Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (ICNA, Information and Communications Network Act), last amended by Act No. 11322, February17, 2012 (English Version)

(1) Article 44-2(1) and (2) provide that, when a person requests certain information to be deleted as it infringes upon the person’s rights, the service provider “shall” immediately delete, temporarily block up to 30 days (“temporary measure”), or take any other necessary measure on the information.  Always unsure of whether the information is rights-infringing or not, the provision has incentivized the service provider into erring on the side of deleting, often by deleting lawful information.

On top of that, Paragraph (4) states that “if a dispute resolution is anticipated or if the service provider is not sure of the rights-infringing nature of the information”, it “may” take a temporary measure instead of a permanent measure. According to a Constitutional Court in 2012 (2010Hun-ma88), the total effect of these provisions means that the takedown obligation arises not just when the information is infringing another’s rights but whenever a supposed victim requests takedown with certification to that effect.  In other words, when the unlawfulness of the information is in doubt as in Article 44-2(4), the service provider “may” take a less drastic, temporary measure but that is the minimum it must do whenever there is such request. Yet, the Constitutional Court found such provisions constitutional, citing the amplified danger of speech going online.  Moreover, there is no procedure to request restoration of deleted or blocked information available to the poster, unlike the U.S.’ DMCA or the current Copyright Act of the country.

(2) Article 44-5 is another safe harbor that exempts from identity theft liability those public institutions implementing real-name identification system for their online bulletin boards.

(3) According to Article 44-6, a person may file a claim with the defamation dispute conciliation division under Article 44-10 to require service providers to furnish information about the alleged offender if the conciliation division decides so after deliberation.

(4) Article 44-7 sets out the power of Korea Communications Commission (KCC) to order service providers to reject, suspend, or restrict processing of illegal information ranging from obscene or defamatory information to information aiming at, aiding, or abetting any crime. KCC should provide the intermediaries and users opportunities to submit opinions unless there are certain reasons not to do so. Article 73 subparagraph 5 states that a service provider failed to perform KCC’s order shall be punished by imprisonment not more than two years or a fine not exceeding 20 million won. Article 44-7 together with the penal provision gives KCC, an administrative agency, absolute power to censor almost any information on the Internet as the scope of illegal information is very broad.