Infringement of Another Person's Secrets on an Information and Communications Network, Aiding Copyright Infringement by Linking, and Divulgence of Occupational Secrets: Standards from Three Judgments on Information and Communications and Intellectual Property

Question

This brief uses three judgments to set out three questions: when the infringement of another person's secrets processed, stored or transmitted through an information and communications network is established; the standard for establishing aiding liability for commercial and continuous linking to posts that infringe copyright; and whether a medical professional's divulgence of occupational secrets extends to the secrets of a deceased person.

The first issue is the question addressed in judgment 2017Do15226: "Does secretly viewing and copying conversations stored in a co-worker's in-house messenger archive constitute infringement of secrets under the Act on Promotion of Information and Communications Network Utilization and Information Protection?" The second issue is the question addressed in judgment 2017Do19025: "Do 450 commercial links posted on a replay (video-on-demand) site constitute aiding the infringement of the right of public transmission?"

The third issue is the question addressed in judgment 2018Do2844: "Where a patient died because the diagnosis of peritonitis was delayed and the deceased's secrets were then posted, are negligence and the divulgence of secrets established?" All three judgments ask how the boundaries of the statutory text and the substantive factors for decision are to be determined on the record.

Material to check

First (2017Do15226): this judgment concerns the scope of another person's secrets protected under the Act on Promotion of Information and Communications Network Utilization and Information Protection, the meaning of infringement and divulgence, and the method of assessing a justifiable act and self-defence. Usage records and stored files showing the processing and transmission history, the storage path on the personal computer and the time of storage are gathered to determine whether the information is a secret and whether it was stored within the information and communications system. Access records and materials on how the conduct took place are gathered to determine whether the information was acquired by secret use, whether the five requirements for a justifiable act are met, and whether the requirement of reasonableness for self-defence is satisfied.

Second (2017Do19025): this judgment concerns whether a link to infringing posts and similar material constitutes public transmission, and whether commercial and continuous linking constitutes aiding the infringement of the right of public transmission. Operating records and posted files showing the principal offender's posting and upload history and whether the material was kept on or deleted from the server are gathered to determine whether the principal offender continued to make the material available for use or withdrew the post. Records of the site's operation and of link posting are gathered to determine whether the link posting was commercial and continuous and how far it facilitated access.

Third (2018Do2844): this judgment concerns the standard for assessing medical negligence, the method of interpreting penal provisions, and whether the "other person" in the prohibition on divulging secrets under the former Medical Service Act includes a deceased person. On the record, medical records containing symptom observation notes, examination and test history and transfer arrangements are reviewed to determine whether there was "a failure to foresee or avoid the result even though its occurrence could have been foreseen and avoided". Next, the medical standards of the time, the medical environment and the reasonableness of the measures taken are examined against "the ordinary duty of care that an average physician engaged in the same work or field would normally be expected to possess", and the need to protect secrets after death and compliance with restrictions on providing records are verified from the medical records and materials on how the posting took place.

Possible readings

In case 2017Do15226, the issues were the scope of "another person's secrets processed, stored or transmitted through an information and communications network" under Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, the meaning of "another person's secrets", and the meaning of "infringement" and "divulgence" of those secrets.

In case 2017Do19025, the issues were whether linking to posts that infringe the right of public transmission constitutes infringement of that right, whether the principal offender's criminal conduct can be the object of aiding for as long as the principal offender has not withdrawn the infringing post, and whether providing links commercially and continuously constitutes aiding.

In case 2018Do2844, the issues were the requirements and standards for finding a physician negligent in a medical malpractice case, the method of interpreting penal provisions, and whether "another person" in Article 19 of the former Medical Service Act also includes a person who has already died.

What the decisions held

Supreme Court judgment 2017Do15226 rendered on 27 December 2018 held: "Further, 'another person's secrets' under Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection means facts that are not generally known and that it is in the interest of the person concerned not to disclose to others." By this judgment the Supreme Court held that another person's secrets processed, stored or transmitted through an information and communications network may include material stored on a personal computer. It held that where processing and transmission are closely linked with storage and keeping, so that the material can be viewed and searched only through the related program, the material is stored within the information and communications system. It defined another person's secrets as facts that are not generally known and that it is in the interest of the person concerned not to disclose. It explained that infringement is the act of acquiring a secret by improper means or methods, and that divulgence means only the act by which a person who so acquired the secret, or a person who knows that the secret was so acquired, informs another person who does not yet know it; improper methods also include a person without legitimate access authority secretly using the devices or functions of an information and communications network by taking advantage of the user's having logged on to the network by entering an identification code. It held that a justifiable act must satisfy all five requirements, from legitimacy of motive or purpose through to subsidiarity, and that self-defence must be socially reasonable in light of all the circumstances.

