Newsletter | October 2016, Issue 3
	TECHNOLOGY, MEDIA & TELECOMMUNICATIONS
	Korean Government Issues New Guidelines on the Right to Request Revocation of Access to One’s Internet Postings
	While active discussions are taking place globally on how to guarantee the “right to be forgotten,” guidelines for implementing the relevant rights have been enacted in Korea.
	Specifically, on April 29, 2016, after obtaining extensive opinions from a wide social spectrum, the Korea Communications Commission (“KCC”) established guidelines on the “Right to Request Revocation of Access to Self-Posts” (“Access Revocation Right”) (the “Guidelines”).
	Prior to the implementation of the Guidelines, the South Korean Government had confirmed its policy to not provide an exception for the Access Revocation Right. Now, the Access Revocation Right allows for comprehensive deletion of all postings, including “product reviews written in exchange for payment,” and “post[ings] that can be deemed as a single copyrighted work[,] such as Jisik-iN from Naver”, which had been subject to continued criticism.
	Overall Implications & Recommendations:
	These Guidelines are designed to ensure the users’ rights to request that others be restricted from accessing his/her own Internet postings.4
	Although the Guidelines are not legally binding5, as the foundation for future legislation, they likely reflect the service providers’ operational difficulties, and results from trial and error.
	As such, online service providers who manage and operate online forums (“Forum Administrators”), and Internet portal operators who provide Internet search services (“Search Service Providers”) (collectively, “Business Operators”) should pay particular attention to the relevant developments.
	In particular, please note that foreign businesses which provide their services in Korea in the Korean language are also subject to the Guidelines.
	Major Items Covered:
	1. User’s request to revoke access to self-postings The Access Revocation Right will apply when a user cannot on its own delete an Internet posting s/he made due to, for example, loss of the user’s membership information either from account deactivation or non-use of his/her account for one year. - That is, when a user intends to request others to be restricted from accessing his/her own Internet postings, the user should first confirm whether he/she can delete his own Internet postings. If the user cannot delete his/her own posting, the user can make an initial request to the Forum Administrator to revoke access to his/her posting. - However, if due to “special reasons,” the Forum Administrator cannot revoke access (e.g., the Forum Administrator discontinues administration of the website), the user may instead make a second request to Search Service Providers. - These “special reasons” include cases where: (i) the Forum Administrator discontinues its business; or (ii) the Search Service Provider finds that the user cannot revoke access to his or her posting, because the forum is no longer actively administered. 2. Determination of access revocation request Access revocation by Forum Administrators If after reviewing the materials submitted by the requesting party, the Forum Administrator determines the relevant posting is, in fact, a posting by that requesting party, the Forum Administrator must immediately revoke access to the relevant posting by “hiding (i.e., blinding) them” in lieu of deletion. This “hiding” requirement was introduced to prevent postings from being deleted due to false requests. Access revocation by Search Service Providers If the Forum Administrator takes measures to revoke access due to an access revocation request, the Search Service Provider must also take measures to revoke access by deleting relevant cache memories from its search service. This should be done without making an independent determination as to whether to take such measures. However, if a requesting party directly requests the Search Service Provider to take measures to revoke access due to a “special reason,” the Search Service Provider must evaluate the request. - Upon determination that the relevant posting was created by the requesting party, the Search Service Provider must take measures to revoke access by removing the relevant posting from being listed on search results. Standards for rejecting Access Revocation Right Users have the Access Revocation Right only if the user himself/ herself cannot delete the relevant posting. - If the requesting party can delete the posting himself/ herself, or otherwise presents insufficient evidence that the posting subject to the Access Revocation Right is in fact a self-posting, Business Operators may reject the requesting party’s request to revoke access. Also, even if the user proves that he/she wrote the posting, and cannot delete it on his/her own, the Business Operator may still refuse the user’s request to revoke access if either: (i) the Business Operator has a legal duty to preserve the posting (e.g., preservation order from a court); or (ii) the relevant posting has “significant relevance to the public interest” (i.e., postings published by public figures regarding their official duties, or postings published by public officials (or press organizations and other such entities) relating to the duties of the official that are of public interest) 3. Notification of measures taken and third party appeals Notification of measures taken When a Business Operator revokes access to a posting, because it has been proven from the requesting party’s submissions that the posting is by the requesting party, the Business Operator must notify the requesting party of: (i) the post for which access is being revoked; (ii) the post’s URL; and (iii) the access revocation date. Moreover, the Business Operator must also publicly announce that access has been revoked pursuant to the request of the requesting party, so that other users are made aware of such revocation. If the Business Operator rejects the access revocation request – either because there was insufficient evidence that the requesting party created the posting, or the posting falls into an exception for access revocation – then the Business Operator must also notify the requesting party the reasons for the rejection. Appeals by third parties A third party who claims that the restricted posting was posted by himself/herself, and not by the original requesting party, such a third party can appeal and request the Business Operator to resume access by providing the reasons for the request, and attaching supporting documents. If the Business Operator finds that there is a legitimate reason to resume access, then the Business Operator must immediately implement measures to resume access, and notify the original requesting party and the third party that access has been resumed. Notification should include: (i) the posting for which access is being resumed; (ii) the access resumption date; and (iii) reasons for the resumption.
	4 “Revocation of access” means ensuring that others are restricted from accessing the user’s own Internet postings without deleting such postings. 5 Rather, these Guidelines are voluntary.
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	Dong Shik Choi dschoi@kimchang.com Hyun-Kyu Lee hyunkyu.lee1@kimchang.com
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