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Summary of Dissenting Opinions of Three Justices The Provisions at Issue restrict anonymous expression by taking measures such as verifying the real name of a user who posts information only when such information contains ‘his/her support for or opposition to candidates or political parties’ and is posted ‘on the bulletin board, chat room, etc. of an internet news site’ ‘during an election campaign period.’ ‘During an election campaign period’ political parties and candidates compete with each other for the concrete goal of winning an election and voters competitively express their 4 political opinions regarding the election. Such intense competition may lead to negative propaganda or attempts to manipulate public opinion. As an ‘internet news site’ is part of the mass media wielding influence in forming public opinion, it has greater public responsibility in ensuring a fair election during an election campaign period. The broad definition of an internet news site has to do with the low entry barrier in its establishment and operation. If an internet news site serves the role of the press, it has responsibility to maintain objectivity and impartiality commensurate with its status. ‘A person’s support for or opposition to candidates or political parties’ is his/her political expression which is directly related to the election results and fiercely competes with each other during election campaign periods. Under such distinctive features and circumstances, where false or distorted information expressing a person’s support for or opposition to political parties and candidates is irresponsibly posted on the bulletin board, etc. of a renowned internet news site, it can be compounded with the negative consequences that may occur in the internet environment including a rapid and widespread dissemination and reproduction of the posting, the acquisition of biased information and the reinforcement of bias, making it difficult to facilitate autonomous correction of such information through discussion, etc. and thereby undermining a fair election. Even where a person whose real name has been verified posts information, etc. on the bulletin board, chat room, etc. of an internet news site, the posting does not disclose his/her personal information, but only shows the sign of a verified real name. Therefore the person’s ‘anonymity’ is guaranteed. Data on real-name verification results is separately managed to provide the information requested by the National Election Commission responsible for ensuring a fair election process, which creates a chilling effect only to this extent. It can be considered as a preventive measure which allows a person who wishes to post information anonymously to be aware of the risk of possible unlawful acts. Therefore, the restrictions on the freedom of anonymous expression imposed by the Provisions at Issue are indispensable in terms of their scope and extent, and it is difficult to come up with alternatives that can ease the restrictions on the right to self-determination over personal information which are inseparable as the means to guarantee such freedom. In the case of an internet news site characterized by openness and interactivity, the formation and dissemination of public opinion based on information and expression of opinion provided by users on the bulletin board, etc. of a website form an integral part of its press activities. Accordingly, an internet

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2018Hun-Ma456

Judgment

Question Presented: Whether the Public Official Election Act’s required verification of internet users when they post election-related content online during a campaign violates freedom of expression, freedom of anonymous speech, freedom of the press and the right to informational self-determination.

Alleged Acts: The petitioners challenged legislation requiring the verification of internet users when they post election-related content to bulletin boards, news sites, and the like during election campaigns, claiming this requirement violates constitutional protections of free expression, free speech, anonymity, and informational self-determination.

Procedural history: Three petitions were consolidated into one case before the Constitutional Court. In the first case, Case No. 2018Hun-Ka16, an administrative fine was imposed on the petitioner for not verifying users’ real names on his internet news website. The petitioner appealed the decision to an appellate court and asked for a review of the relevant provisions of the Public Official Election Act. The appellate court submitted a request to the Constitutional Court for a constitutional review of the challenged provisions. The fine was imposed while the case was pending. Petitioners in Cases No.2018Hun-Ma456 (a voter) and No.2020Hun-Ma406 (and internet news site operator) also filed constitutional petitions before the Constitutional Court, arguing that the same provisions of the Public Official Election Act infringe upon their fundamental rights.

Summary: Article 82-6 Sections 1, 3, 4, 6, and 7 of the former Public Election Act and Article 261 Section 3 (Items 3-4) and Section 6 (Item 3) of the current Public Official Election Act require internet news sites to verify a user’s real name if the user posts election-related content during election campaign periods. The laws also require internet news sites to delete any posts by users whom they cannot verify. The petitioner in Case No. 2018Hun-Ka16 operates an internet news site and was fined for not correctly verifying internet users’ real names in accordance with methods promulgated by the Minister of the Interior and Safety. The petitioner appealed that decision and asked for a constitutional review of the relevant laws. Additionally, the complainants in Case No.2018Hun-Ma456 and Case No.2020Hun-Ma406 argued that the abovementioned provisions of the Public Official Election Act impact their fundamental rights to freedom of expression, freedom of anonymous speech, freedom of the press, and the right to informational self-determination. The Constitutional Court held that the challenged provisions violated constitutional protections of anonymous free speech and the right to informational self-determination. The Court appreciated that the legislation was written to avoid the potential damages to fair elections by personal attacks and negative propaganda. However, the Court found that other factors weighed more heavily in favor of the complainants. First, the Court held that people would be more reluctant to share their opinions and participate in “the ‘free market of thoughts’” if these laws were upheld, which would result in self-censorship and bring greater harm to democratic participation. Second, the Court found that there are other ways of achieving a real-name verification system without restricting freedom of expression (anonymity) or informational self-determination (e.g., through provisions that proscribe unlawful dissemination of information during election campaigns). Finally, the Court held that current technology allows the government to enforce prohibitions on defamation and slander against candidates, thereby eliminating the need for the named provisions of the Public Official Election Act.

Conclusion: The Court finds that the challenged provisions of the Public Official Election Act are unconstitutional.

Legal Issue(s)

Criminal Procedure
Social Media

Applicable Law(s): Korean Constitution; Public Official Elections Act; Act on Promotion of Information and Communication Network Utilization and Information Protection

Region: Asia-Pacific

Country: South Korea

Language of Decision

English

Court: Constitutional Court

Election Type: Parliamentary

Date of decision: Jan 28, 2021

Geolocation

Latitude: 37.57061435907212

Longitude: 126.98755817115281

: Geolocation

Primary Documents

2018Hun-Ma456.pdf
English
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2018Hun-Ma456(Kor).pdf
Korean
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Election Judgments - IFES

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2018Hun-Ma456

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