Supreme Court en banc Decision 2008Da53812, April 16, 2009 (English Version)

(English Version)

(1) This is a much criticized Supreme Court decision on intermediary liability for defamatory content. There were two contradictory Supreme Court decisions (2001Da36801 and 2002Da72194, see below) prior to this en banc decision on the same issue.

(2) The Supreme Court held web portal sites Naver, Daum, SK Communications, and Yahoo Korea liable for the defamation of the plaintiff whom the user postings there accused of deserting a girlfriend upon the second pregnancy after he talked her into aborting the first where the girlfriend then committed a suicide. The court upheld judgments of 10 million won, 7 million won, 8 million won, and 5 million won, respectively, against these services.

(3) Specifically, the court held that, barring special circumstances, (a) the intermediary shall be liable for illegal contents to the same extent as a news agency and therefore shall be liable when (1) the illegality of the content is clear; (2) the provider was aware of the content; and (3) it is technically and financially possible to control the contents. (b) On top of the duty to take down such contents immediately, the intermediary has a duty to block similar postings later on. (c) The Court will find the provider’s requisite awareness under (2) above:

(4) The end result is that the intermediary will be absolutely liable for a posting later found to be “clearly” defamatory if “it was apparently clear that the provider could have been aware of that content” even if the victim did not notify the intermediary of the existence of the content. The Court decision may have been inspired by Article 44 of ICNA which was in force at the time the postings were up, but the fact is that, even without Article 44/44-2 in full motion, the Court was already ready to impose a publisher-like liability on the intermediary and a monitoring obligation.