Case Summary and Outcome

The Constitutional Court of Korea held that Article 44-5 of the Act on Promotion of Information and Communications Network Utilization and Information Protection (Verification of Users Identity for Open Message Boards) was  unconstitutional as an excessive restraint on speech and an infringement of citizens’ rights to freedom of expression, self-determination and private information and freedom of the press. The Court reasoned that while the Act’s purpose to restrain illegal acts was legitimate, there were less restrictive ways that this could be achieved and that because of this, and the large amount of users targeted through the legislation, the Act was an excessive restraint. This case sets a precedent in expanding expression in South Korea and is a huge step forward for free speech activists

Facts

South Korea adopted the “internet real-name system” Act in 2004, requiring citizens to submit their Resident Registration Numbers (similar to a Social Security Number in the U.S.) before posting on any election-related websites. The purpose of this Act was supposedly to protect election websites and the content therein. Three years later, the Act was expanded in Article 44-5 Section 1 Item 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, and enforced through Article 29 and Article 30 Section 1 of the Enforcement Ordinance of the Act. The expansion provided that this identity verification would apply to any website with more than 100,000 visitors per day. The Act required users of message boards to undergo an identity verification process before being allowed to post, or even to view content on the online message board. Users were not able to upload information anonymously. This was cited as a response to a rise in defamation cases and cyber bullying. In 2010, the People’s Solidarity for Participatory Democracy Public Interest Law Center and the Korean Progressive Network challenged this Act in Constitutional Court, arguing that it was a violation of freedom of speech and expression.

Decision Overview

The judges unanimously declared the Act unconstitutional.

The issue for the Court was whether the provisions were unconstitutional as an unlawful restraint on freedom of expression. The Court first looked to the legislative purpose of the act, which was identified as restraining illegal acts such as defamation and identifying the people committing these acts. The Court found this to be a legitimate purpose, and the Act a proper way to achieve this purpose. However, the Court found that the Act did not meet the requirement of being the least restrictive way to achieve its intended purpose. The Court emphasized the importance of citizens’ rights to freedom of expression. The Court found other ways of remedying the risk of defamation including deleting the information, blocking the user, or tracking the user through their IP address. The Court also noted that users subject to this Act included not only the people posting on the website, but anyone else who viewed the information on the website. There was also a risk that information obtained through these identity verification checks would remain on file indefinitely.

Therefore, the Court found the Act unconstitutional, five years after it was enacted.