인터넷에서의 음란기준과 음란물 통제메커니즘에 관한 연구 - 대법원 2008.3.13. 선고 2006도3558 판결, 정보통신망이용촉진및정보보호등에관한법률위반(음란물유포등)의 평석을 중심으로 -

Abstract

In the year of 2005, VOD Providers who made VODs for adults and provided them to portal site, and CEOs of portal sites which provided those VODs to Internet adults users were prosecuted in violation of §65(1)(ⅱ) of 「Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.」. The clause provides "A person who has distributed, sold, rented, or openly displayed obscene codes, letters, sounds, visuals, or films through information and communications network shall be punished by imprisonment with prison labor for not more than 1 year or by a fine not exceeding 10 million won". From the year of 2006, the judgments of the courts begin to be issued. Finally, the Supreme Court held that VOD Providers who made VODs for adults and provided them to portal site are not guilty. But This judgment of the Supreme Court is meaningful in the following points. Firstly, the Supreme Court did not make a mistake in differentiating standards of obscenity medium by medium in contrast with the lower courts. 'Obscenity' is not the concept that the standard can be changed medium by medium. Secondly, the Supreme Court did not make a error in confusing 'regulation system of illegal content' and 'regulation system of harmful content' in contrast with the lower courts. Confusing 'regulation system of illegal content' and 'regulation system of harmful content' provokes unconstitutional consequence because of infringment of adult's right to know. Thirdly, but the Supreme Court also made a mistake by not respecting Korea Media Rating Board's rating of concerned VODs. The media or content rating of public authority like Korea Media Rating Board is a process of reflecting contemporary common ideas on sexual speech or obscenity.