2018 Violation of the Personal Information Protection Act

A

J. J. P. P. P.C. (A.)

Attorney Park Jae-hwan

April 10, 2018

The sentence of sentence shall be suspended for the defendant.

Criminal facts

A personal information manager shall not use the personal information of a subject of information for any purpose other than its original purpose or provide it to a third party.

Since October 2016, the Defendant, while working as the author of B’C from around 2010, managed the personal information of radio listeners, D, who was a listener of the given program, continuously posted a statement of the Defendant on the above program bulletin board, national newspaper, etc. from October 2016, intended to send the content certification demanding the suspension of the above act to the above D.

On February 2017, the Defendant issued D’s address and contact information to G attorney-at-law of law firm F who represented the Defendant in the complaint case against D without the consent of D who is an owner of information or any ground prescribed by the Personal Information Protection Act, and used personal information for any purpose other than its original purpose.

Summary of Evidence

1. Partial statement of the defendant;

1. Statement of D police statement;

1. A complaint;

1. Investigation report (receiving a criminal complaint to the Korean citizen newspaper), investigation report (related to specific personal information processing procedures for sending a gift), investigation report ( listening to a statement by a complainant), investigation report (a statement by a complainant), and investigation report (a statement sent by a complainant to the E-Mail);

1. Content certification submitted by the complainant and e-mail output submitted by the complainant;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 71 Subparag. 2 and Article 18(1) of the Personal Information Protection Act (Selection of Fine)

1. The type to be suspended;

Fine 300,000 Won

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act (100,000 won per day)

1. Suspension of sentence;

Article 59(1) of the Criminal Act ("the case where the circumstances prior to the opening of the sentence" among the requirements for postponement of sentence" refer to the case where the defendant would not be subject to the punishment even if he did not sentence, considering comprehensively the conditions of sentencing as prescribed by Article 51 of the Criminal Act, including the degree of reflectivity, and the situation where the defendant would not be subject to the punishment. This different interpretation is limited to the case where the "where the circumstances prior to the opening of the sentence" are clearly divided into depth of the crime, or it is not interpreted that the suspension of sentence may not be always made if the defendant denies the crime without confessioning the criminal facts (see Supreme Court en banc Decision 2001Do6138, Feb. 20, 2003). However, although the defendant denies the criminal facts, it is decided to suspend the sentence by taking into account the circumstances stated in the reasons for sentencing as follows).

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. As stated in the facts charged, the Defendant provided D’s personal information to an attorney-at-law on behalf of the complainant as stated in the facts charged. However, if the Defendant posted an article of slander against the Defendant on the bulletin board of the radio program that the Defendant participated in the production of the author, the complainant used the complainant’s personal information to send a certificate of content that the complainant may have been requested to suspend such act and that such act may have been sustained, and if such act is continued, it constitutes “where it is necessary to achieve legitimate interests of the personal information controller and it does not clearly take precedence over the right of the subject of information,” and its use does not exceed the reasonable scope, it shall be deemed a justifiable use pursuant to Article 15(1)6 of the Personal Information Protection Act. Thus, the Defendant’s act does not constitute a use other than the purpose under Article 18(1) of the Personal Information Protection Act, and thus, the Defendant cannot be punished pursuant to Article 71 subparag. 2

B. Even if the Defendant’s act constitutes a violation of Article 71 subparag. 2 and Article 18(1) of the Personal Information Protection Act, the Defendant used the Defendant’s personal information to send a proof of the purport of demanding warning and prevention of recurrence to the complainant who committed continuous defamation and interference with business. As such, the Defendant’s act constitutes self-defense or legitimate act, and thus, is dismissed from illegality.

2. Determination

A. First, I examine the argument that it does not constitute a violation of Article 71 Subparag. 2 of the Personal Information Protection Act.

Article 15(1) of the Personal Information Protection Act provides that a personal information manager can collect personal information in a limited manner, and it also provides that a personal information manager may use such personal information within the scope of the purpose of collection even if it is collected as it falls under such a case. Article 71(2) and Article 18(1) provides that a personal information manager shall punish a person who uses such collected personal information beyond the scope of the purpose of collection.

