Google Spain and its Effects on Korean Online Intermediary Regulation

Korean intermediary liability regime

Network Act 44-2 states that if certain information on the internet violates the rights of a person, the communications network provider must delete that information. There is asymmetry in incentives for the companies and the companies err on the side of deleting than keeping it. This asymmetry is aggravated in Korea due to related statutes. Network Act 44-2 (4) states “upon demand, intermediaries may temporarily blind non-prejudicial material (temporary measures)” and Communications Commission Establishment Act allows the intermediaries, upon the government’s demand, to take down material if necessary for maintenance of “sound communication ethics.”

Result: Rampant private censorship

Total of rights-infringing takedowns by Korean businesses is about 100,000. Total of Google’s takedown worldwide was about 2,000 and the total of Korean government takedowns were about 10,000. Deleted materials are often legal, but political: A posting critical of the Seoul City mayor’s ban on assemblies in the Seoul Square; a posting critical of legislator’s drinking habits and introducing his social media account; clips of a television news report on Seoul Police Chief’s brother who allegedly runs an illegal brothel-hotel; a posting critical of politicians’ pejorative remarks on the recent deaths of squatters and police officers in a redevelopment dispute; a posting calling for immunity from criminal prosecutions and civil damage suits on labor strikes; a posting by an opposition party legislator questioning a conservative media executive’s involvement in a sex exploitation scandal related to an actress and her suicide.

Solution: Let’s relearn why Internet is good

Individual’s ability to post and download materials without approval always accompanies the possibility of illegal contents on the Internet. We could fix the asymmetry in incentives by adding a statute stating that the companies must restore the deleted material if noticed legal content.

This double liability, however, can be too burdensome for the intermediaries. The alternative solution could be double immunity (e.g., DMCA): no liability for taking down legal content and no liability for restoring illegal contents. In the end, court decides whether the material is legal or not. Liability-imposing regime always incentivizes intermediaries into taking down lawful contents. With double immunity granted, the intermediaries only act as mediators not adjudicators.

What does Google/Spain do to Korea?

Gooogle/Spain is the first decision recognizing the independent liability of the intermediary. The court decided that the intermediaries must take out non-prejudicial and otherwise lawful content from search engines. This pressures the intermediaries into even worse private censorship. Again, Google should not be made adjudicator. Google needs double immunity, which equally incentivizes for taking down and restoring the materials. Full notice-and-takedown based on double immunity regime is neutral to legality of contents. Thus, thorny issues of right to be forgotten are avoided at intermediaries. The court will be dealing with them.

Data ownership?

Internet is useful because intermediaries mass-process data with one another. Holding intermediaries liable for mass-processing itself will kill the Internet. Alan Westin, the inventor of data ownership, thought it up as a prophylactic response to “data surveillance.” Data ownership requires limited interpretation. Publicly available data or materials of journalistic activities should be exceptions of data ownership. All of us are “born into” the society. One’s complete ownership of the personal data is impossible.