Letter to the Members of the Parliament of the Republic of Korea and Korean Communication Commission –

No More “Mandatory” Notice-and-Takedown!
No More Obligations to “Keep Out” Unlawful Content!
Respect the Manila Principles!

We, concerned citizens and civil society organizations of the world, call on you to amend Korean law on intermediary liability to conform to international norms.

Korean law (Copyright Act Article 103*, Information and Communications Network Act Article 44-2**) requires intermediaries to take down all content for which anyone sends a takedown notice, regardless whether the content violates any right or law. This is imposed not as a condition of obtaining exemption from liability but as a positive obligation. This ‘mandatory’ notice-and-takedown system is unprecedented and contravenes the core principle of freedom of speech that it can be abridged only to protect another’s rights, national security, public safety, etc. As a result, the intermediaries are forced to take down thousands of contents daily which they believe to be perfectly lawful.

Also, Korean law requires some intermediaries to implement ‘technical measures’ to filter out copyright infringing material (Copyright Act Article 104***) and obscenity (Telecommunications Business Act Article 22-3 (1)****), and requires all intermediaries to implement technical measures to filter out child pornography (Children and Juvenile Sex Protection Act Article 17*****). These requirements of ‘technical measures’ are practically equivalent to a general monitoring obligation, banned in the EU e-Commerce Directive, for the very reason that the only available technical measure is to manually review and assess each material on their services. These monitoring obligations are enforced by a penalty of criminal punishment for 1 to 3 years or criminal or administrative fine.

We believe that both sets of laws are in violation of international norms on intermediary liability, as most recently and succinctly set out in the Manila Principles (www.manilaprinciples.org) that many NGOs and individuals have subscribed to. Manila Principles Article 1.d.  states that intermediaries should not be required to monitor content proactively; Article 2.a. states that “Intermediaries must not be required to restrict content unless an order has been issued by an independent and impartial judicial authority that has determined that the material at issue is unlawful.”; and Article 1.c. states that “Intermediaries must not be held liable for failing to restrict lawful content.” Almost identical recommendations were made in a study titled Good Practice for Online Intermediaries commissioned by the Network of Centers, a network of 50 research centers around the world including Harvard University’s Berkman Center, Humboldt Institute, etc. The Manila Principles has been also cited by David Kaye, the UN Special Rapporteur for Freedom of Opinion and Expression in his latest report as “provid[ing] a sound set of guidelines for States and international and regional mechanisms to protect expression online”.

Open Net Korea has for long proposed to amend the Copyright Act, the Information Communication Network Act, and other laws to bring them into compliance with international norms. See http://old.opennetkorea.org/en/wp/1350; and http://old.opennetkorea.org/en/wp/1297 for latest activities. Notice and takedown for copyright and for defamation should be made no longer mandatory, leaving a leeway for the intermediaries to maintain lawful contents, and the existing ‘technical measure’ requirements should be amended or interpreted so that they do not constitute a general monitoring obligation. For the future of Internet and the freedom of speech, we fully support these amendments and urge you to do the same.

※ Please sign this letter by August 31, 2015.  You may also modify as you wish, print out, sign, and send the scanned image of this letter to ma****@op*****.kr, which we will personally deliver to the relevant officials.

 

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* Copyright Act Article 103 (Suspension of Reproduction or Transmission)

(1) Any person who asserts that his/her copyright and other rights protected under this Act are infringed (hereafter referred to in this Article as “claimant to a right”) due to the reproduction or transmission of works, etc. through the utilization of services by an online service provider (excluding cases under Article 102 (1) 1; hereafter the same shall apply in this Article), may demand the online service provider, by vindicating the said facts, to suspend the reproduction or transmission of the works, etc.
(2) Where an online service provider is required to suspend the reproduction or transmission under paragraph (1), he/she shall immediately suspend the reproduction or transmission of such works, etc. and notify a claimant to the right of such fact: Provided, That an online service provider referred to in Article 102 (1) 3 or 4 shall notify the reproducer or transmitter of such works, etc., as well as the claimant to the right, of such fact.
(3) Where the reproducer or transmitter upon receipt of notification under paragraph (2), vindicates that his/her reproduction or transmission is made with legitimate authority, and demands a resumption of such reproduction or transmission, the online service provider shall promptly notify the claimant to the right of the fact of demanding a resumption and the scheduled date of resumption, and shall have the reproduction or transmission resumed on the said scheduled date: Provided, That this shall not apply where the claimant to a right notifies an online service provider before the scheduled date of resumption, of the fact that he/she has filed a lawsuit against the act of infringement of reproducer or transmitter.
(4) The online service provider shall give public notice by designating the person who is to receive a demand for suspension of the reproduction or transmission, and for its resumption under paragraphs (1) and (3) (hereafter referred to in this Article as “recipient”), so as to have the persons who utilize his/her own installations or services know the said person readily.
(5) Where the online service provider has given public notice pursuant to paragraph (4), and has suspended or resumed the reproduction or transmission of relevant works, etc. under paragraphs (2) and (3), the responsibility of the online service provider for the infringement on third parties’ copyright and other rights protected under this Act, and the responsibility of the online service provider for the losses incurred to the reproducer or transmitter, shall be exempted: Provided, That this shall not apply to the responsibilities arisen from the time when the online service provider has known the facts that the copyright and other rights protected under this Act were infringed due to the reproduction or transmission of works, etc. by third parties to the time of demanding the suspension under paragraph (1).
(6) Any person who demands, without legitimate authority , the suspension or resumption of the reproduction or transmission of relevant works, etc. under paragraphs (1) and (3), shall make a compensation for any losses incurred thereby.
(7) Matters necessary for the vindication, suspension, notification, resumption of reproduction or transmission, designation of a recipient, and public notice, etc. under paragraphs (1) through (4) shall be prescribed by Presidential Decree. In such cases, the Minister of Culture, Sports and Tourism shall make a prior consultation with the heads of related central administrative agencies.

