e., ① the operator of the site of this case and the information posts clearly revealed the identity of the operator of the site of this case, but in light of the background leading up to the disposition of this case and the contents of the site of this case, the operator of the site of this case can be viewed as a group of Han-domination. ② Han-domination was determined as an organization of Han-domination. ② The purpose of opening the site of this case was to post information corresponding to Article 44-7 (1) 8 of the former Information and Communications Network Act. ③ The actual part of the information of this case can be evaluated as information corresponding to Article 44-7 (1) 8 of the former Information and Communications Network Act. ④ The person who posted information of this case to the site of this case can be seen as having been actually the same as the operator or subordinate organization, and the information of this case can be seen as falling under Article 48-7 (1) 4 of the former Information and Communications Network Act.

In addition, even if the Defendant’s repeated order for deletion of information is not complied with, it is deemed that the order for deletion of individual information alone cannot achieve the public interest intended to achieve the former Information and Communications Network Act. Therefore, it cannot be deemed that there exists any imbalance between the public interest intended to achieve the disposition and the limited freedom of expression, etc.

Therefore, the court below's decision that the disposition of this case does not violate the principle of proportionality is just, and there is no error in the misapprehension of legal principles as to the principle of proportionality.

3. Regarding ground of appeal No. 3

The lower court affirmed the purpose of profit-making and determined that the Plaintiff constituted the provider of information and communications services, based on the premise that “a person who provides or arranges the provision of information for profit-making purposes by using telecommunications services by a telecommunications business operator for profit-making purposes” under Article 2 subparag. 3 of the former Information and Communications Network Act stipulating the definition of “provider of information and communications services” refers to a person who provides or arranges the provision of information,” under the premise that “for profit-making purposes” refers to the purpose of obtaining wide economic benefits, the Plaintiff’s regular membership fees are collected every month for the purpose of creating the website operated by the Plaintiff, and the Plaintiff opened and opened an account for the use of the website to the members who paid

In light of the relevant legal principles, the judgment of the court below is just, and there is no error in the misapprehension of the legal principles as to the "for-profit purpose" of the provider of information and communications services under the Information and

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jo Hee-de (Presiding Justice)