Supreme Court en banc judgment 2017Do19025 rendered on 9 September 2021 held: "Even an act of linking to a post that infringes the right of public transmission, or to a webpage on which such a post is located (collectively, 'infringing posts, etc.'), does not constitute infringement of the right of transmission, because it does not amount to 'transmission (public transmission)', which is an element of the offence of infringing the right of transmission (right of public transmission)." By this judgment the Supreme Court held that a link is no more than a web location and path, and therefore amounts only to an instruction or conduit for requesting transmission, so that it does not constitute transmission. It held that where the principal offender leaves the infringing post in place, the making available for use is repeated and the offence does not come to an end, so that it can be the object of aiding. It stated that posting links commercially and continuously, with full knowledge of the infringement, so as to make the material easily accessible assists the principal offender's commission of the offence and aggravates the infringement of the protected legal interest. It made clear that the intent to aid and the intent of the principal offender may be established by dolus eventualis (conditional intent), but that the prosecutor must strictly prove that the awareness reached a level at which the unlawfulness could be clearly recognised. It left open that conduct may not amount to aiding where it does not reach commercial and continuous provision, where causation is denied, or where it is socially reasonable.

Supreme Court judgment 2018Do2844 rendered on 11 May 2018 held: "In a medical malpractice case, in order to find a physician negligent, it must be possible to find that the physician failed to foresee or avoid the result even though its occurrence could have been foreseen and avoided." By this judgment the Supreme Court requires foreseeability and avoidability for a finding of negligence and takes as the standard the ordinary duty of care of an average physician. Diagnostic negligence is determined by whether the physician, within the range of the diagnostic standard, examined the patient carefully, foresaw the risk and took the best measures. In this case, the Court found negligence, in that the physician treated the condition as ordinary pain, permitted discharge and delayed transfer to another hospital even though the possibility of delayed perforation was foreseeable, and found causation between that negligence and the death. Penal provisions, too, permit systematic and logical interpretation within the possible meaning of the text. "Another person" in Article 19 of the former Medical Service Act includes a deceased person, on the grounds of the relationship of trust, the purpose of the Medical Service Act, restrictions on access to records and the like.

Practical checklist

First, does secretly viewing and copying conversations stored in a co-worker's in-house messenger archive constitute infringement of secrets under the Act on Promotion of Information and Communications Network Utilization and Information Protection? Compare the storage path, the program usage history and the access records with the processing and transmission history, and check whether infringement is established on the basis that the information is a secret and was acquired by secret use.

Second, do 450 commercial links posted on a replay (video-on-demand) site constitute aiding the infringement of the right of public transmission? Compare the principal offender's posting and upload history and the records of server storage and deletion with the link-posting history, and check whether aiding is established by commercial and continuous linking while the making available for use continued.

Third, where a patient died because the diagnosis of peritonitis was delayed and the deceased's secrets were then posted, are negligence and the divulgence of secrets established? Using the medical records and materials on how the posting took place, check on the record whether there was "a failure to foresee or avoid the result even though its occurrence could have been foreseen and avoided", whether the standard of "the ordinary duty of care that an average physician engaged in the same work or field would normally be expected to possess" was met, and whether the information is a secret that remains protected after death.

Glossary

Scope of secrets protected by Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection (2017Do15226): the Supreme Court held that another person's secrets processed, stored or transmitted through an information and communications network may include material stored on a personal computer. It held that where processing and transmission are closely linked with storage and keeping, so that the material can be viewed and searched only through the related program, the material is stored within the information and communications system. It defined another person's secrets as facts that are not generally known and that it is in the interest of the person concerned not to disclose. It explained that infringement is the act of acquiring a secret by improper means or methods, and that divulgence means only the act by which a person who so acquired the secret, or a person who knows that the secret was so acquired, informs another person who does not yet know it; secret use taking advantage of a logged-on state is also an improper method. It held that a justifiable act must satisfy all five requirements, from legitimacy of motive or purpose through to subsidiarity, and that self-defence must be socially reasonable in light of all the circumstances. The factors identified include the link between processing and transmission and storage and keeping, whether the material can be viewed and searched using the related program, and the legitimacy of motive and purpose.