 

** Information and Communications Network Act Article 44-2 (Request for Deletion of Information)

(1) Where information provided through an information and communications network purposely to make it public intrudes on other persons’ privacy, defames other persons, or violates other persons’ right otherwise, the victim of such violation may request the provider of information and communications services who handled the information to delete the information or publish a rebuttable statement (hereinafter referred to as “deletion or rebuttal”), presenting it materials supporting the alleged violation.
(2) A provider of information and communications services shall, upon receiving a request for deletion or rebuttal of the information under paragraph (1), delete the information, take a temporary measure, or any other necessary measure, and shall notify the applicant and the publisher of the information immediately. In such cases, the provider of information and communications services shall make it known to users that it has taken necessary measures by posting a public notice on the relevant open message board or in any other way.
(3) A provider of information and communications services shall, if there is any unwholesome medium for juvenile published in violation of the labeling method under Article 42 in the information and communications network operated and managed by it or if a content advertising any unwholesome medium for juvenile is displayed in such network without any measures to restrict access by juvenile under Article 42-2, delete such content without delay.
(4) A provider of information and communications services may, if it is difficult to judge whether information violates any right or it is anticipated that there will probably be a dispute between interested parties, take a measure to block access to the information temporarily (hereinafter referred to as “temporary measures”), irrespective of a request for deletion of the information under paragraph (1). In such cases, the period of time for the temporary measure shall not exceed 30 days.
(5) Every provider of information and communications services shall clearly state the details, procedure, and other matters concerning necessary measures in its standardized agreement in advance.
(6) A provider of information and communications services may, if it takes necessary measures under paragraph (2) for the informations circulated through the information and communications network operated and managed by it, have its liability for damages caused by such informations mitigated or discharged.

 

*** Copyright Act Article 104 (Responsibility, etc. of Online Service Providers of Special Type)

(1) The online service provider who aims principally at forwarding works, etc. by using computers between other persons (hereinafter referred to as “online service provider of special type”) shall take necessary measures, such as technical measures, etc. that cut off illegal forwarding of the relevant work, etc. where there is a request from the holder of rights. In such cases, matters regarding the request of holder of rights and necessary measures shall be prescribed by Presidential Decree.
(2) The Minister of Culture, Sports and Tourism may lay down and announce the extent of online service provider of special type under paragraph (1).

 

**** Telecommunications Business Act Article 22-3 (Technical Measures for Special Value-added Telecommunications Business Operators)

(1) Any person who registered for a special type of value-added telecommunications business (“special value-added telecommunications business operator”) under Article 2 subparagraph 13 item a [editor’s note: same as the special type of OSPs under the Copyright Act Art. 104] must implement technical measures prescribed by Presidential Decree to prevent circulation of illegal information under Article 44-7 (1) 1 of the Information and Communications Network Act [editor’s note: obscenity].

 

***** Children and Juvenile Sex Protection Act Article 17 (Obligations of Online Service Providers)

(1) Any online service provider who fails to take measures prescribed by Presidential Decree to detect child or juvenile pornography in the information and communications network managed by himself/herself or who fails to immediately delete the detected pornography and take technical measures to prevent or block transmission thereof, shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 20 million won: Provided, That this shall not apply where the online service provider has not been negligent in paying due attention to detect the child or juvenile pornography in the information and communications network or where substantial technical difficulty exists even though he/she has tried to prevent or block the transmission of the detected child or juvenile pornography.
(2) Online service providers of special type under Article 104 of the Copyright Act shall indicate words of warning, as prescribed by Presidential Decree, on the relevant screen or transmission program, clearly stating that a person who produces, distributes or possesses any child or juvenile pornography may be subject to punishment where their users search, upload or download the works stored at their computers, etc.