Case Summary and Outcome

The Constitutional Court of Korea found that Section 47 0f the Electronic Communications Act violated the rule of clarity through its use of the term “public interest.” The Court reasoned that laws restricting freedom of expression must be clear and explicit and that a provision punishing those who communicate false information with an intent to harm the public interest was unclear because it failed to define what harm to the public interest would constitute a crime. Further, the term “public interest” in the provision was fluid and would vary depending on each individual’s background so that it was not sufficiently clear to survive the strict scrutiny review applicable to laws  restricting freedom of expression.

Facts

This case involved two challenges to Article 47 of the Electronic Communications Act which provides that a “person who has publicly made a false communication through the electronic telecommunications facilities and equipment with the intent to harm the public interest shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won”.

The first case arose after Petitioner Kim Joo was charged with violating the Act for allegedly posting false information about a woman being raped by the police during a protest. Kim Joo’s request for review of the constitutionality of the provision was denied and the District Court found Kim Joo guilty of the offense. This was appealed to the Constitutional Court.

The second case concerned Petitioner Park Sung’ who posted allegedly false information about the Korean federal reserve being depleted. Park Sung also requested review of the constitutionality of the provision, which was denied. Park Sung was found not guilty and the prosecution appealed. Park Sung then petitioned the Constitutional Court for review of the provision at issue. The cases were consolidated into this decision for review by the Constitutional Court.

Decision Overview

The Court found that the provision was unconstitutional because it violated the rule of clarity.

The Court noted that in the realm of freedom of expression, laws restricting that freedom must be clear and explicit and they are subject to scrutiny on a strict level.  It stated that the impugned provision punishes those who communicate false information with an intent to harm the public interest, and that it had to consider what constituted an intent to harm the public interest. The Court found that the definition of “public interest” was unclear and that the Act failed to define what harm to the public interest would constitute a crime in practical terms, therefore failing the strict scrutiny test. It said that the public interest was an abstract concept, and one that could change depending on each individual. In these circumstances it found that the term “public interest” is not always unclear, depending on the context in which it was used, but that for the instances of the provision at issue it violated the rule of clarity.

Four justices wrote separately to concur, finding that the provision violated the rule of clarity not only from the “public interest” point of view, but also because the term “false communication” was not sufficiently clear in the Act.

Five justices wrote separately to concur, finding that the instant provision was not only in violation of the rule of clarity, but also ambiguous and an impermissible restraint on freedom of expression.

Three justices dissented, finding that the Act was neither an excessive restraint on freedom of expression, nor a violation of the rule of clarity. The dissent argued that as long as “a law sufficiently explains to [an] ordinary person with common legal sentiment about who are regulated by the law and what kind of acts are prohibited in detail, it does not violate” the rule of clarity. The dissent found that the Act met this standard.