On April 29, 2016, the Korea Communications Commission ("KCC") issued the Guidelines on the Right to Request Access Restrictions on Personal Internet Postings (the "Guidelines"). With the Guidelines, individuals can request web operators or service providers to restrict the public from accessing his/her postings that he/she has personally uploaded in the past ("personal internet postings"), and to ultimately remove these online information that the individuals cannot delete by themselves.
For several years, there has been an active discussion within Korea to introduce a right to allow individuals to request personal data to be restricted from online access, which is known as the "right to be forgotten."
Individuals had means of relief to erase certain personal information published by third parties, under several statutes, such as the Copyright Act, the Act on Press Arbitration and Remedies For Damage Caused by Press Reports, the Act on Promotion of Information and Communications Network Utilization and Information Protection, and others. However, in case where individuals have lost the right to control his/her postings due to, for example, loss of membership account information or in the even that the website has been suspended, the individuals were unable to remove their personal postings.
By adopting the Guidelines provided by the KCC, individuals can protect their privacy from potential injuries or damages in their employment, promotion or marriages as a result of their past postings.
An applicant requesting restriction of access is required to submit the following three items to prove that the posting at issue was in fact posted by him/herself: (i) the posting at issue and the URL links to the posting; (ii) proof that the posting at issue was posted by the applicant; and (iii) grounds for the request.
Unless (i) the posting at issue is prohibited from being blocked or deleted pursuant to other statutes or orders and, as a result, the web operator is obligated to preserve the posting at issue; and/or (ii) when the posting at issue has significant relevance to public interests, web operators and service providers can process individuals' requests for access restriction.
Third parties, however, may challenge the web operator's decisions to grant access restriction by claiming that they are the ones who uploaded the posting at issue, not the applicant. When third parties make these challenges, they must submit the reasons for the challenge as well as the proof of their claim.
Please note that the Guidelines, which will take effect as early as June 2016, are non-binding and the effectiveness of the Guidelines largely depends on the voluntary cooperation by the web operators and service providers. However, given that consumer privacy may be a form of non-price competition for businesses that profit from having a large user base such as internet companies, as more and more consumers begin to exercise their right to request access restrictions on personal internet postings pursuant to the Guidelines, internet service providers will have no choice but to comply with the Guidelines to maintain their user base.
In addition, given that the Guidelines apply to Korean companies as well as foreign internet companies providing Korean-language services to any individuals regardless of the location of their physical servers, non-Korean companies that offer services to individuals should familiarize themselves with the Guidelines and closely monitor any changes that will be made to the Guidelines as the Guidelines continue to be amended based on the public's opinion.
If you have any inquiries or questions in relation to the Guidelines, we will be at your disposal to accommodate your needs.
ICT Legal Update 2016.05
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.