개인정보보호를 위한 잊혀질 권리와 표현의 자유의 조화방안

On the Harmony Manner of the Right to be Forgotten and the Freedom of Expression

In the modern age people communicate in real time with others from around the globe through social networking services. The digitized information is easily searchable, can be endlessly copied, spread swiftly and widely, and stored indefinitely at low cost. Therefore information uploaded to the internet is propagated quickly and widely and stored long-term, meaning it may be known to the world even after much time has elapsed by someone who is skilled at searching. The debate on adopting the right to be forgotten concerns providing a legal basis for those who wish to delete their personal information left online. The information subject’s right to be forgotten, however, comes into conflict with third parties’ freedom of expression. The right to be forgotten and the freedom of expression are both relative rights, with neither one unilaterally ascendant in cases of conflict but rather to be harmonized and balanced against each other based on the specific facts of each case. The European Court of Justice and Japan’s Tokyo High Court also reviewed the conflicts between information subjects’ right to be forgotten and third parties’ freedom of expression on a case-by- case basis. The considerations include the degree to which the disclosed personal information implicates privacy concerns, the public interest in the information, the social good to be gained from disclosure, and the harm to the information subject due to disclosure. This article, taking into account such standards, distinguished between the right to be forgotten concerning information that the information subject uploaded to the internet of their own volition on the one hand, and information about the information subject that a third party uploaded to the internet by a third party on the other, which implicate freedom of expression to different degrees. Different legal provisions should apply to these two categories of cases in vindicating the right to be forgotten. In the case of information that the information subject uploaded to the internet, the information subject’s right to be forgotten should supersede others’ freedom of expression. On this subject, however, there is only a guideline from the Korea Communications Commission and no legal provision. It is therefore recommended that a new provision be added as Article 44-2(3) of the Information and Communication Networks Act. When a third party uploads an information subject’s information to the internet, there is a conflict between the right to be forgotten of the information subject who wishes this information to be deleted and the freedom of information of the third party who wishes to disclose the information. In order to balance and harmonize these rights, the article suggests that Article 44-2(1) and (2) of the Information and Communication Networks Act be utilized. In order to effectively secure performance by information network service providers, Article 76(2)5 should be added to the same Act as “A person who failed to take deletion or provisional measures in violation of Article 44-2(2) or (3),” subject to an administrative fine of up to 20,000,000 won. According to these provisions, an information subject of information uploaded to the internet by a third party, if the information constitutes a privacy violation or libel, may request an information and communication service provider to delete the information or delete it from search results under Article 44-2(1) of the Information and Communication Networks Act so that others may no longer search and discover personal information about the information subject.