1. Facts
○ Netflix, an American company that provides digital video streaming services, and its Korean affiliates have filed a lawsuit against SK Broadband Co., Ltd., a key telecommunication service provider that provides Internet access services.
○ The plaintiffs requested the confirmation of non-debt in relation to the Internet traffic caused by the plaintiff company’s provision of services to users who access the Internet through the Internet connection service provided by the defendant sk broadband company.
○ We sought confirmation of the absence of the defendant’s ‘debt to negotiate or pay consideration for transmission through domestic and international networks, operation, expansion or use of such networks(국내망 및 국제망을 통한 전송, 이러한 망의 운영, 증설 또는 이용에 대하여 협상하거나 대가를 지급할 채무)’.
○ Plaintiff sought to confirm the absence of ‘debt to negotiate or pay consideration for transmission through domestic and international networks, operation, expansion or use of such networks’ to the defendant company.
2. Court judgment
○ Plaintiff Netflix should be considered to be accessing the Internet network through the defendant or at least being provided with a paid service from the defendant to connect to the defendant’s Internet network and maintain the connection status.
○ Since this is not directly related to the discussion of net neutrality(망중립성) or the discussion of ‘transmission payoff(전송의 유상성)’, which is the ‘principle that prohibits telecommunication companies from unreasonably discriminating against legitimate traffic flowing through their networks’ It is reasonable to assume that the defendant bears the obligation to pay the price for receiving a paid service such as connection to the Internet network of the defendant and maintenance of the connection state.
○ Such a view is in line with the equity between the plaintiffs and the defendants.
○ On the other hand, ‘transmission through the defendant’s domestic and international networks, operation, expansion or use of such networks’, for which plaintiffs seek confirmation of non-existence in the context of the claim, should be taken into account in determining the scope of the consideration for the above-mentioned paid services. Sprinkle that corresponds to the element.
○ Neither the plaintiffs nor the defendants are arguing for the purpose of seeking a judgment on whether to pay consideration for each of the above factors, so we do not make a separate judgment on whether each of the above factors is worthwhile.
○ The actions of merchants are presumed to be for business purposes, and the actions performed by merchants for business are considered commercial acts (Article 47 of the Commercial Act). The lucrativeness implied by relevance corresponds to the essential attribute of commercial activity.
○ The defendant is a corporation, a corporation as a key telecommunications business operator(전기통신사업법에 따라 등록된 기간통신사업자) registered in accordance with the Telecommunications Business Act. The defendant’s actions within the scope of his/her own business by investing cost and effort constitute commercial activities for the purpose of profit. Accordingly, the other party to whom the defendant has provided the service without the intention to provide it free of charge is obligated to pay the price to the defendant, unless there are special circumstances that can avoid paying the consideration.
Seoul Central District Court 2020가합533643
3. Rules
Telecommunications Business Act
Article 2 (Definitions)
The terms used in this Act are defined as follows:
11. The term “facilities-based telecommunications service” means any telecommunications service for transmitting or receiving voice, data, images, etc. without any change in the form or details thereof and for leasing telecommunications line equipment to enable transmission or reception of voice, data, images, etc., such as telephone services or Internet services: Provided, That this shall not include telecommunications services (referring to detailed independent services among telecommunications services provided under subparagraph 6; hereinafter the same shall apply) determined and publicly notified by the Minister of Science and ICT;
Commercial Act
Article 47 (Appendage Commercial Activities)
(1) Activities conducted by a merchant for the purpose of his/her business shall be deemed commercial activities.
(2) The activities conducted by a merchant shall be presumed effected for the purpose of his/her business.