Whether linking to infringing posts constitutes infringement of the right of transmission, and the standard for establishing aiding liability (2017Do19025): the Supreme Court held that a link is no more than a web location and path, and therefore amounts only to an instruction or conduit for requesting transmission, so that it does not constitute transmission. It held that where the principal offender leaves the infringing post in place, the making available for use is repeated and the offence does not come to an end, so that it can be the object of aiding. It stated that posting links commercially and continuously, with full knowledge of the infringement, so as to make the material easily accessible assists the principal offender's commission of the offence and aggravates the infringement of the protected legal interest. It made clear that the intent to aid and the intent of the principal offender may be established by dolus eventualis (conditional intent), but that the prosecutor must strictly prove that the awareness reached a level at which the unlawfulness could be clearly recognised. It left open that conduct may not amount to aiding where it does not reach commercial and continuous provision, where causation is denied, or where it is socially reasonable. The factors identified include whether the post remained up, whether the linking was commercial and continuous, and how far it facilitated access.

Interpretive framework for the standard of medical negligence and whether secrets of a deceased person are included (2018Do2844): the Supreme Court requires foreseeability and avoidability for a finding of negligence and takes as the standard the ordinary duty of care of an average physician. Diagnostic negligence is determined by whether the physician, within the range of the diagnostic standard, examined the patient carefully, foresaw the risk and took the best measures. In this case, the Court found negligence, in that the physician treated the condition as ordinary pain, permitted discharge and delayed transfer to another hospital even though the possibility of delayed perforation was foreseeable, and found causation between that negligence and the death. Penal provisions, too, permit systematic and logical interpretation within the possible meaning of the text. "Another person" in Article 19 of the former Medical Service Act includes a deceased person, on the grounds of the relationship of trust, the purpose of the Medical Service Act, restrictions on access to records and the like. The factors identified include foreseeability and avoidability, the ordinary duty of care and the medical standards, and the text, structure and purpose of the provision.

Sources and limitations

This brief was prepared solely on the basis of the texts of Article 49 and Article 71(1), subparagraph 11 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Article 2, subparagraphs 7 and 10, Article 18 and Article 136(1) of the Copyright Act, Article 32(1) of the Criminal Act, and Articles 19 and 88 of the former Medical Service Act, as published on the Korea Law Information Center, and of Supreme Court judgment 2017Do15226 rendered on 27 December 2018, Supreme Court judgment 2017Do19025 rendered on 9 September 2021 and Supreme Court judgment 2018Do2844 rendered on 11 May 2018.

This is academic research material setting out general legal principles and standards for reviewing records; it is not legal advice on any individual case or an opinion for submission to a court.

Points left open

2017Do15226: Where should the line be drawn at which secretly viewing material by taking advantage of a logged-in state becomes infringement of another person's secrets?

2017Do19025: Where lies the line between everyday links that are not commercial and continuous and links that amount to aiding?

2018Do2844: Where is the line drawn up to which the protection of medical secrets continues after death?

When to reconsider

2017Do15226: To be revisited when storage within the information and communications system and the use of an improper method are disputed in relation to new methods of storing records.

2017Do19025: To be revisited where the principal offender has withdrawn the post so that the offence has ended, or where the links do not amount to commercial and continuous posting.

2018Do2844: To be revisited on whether the best measures required within the range of the diagnostic standard were taken.

Statutes referred to

• 정보통신망 이용촉진 및 정보보호 등에 관한 법률 제49조, 제71조 제1항 제11호
• 저작권법 제2조 제7호·제10호, 제18조, 제136조 제1항
• 형법 제32조 제1항, 제317조 제1항

Decisions referred to

• 대법원 2018. 12. 27. 선고 2017도15226 판결 · Decision ledger
• 대법원 2021. 9. 9. 선고 2017도19025 전원합의체 판결 · Decision ledger
• 대법원 2018. 5. 11. 선고 2018도2844 판결 · Decision ledger

Verification status

The provisions cited (Article 49 and Article 71(1), subparagraph 11 of the Act on Promotion of Information and Communications Network Utilization and Information Protection; Article 2, subparagraphs 7 and 10, Article 18 and Article 136(1) of the Copyright Act; Article 32(1) of the Criminal Act; Articles 19 and 88 of the former Medical Service Act) and the judgments covered (Supreme Court judgment 2017Do15226 rendered on 27 December 2018; Supreme Court judgment 2017Do19025 rendered on 9 September 2021; Supreme Court judgment 2018Do2844 rendered on 11 May 2018) were checked, as at 15 October 2026, against the current legislation on the Korea Law Information Center and the original texts of the Supreme Court judgments. This brief cites only the three judgments listed among the judgments covered.