Case Summary and Outcome

 The South Korean Constitutional Court held that Article 53 of the Telecommunications Business Act and Article 16 of the Enforcement Decree of the Telecommunications Business Act were unconstitutional for lack of clarity and because they were excessively restrictive.  A university student’s community blog account was suspended and his message deleted following his post stating, “Exchange of Gunfire in the West Sea, Sloppy Kim Dae-Jung!” The Court reasoned that the terms in both articles were such abstract concepts that officials with differing value systems or ethical views would make different judgments about whether a particular expression was harmful to “the public peace and order” or “social morals and good customs” which would have the potential to create a chilling effect for fear of prosecution. Further, it said that this ambiguity would inevitably result in the regulation of communication that should not be regulated, and lead to the violation of the rule against excessive restriction.

Facts

The complainant was a student at Hankook Aviation University, and signed up to Nownuri, a comprehensive computer network service provided by Nowcom, Inc., under the user ID of “I-ui-je-ki (request for correction Trans.)”. On June 15, 1999, he  posted a message entitled “Exchange of Gunfire in the West Sea, Sloppy Kim Dae-Jung!” on the “urgent message board” of the internet community “Chanwoomul.” On June 21, a system manager for Nownuri deleted this message from the board, and suspended the complainant’s use of Nownuri service for one month in accordance with an order from the Minister of Information and Communication.

On August 11, 1999, the complainant filed a constitutional complaint in respect of Article 53 and parts of Article 71(ⅶ) concerning Article 53(3) of the Telecommunications Business Act as well as Article 16 of the Enforcement Decree of Telecommunications Business Act, alleging that the provisions infringed on his freedom of expression as well as the freedom of science and arts, was against due process, and violated the principle against excessive restriction.

Decision Overview

The Constitutional Court found the provisions at issue to be unconstitutional by virtue of the clarity principle and the rule against excessive restriction.

The complainant argued that Article 53 of the Telecommunications Business Act constituted an unreasonable restraint on freedom of expression because it was vague and ambiguous  and violated the rule of clarity for not sufficiently defining the terms used, such as “public peace and order” and “social moral and good customs.” Further, the complainant argued that this provision violated the right against excessive restriction because it allowed for a complete suspension from all internet activity, in addition to removal of the post, solely at the discretion of the Minister of Information and Communication.

The Minister countered that the restriction did not allow government censorship of the internet and sufficiently passed the proportionality test because it pursued a legitimate aim, and did so using appropriate and the least restrictive means and balanced the interests of the state with the interests of individuals. Further, the Minister argued that this provision did not directly infringe on individual rights. The Director of the National Intelligence Service concurred with this analysis. The Juvenile Protection Committee argued that the restriction was necessary to protect the country’s youth on the internet. The Commissioner General of the National Police Agency argued that praising the North Korean regime was illegal in Korea and steps must be taken to uphold that law.

First, the Court found that the Minister’s argument that Article 53 did not directly infringe on constitutional rights to be without merit. It looked at each section of the challenged provision individually, starting with Article 53(1). The Court turned to the principles which govern restrictions on freedom of expression and stressed the importance of the rule of clarity. The Court then applied those principles to the provision at issue. First, did the provision violate of the rule of clarity? Article 53(1) states “a person in use of telecommunications shall not make the communication with contents harming the public peace and order or social morals and good customs” (p.12). The Court found this provision violated the rule of clarity as public peace and social morals are abstract concepts subject to different interpretations by different individuals. The Court noted that this did not mean these concepts would always be void in legislation because that would depend on legislative purpose and their relation to other statutory provisions, but without further context the concepts were not sufficiently clear when imposing restrictions on freedom of expression.

The Court then turned to whether the legislative provision violated the prohibition against excessive restriction. The Court found that it did because the absence of any definition meant that there was no way of knowing what was improper communication, and this had the potential to create a chilling effect for fear of prosecution. “When it is unclear what kind of expression is being prohibited by such legislation, it is very likely that a person would abstain from expressing himself lest he should be punished for making such expression because he is not certain that what he is about to express is not subject to regulation”, the Court said. It found this to be unacceptable in a democratic society, holding “[i]t would distort the free market of ideas and the press if a state could freely wield its power to decide what expression to allow and what to ban based on such relative and variable concepts as ‘public peace and order’ or ‘social morals and good customs’”.

Next, the Court looked at the second prong of the section to determine its constitutionality. Article 53(2) provides that, “the objects, etc. of the communication, which are deemed harmful to the public peace and order or social morals and good customs under paragraph (1), shall be determined by the Presidential Decree” (p.16). The Court found this provision to violate the rule against blanket delegation, again noting the lack of clarity in the terms.

As to Article 53(3), dealing with restriction of improper communication, the Court found that because 53(1) and (2) were unconstitutional, it followed that Article 53(3) was unconstitutional, without additional analysis. Finally, the Court turned to Article 16 of the Enforcement Decree of Telecommunications Business Act and used the same reasoning as for Article 53(3), finding it unconstitutional by default.

Justices Ha Kyung-Chull, Kim Young-Il and Song In-Joon wrote a dissenting opinion, arguing that Articles 53 and 16(i) should be found to be constitutional, because in light of other legislation the terms “public peace and order” and “social morals and good customs” are sufficiently clear. The dissent did note that there could be a clearer way of defining these terms, but argued that, for the provisions at issue, they were sufficiently clear to survive constitutional scrutiny.