불법정보에 대한 방송통신위원회의 취급거부‧정지‧제한명령제도의 헌법적 및 합헌적 해석‧적용의 방향 - 한총련 웹사이트 폐쇄사건을 중심으로 -

초록

The Supreme Court gave its judgment on the South Korean Federation of University Students Councils (or ‘Hanchongryun’) web­site shutdown case on the 26th of March, 2015. The Korea Communications Commission ordered ‘Jinbo­net’, a civil organization that had been providing the web­hosting service for Hanchongryun’s web­site, to shut the latter down; the Commission claimed that since the web­site’s content constituted unlawful information that breached the National Security Act, it was entitled to issue an order of rejection according to Article 44-­7 of the ｢Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.｣(hereinafter ‘Information and Communications Act’). The main issue in the Hanchongryun web­site shutdown case was whether or not the Commission’s action was illegal. Jinbo­net filed an administrative lawsuit that sought to cancel the Commission’s order of rejection. The first and second instance court both found that the Korea Communications Commission’s web­site shutdown order was legally justified, leading Jinbo­net to appeal to the Supreme Court: the Supreme Court’s judgment however adhered for the most part to the lower instance courts’ decision. Article 44­-7 of the current Information and Communications Act, titled ‘Prohibition on Circulation of Unlawful Information’, lists the types of ‘unlawful information’ whose circulation is prohibited in clause 1(sub­clauses 1 to 9), defines the Commission’s right to issue ‘discretionary orders of rejection, suspension or restriction’ in clause 2 and ‘obligatory orders of rejection, suspension or restriction’ in clause 3, while laying out the process of preliminary opinion presentation in clause 4. The Korea Communications Commission’s rejection, suspension and restriction of unlawful information, coupled with the Korea Communications Standards Commission’s review and correction request policy, constitutes a pillar of an administrative agency­led system of Internet content regulation: whether such a system of Internet content regulation is constitutionally justifiable and adequate in the current Internet era has been a topic of much debate. The Commission’s policy of rejecting, suspending and restricting of unlawful information has a significant potential of being constitutionally problematic, especially since it is a form of administrative review. Its interpretation and application should therefore be aimed at keeping the limitation of freedom of expression at a minimum. The Commission’s rejection, suspension and restriction policy should be implemented cautiously; the range of the screened information, as well as the restrictive methods utilized, should be interpreted as narrowly as possible, and the constitutional correctness and lawfulness of the Commission’s rejection, suspension and restriction orders should be strictly evaluated in each individual case. If we follow this line of logic, interpreting the Korea Communications Commission’s rejection, suspension and restriction order to have the power to shut down a web­site breaches the principle of proportionality. The Court’s stance concerning the Hanchongryun web­site shutdown case is therefore problematic in that it overlooked the constitutional issues of administrative review as well as the need for its narrow interpretation and application.

키워드