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news site has public responsibility for managing information, etc. freely posted by users on the bulletin boards, etc. in order to secure the fairness of elections. Therefore, it cannot be deemed that the 5 restrictions on the freedom of the press granted to internet news sites, accompanied by the restrictions on the freedom of anonymous expression of the users of the bulletin boards, etc., violate the principle of the least restriction. The Provisions at Issue limit their application to the minimum extent necessary to prevent the risk of undermining a fair election in consideration of the influence and responsibility of internet news sites; it is hard to conceive of other means that can achieve the legislative intent to the same extent as the Provisions at Issue; and notably, the provision on imposing a fine cannot be deemed to impose excessive restrictions on the freedom of the press for internet news sites. For the foregoing reasons, the Provisions at Issue do not violate the principle of the least restriction and the balance of interests. Since the Provisions at Issue do not contravene the rule against excessive restriction, we find that they do not infringe upon the freedom of anonymous expression and the right to self-determination over personal information of users of the bulletin boards, etc. of internet news sites and the freedom of the press of internet news sites. * This translation is provisional and subject to revision.

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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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