According to evidence duly adopted and examined by this court, the defendant collected personal information with his/her consent in order to deliver goods to the complainants who won the radio premium event that he/she produced. Thus, the defendant collected personal information with the consent of the complainants who are the subject of information pursuant to Article 15(1)1 of the Personal Information Protection Act, and the defendant's legitimate interest pursuant to Article 15(1)6 of the same Act does not acquire personal information of the complainants because it takes precedence over the complainant's right. Therefore, the defendant used the personal information of the complainants who consented to the provision for the receipt of free gifts only for the purpose of collection, i.e., free gifts delivery, etc., the purpose of the collection. Thus, it is reasonable to view that the defendant's act constitutes a use other than the purpose of collection.

Therefore, this part of the defendant's argument is without merit.

B. Next, we examine the argument that illegality is excluded.

1) First, we examine whether the Defendant’s act constitutes self-defense under Article 21 of the Criminal Act.

In order for a certain act to constitute self-defense, there must be considerable reasons for an act to defend the current infringement of one’s own or another’s legal interests. The following circumstances acknowledged by evidence duly adopted and investigated by this court, namely, the time when the accused used the accused’s personal information after posting a notice to slander the accused on the radio program bulletin board of the Defendant’s production. As can be seen, when the accused uses the accused’s personal information, the infringement of the respondent’s personal information was terminated, and even if the notice prepared by the complainant was posted on the Internet bulletin board continuously, the Defendant could escape from the infringement by requesting the deletion of the notice through a certain procedure, but the Defendant chosen the method of sending content certification using the accused’s personal information, it is difficult to deem that the Defendant had present infringement on the Defendant’s legal entity at the time of using the accused’s personal information for any purpose other than the purpose of self-defense, and it is also difficult to deem that there was considerable reason for the Defendant’s act to defend the Defendant’s legal entity.

Therefore, this part of the argument is without merit.

2) Next, we examine whether the Defendant’s act constitutes a justifiable act under Article 20 of the Criminal Act.

“Acts that do not contravene social norms” under Article 20 of the Criminal Act refers to acts permissible in light of the overall spirit of legal order or the social ethics or social norms surrounding the act. Thus, if a certain act satisfies the requirements such as the motive or justification of the act, the reasonableness of the means or method of the act, the balance between the protected interest and the infringed interest, urgency, and supplementary nature that there is no other means or method than the act, it shall be deemed a justifiable act (see, e.g., Supreme Court Decision 2013Do6761, Jan. 1, 2014).

In light of the above legal principles, as seen earlier, the Defendant appears to have been able to delete the Internet posts by undergoing normal procedures, and even if it is necessary to send or file a complaint to the complainant, as long as the notice prepared by the complainant is still posted on the Internet bulletin board without using the complainant’s personal information for the purpose other than the original purpose, the Defendant appears to have no particular difficulty in specifying the complainant’s personal information through investigation by the investigative agency after the complainant was filed the complaint. However, considering these circumstances, it is difficult to deem that the Defendant had no other means or methods to prevent infringement of the legal interests of the Defendant, other than using the complainant’s personal information for the purpose other than the purpose of using the complainant’s personal information.

Therefore, this part of the defendant's assertion is not justified without further consideration as to whether it falls under the different requirements of political party act.

Reasons for sentencing

The defendant is a primary offender with no particular criminal history. The previous case is that the complainant who had a dispute with the defendant due to free gifts from the radio program that was produced before, and the defendant continuously posted a letter that damages the defendant's reputation on the Internet bulletin board of the program that has participated in the new production for about four months, etc. In order to force the complainant to stop such act, the defendant requested the complainant to provide the complainant's personal information to the law firm in order to send a certificate that the complainant would file a complaint if the act is continued, and the motive is to be taken into account. Since such information was provided only to the counsel who is a legal expert, there was no risk of secondary damage. Since such information was provided only to the lawyer, the defendant sent such content certification, and then the defendant was agreed that the complainant would not pay consolation money to the defendant again and did not engage in any similar act. After that, the circumstances of the crime, such as the defendant's age, family relation, means of living environment and various conditions, such as sentencing, etc., the order of punishment should be determined by taking into account the following circumstances.

Judges Cho Jong-soo