Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The South Korean Court of Appeals held that the blocking of a US-based website in South Korea was unlawful. The website, North Korea Tech, had been blocked by South Korea’s Internet censorship body. The owner of the website challenged the blocking before the South Korean courts, and the First Instance Court and the Court of Appeals held that the blocking was not permissible under South Korean law. The courts found that the blocking of an entire website could only take place in exceptional circumstances where all the content of that website was shown to be illegal. The Court of Appeals also stated that the South Korean Constitution and the International Covenant on Civil and Political Rights recognized the right of all people to disseminate information to Korean people through the internet and, therefore, the US-based owner of the website was entitled to challenge the blocking of his website in South Korea before the domestic courts.
Global FoE could not identify an official government translation for the court decision and information on the case was derived from secondary sources. Global FoE notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.
This case concerned North Korea Tech, a website based in San Francisco that was “dedicated to covering and collecting information regarding the state of information technology and related industry in North Korea.” On March 24, 2016, the Korea Communications Standards Commission, South Korea’s Internet censorship body, blocked North Korea Tech alleging that it was disseminating pro-North Korean content in violation of South Korean law. It had been reported that the decision to block the site was taken after the National Intelligence Service of South Korea informed the Korea Communications Standards Commission that the website was illegal, and the regulator had not carried out its own investigation into the legality of the website.
The owner and operator of the site, Martyn Williams, was never informed about the blocking by the Korea Communications Standards Commission. When he eventually found out about the decision, he filed an objection before the Korea Communication Standard Commission. On May 3, 2016, the Korea Communication Standard Commission dismissed the case, finding that the website advanced pro-North Korean ideals in violation of Article 7 of the National Security Law.
The case was then appealed to the First Instance Court, which reversed the decision of the Korea Communication Standard Commission. The Korea Communication Standard Commission then appealed the decision to the Court of Appeals.
The Court of Appeals found in favor of North Korea Tech, and lifted the ban on the website. In doing so, the Court of Appeals upheld the judgment of the First Instance Court, which had stated that the blocking of an entire website was only permissible in exceptional circumstances where all content on that website had been shown to be illegal. The First Instance of Court also held that the Korea Communications Standards Commission infringed the principle of “minimum regulation” by blocking the website upon the request of the National Intelligence Service without sufficient investigation and review.
The Court of Appeals rejected the argument of the Korea Communications Standards Commission that Martyn Williams, as a non-resident foreigner to South Korea, could not rely on the right to freedom of expression in South Korea. The Court of Appeals found that, regardless of residency, there is a right to disseminate information via the web under the South Korean Constitution and the International Covenant on Civil and Political Rights. Therefore, Martyn Williams could claim that his right to freedom of expression had been violated by the blocking of his website in South Korea.
North Korea Tech was about providing transparency around the North Korean regime. The site’s content on North Korea is not to idealize the regime, but to analyze the current state of affairs in technology there. As the North Korea Tech site was in English, some content of the website had probably been misconstrued as being propaganda in favour of North Korea.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by finding that the blocking of a website in South Korea was unlawful. Approximately 100,000 sites are blocked every year in South Korea. Some originate from South Korea and some are foreign sites. The state blocks websites for reasons such as obscene or illegal content, hate speech, pro-North Korean content, and distortion of history. This case sets an important precedent for two reasons. Firstly, it recognizes that the blocking of an entire website can only take place in exceptional circumstances where all content on the site has been proven to be illegal. Secondly, it recognizes the right of owners of foreign websites to challenge the blocking of their websites before the South Korean courts.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Court of Appeals, this decision binds all lower courts.
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