[bestbits] [Statement] Google must implement the duty to protect personal data under South Korean law

[Byoung-il Oh]

(sorry for cross posting)


* For more information: please contact antiropy at gmail.com

* related articles : Press Release: 6 Korean human rights activists file a
lawsuit against Google HQ and Google Korea
<http://act.jinbo.net/drupal/node/8134>

 *[Statement] Google must implement the duty to protect personal data under
South Korean law*

- Four human rights and civil groups partly win in a law suit against
Google demanding disclosure of information

- Google should disclose history of users’ personal data provided to a
third party



1.     On 16 Oct. 2015 the 22nd Collegiate Court on civil cases in Seoul
Central District Court made a ruling partly in favor of human rights
activists and civil society who filed against Google Inc. and Google Korea
demanding disclosure of information (whether it provided their data to a
third party).

This ruling has significance home and abroad in terms of digital rights as
the court ruled that a global company must abide by the South Korean law
which stipulate duty to protect users’ personal data even though it’s a
global company.



2.     Suspicions were raised in July 2013 that Google had comprehensively
provided users’ data living in a number of countries to NSA during its
cooperation with NSA for collecting information. On 23 July 2014, six staff
and activists working for Citizens’ Coalition for Economic Justice, Amnesty
International South Korea, Korean Progressive Network Jinbonet and
Citizens’ Action Network filed a law suit against Google Inc. and Google
Korea demanding to disclose information whether it provided their data to a
third party including US intelligence agencies and the history of the data
it had given to a third party.



3.     Under the law 『ACT ON PROMOTION OF INFORMATION AND COMMUNICATIONS
NETWORK UTILIZATION AND INFORMATION PROTECTION, ETC.』, users are legally
guaranteed to request disclosure of their information whether a service
provider keep users data and the history of how the data has been used.
However, the representative of Google has argued that Google Korea doesn’t
have servers in South Korea and the South Korean law is not applicable to
the headquarters of Google Inc. in the US.



4.     On 16 0ctober 2015 the court ordered Google Inc. to provide 4 g-mail
users((@gmail.com)) with personal information under the act, including
personal data and the history of data which were provided to a third party.
The court states, at the ruling, that Google provides services in Korean
with separate domain name for Korean users, and operates business obtaining
orders for advertisement from Korean companies and individuals, so Google
Terms of service which excludes jurisdiction of South Korean court is
invalid in accordance with article 27 of ACT ON PRIVATE INTERNATIONAL
LAW.[1] In addition, the court states that it’s against the mandatory
provisions of the country for Google to deprive users of their rights
granted by domestic law to demand disclosure of information including
whether their data were provided to a third party, and ruled that Google
has a duty to disclose information including personal data at the request
of user



5.     However, the court granted exceptions of information disclosure in
case that Google has a duty of not disclosing information by the laws
including 18 U.S.C § 2709(c)(1) and 18 U.S Code § 1861(d). In addition, the
court said users with company e-mail address are not covered by the ruling.
The court dismissed the plaintiffs’ claim for compensation for damage and
all claims for Google Korea.



6.     Recently, a Court of Justice of the European Union (CJEU) ruling
came into the spotlight as it ruled the Safe Harbor agreement between the
European Commission and U.S. authorities did not offer necessary legal
guarantees and nullified the safe harbor scheme.

The court put the brakes on the sharing information between global
companies in the US and intelligence agencies. South Korean Google users
deserve the rights related to personal data under the Korean law.



7.     We are going to appeal to a higher court in terms of what dismissed
in the ruling. We again call on Google Inc., which has operated in South
Korea, to implement its duty to protect personal data and to respect Google
users’ right to personal data including right of access to their own
personal data.



16 Oct. 2015



*Citizens’ Coalition for Economic Justice, Amnesty International South
Korea, Korean Progressive Network Jinbonet and Citizens’ Action Network*






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[1] Article 27 (Consumer Contract)

(1) In case a contract, which a consumer concludes for a purpose besides
his occupational or business activities, falls under any of the following
subparagraphs, the protection given by the mandatory provisions of the
country, where the habitual residence of the consumer is located, shall not
be deprived even if the parties choose the applicable law:

1. In case, prior to the conclusion of the contract, the opposite party of
the consumer conducted solicitation of transactions and other occupational
or business activities by an advertisement in that country or conducted
solicitation of transactions and other occupational or business activities
by an advertisement into that country from the areas outside that country
and the consumer took all the steps necessary for the conclusion of the
contract in that country;



(4) In case of the contract under the provision of paragraph (1), the
consumer may an file a lawsuit against the opposite party of the consumer
even in the country where the habitual residence of the consumer is located.



(6) The parties of the contract under the provision of paragraph (1) may
agree on the international jurisdiction in writing: Provided, That such
agreement shall be effective only in any of the following subparagraphs:

1. In case a dispute already occurred; or

2. In case filing a lawsuit with other courts in addition to the competent
court under this Article is permitted to the consumer.

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