Case Summary and Outcome

The Constitutional Court of South Korea found that an Act which penalized the distribution of obscene materials was constitutional because the relevant provision  did not violate the rule of clarity nor the prohibition on excessive restriction/principle of proportionality. However, the Court also set an important precedent in its judgment by recognizing that not all obscene materials should be refused protection under the Constitution’s guarantees of freedom of expression. In so doing, the Court reasoned that an expression cannot be excluded from the boundary of protection of the freedom of expression at the outset just because it contains certain content. Instead,  it said that “insulting expressions” that may infringe on others’ reputation or rights are to be protected as freedom of speech guaranteed under Article 21 of the Constitution, but that such expressions can be restricted for the purpose of national security, maintenance of law and order, or public welfare.

Facts

In this case the petitioners were prosecuted under Article 65 of the former “Act on Promotion of Information and Communications Network Utilization and Information Protection” for openly displaying and distributing obscene materials over the internet. The petitioners applied to the lower court for constitutional review of this provision which was denied. They subsequently appealed to the Constitutional Court arguing that the provision violated the rule of clarity, that the law was not sufficiently clear to be predictable, and the rule against excessive restriction/principle of proportionality.

Decision Overview

The Court unanimously held the Act constitutional.

Article 65 of the Former Act on Promotion of Information and Communications Network Utilization and Information Protection provides that, “[a]ny person who has distributed, sold, rented, or openly displayed lascivious codes, letters, sounds, visuals, or films through information and communications networks shall be punished by imprisonment with prison labor for not more than 1 year or by a fine not exceeding 10 million won. ” Although the Court found that just because something is considered obscene does not necessarily mean that it is not protected under the Constitution (overruling previous precedent), it held that this provision, as written, was constitutional because it did not violate the rule of clarity nor the prohibition on excessive restriction. However, the Court also overruled its precedent that an “obscene” expression is not protected by Article 21 of the Constitution which protects freedom of speech and the press. In this regard it ruled that although obscene materials can be protected under the Constitution, they can be regulated for certain purposes including the promotion of public welfare as applied in this case.

Three justices gave a concurring Opinion in which they clarified what they considered “obscenity” entailed under the instant provision. Referring to the U.S. Constitution and German criminal law, the justices stated that obscenity as referred to in the Act is “indecent and blunt sexual expression that distorts human dignity or personality, that solely appeals to sexual interest, and that overall has no literary, artistic, scientific or political values.” The justices further explained that the Act did not violate the rule of clarity because it offered a sufficient guideline for individuals as to what was considered obscene.