유럽의 온라인서비스제공자 책임의 법리 구성

A Comparative Study on the Liability of Online Service Provider in Europe

A study on the ISP liability in Europe can provide for an interesting and valuable example, how this recently discussed problem is solved in the various legal systems. Although the Directive 2000/31/EC provides a common basis for this liability in Europe, the regulations contained in the Directive are limited to the liability privilege and give no structural guidance. But the interpretation of CJEU that a provider can be exempt from any liability for unlawful data that it has stored on condition that it has confined itself to a merely technical and automatic processing of data and should have not played an active role allowing it to have knowledge or control of the data stored, played a role in deciding the standard of reasonable duty of care which is demanded for providers. The German Supreme Court bases its concept of the liability of providers on the interferers liability (Störerhaftung). But this liability cannot be applied to infringement of non-absolute rights (copyright, trade mark right and personality right), so it develops another indirect liability system due to the violation of reasonable duty of care (Verkehrspflichtverletzung). So two structurally different concepts coexist in the case of absolute rights on the one hand and in the case of illegality deriving from illegal action on the other hand. In spite of this dualistic system both the concepts presuppose the reasonable duty of care which has almost the same meaning in both cases. In England the High Court overcame the jurisdiction to grant an injunction by leading back to the High Court s power to issue injunctions conferred by the Senior Courts Act 1981 and to the judgement of CJEU. The French Courts established a broad concept of liability which is enabled by Articles 1382 and 1383 of the Code Civil. Because this liability is labelled as a general tort liability, the remedies for this action are not limited to injunctive relief. The question of whether or not to adopt a dualistic or unitary concept of liability is not easy. From this author’s view the courts of each countries developed its own model on the consideration of its already established legal concept. More meaningful question will be the concrete standard of duty of care. Of course the difference between dualistic and unitary concept might lead to the difference of whether to grant compensation for damages, thus it worths to argue still.