Korea National Assembly

The EU Approach

South Korea

1. Liability exposure for intermediaries

2. Strict privacy rules

E.g. Right to be forgotten

Proves futile: The Telegraph published last week a list of all of its stories that had been “forgotten,” including, for example:

EU right to be forgotten

denied 59% of the time

The U.S. Approach

2. Communications Decency Act

Section 230

1. Copyright

DMCA Title II

Safe harbors for copyright infringement; notice and takedown regime

Immunity from liability for intermediaries for defamation and other civil torts (outside intellectual property)

4. Futility and Friendly Fire on Domestic Innovation

End Result:

3. Identifying posters

Importance of anonymity—promotes whistleblowers, robust debate

U.S. Appeals Court: Court must weigh "the important value of anonymous speech against need for discovery

1. Excessive Liability:

2007 Supreme Court decision:

“Dolus eventualis”: awareness of the likelihood of the outcome of an action.

When the Constitutional Court struck down one real names law in 2012, it observed that “it is easy for users to evade our law...” The Court noted that “there exist communication networks where our law does not apply, thereby causing domestic users to flee to foreign websites.”

2. Temporary measures: undermine speech

Information must be removed for 30 days upon certification.

Futile,

undermines Free expression,

and Friendly fire on local innovation

3. Enforcement of privacy policies, rather than heightened Internet privacy liabilities

In sum:

Where the U.S. approached the Internet with hope, the rest of the world approached it with fear.

Steve Jobs launches the iPod in 2001.

Unlike Sony’s digital walkman, the iPod allows MP3s

End Result:

Free speech as industrial policy

Implications for cloud computing and the Internet of Things

“Let a thousand web sites bloom.”

Clinton-Gore administration’s

approach to the Internet (1997)

“the vast democratic forums of the Internet”

U.S. Supreme Court (1997)

Consider a notice-and-takedown regime here:

If Amazon were required to take down a review that an author considered defamatory—say for 30 days—how does Amazon know whether the review is defamatory or not?

If a reader of that review can’t tell, how can Amazon? An automatic notice and takedown procedure would result in Amazon squelching speech whenever someone complained of negative statements about others

Consider opportunities for defamation offered by Amazon reviews:

Will Amazon be liable for that defamation?

• Jerome Schneider sued Amazon for what he believed to be defamatory reviews of his book.

• Schneider alleged that Amazon failed to remove the statements.

• A Washington state appeals court ruled that Amazon was protected against the claims by the Communications Decency Act’s Section 230.

"Rakuten leads $100m Pinterest investment"

FIN. TIMES, May 17, 2012

Zuckerberg’s Law:

Every year, people will share twice as much information as the year before.

End Result:

Supports both free speech and economic development

Free expression and robust debate require the right to criticize others,

not just to sing their praises.

U.S.-based start-ups attract venture capital because their business model is legal there.

The Electronic Silk Road and Intermediary Liability

Anupam Chander

Fundamental Questions

Will South Korea seek to build the next

Silicon Valley or the next Brussels?

In the Information Age, does South Korea want to suppress speech or embrace it?

California International Law Center

University of California, Davis