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A Study on Improvement of Regulation System for Limitation of Liability of Online Service Providers - Focusing on General Monitoring Obligation

La， Kang 1

1국민대학교

Accredited

ABSTRACT

The distribution of contents and information under the digital network environment is carried out through various online services provided by an online service providers as a mediator. There has been much debate as to why online service provider who is not a direct infringer should bear responsibility for the illegal activities that occur in the service. Legislation on legal liability to online service providers has emerged as a legislative form of liability for online service providers who exempt them from liability under certain conditions. The DMCA of the United States and the EU e-commerce directive are such legislations. In Korea, the limitation of liability of online service providers was introduced in copyright law in 2003. After several revisions, In 2011, the Copyright law has taken a very similar set of rules to the DMCA that subdivides the types of online service providers and sets out the requirements for exemptions by type. On the other hand, in addition to the limitation of liability of online service provider in the copyright law, individual legislations that imposed criminal liability and administrative sanctions against illegal information such as Game Industry Promotion Act, Child Juvenile Protection Act, There is a tendency to expand liability along with online service provider liability restrictions. In principle, foreign legislations prohibit liability for information that is not recognized when liability is imposed on online service providers, and prohibit the imposition of general monitoring obligation, such as filtering techniques that may be pre-screened. However, in Korea, in addition to the liability limitations of the online service providers, individual legislations are being followed, which can be seen as a broadening of liability and a general monitoring obligation. This phenomenon needs to be improved because it fades the intention of introducing online service provider liability restrictions and is becoming a confusing regulatory framework for online service providers. The Internet in the digital age is a space for communication and a space for free information distribution. The imposition of general monitoring obligation may create harm caused by pre-screening. In addition, it does not compatible with the characteristics of the Internet, such as free distribution and communication of information. For these reasons, imposing a general monitoring obligation should be prohibited. In this study, I analyze the regulation system and problems of Korea law regarding the limitation of liability of online service providers and the legislative cases and precedents of foreign countries, and suggests ways to improve the current liability limitation system of online service providers in Korea focusing on general monitoring obligation.

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