Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
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Article 93(1) of the Public Official Election Act (Act) prohibited the transmission of any information relating to a political candidate within 180 days of an election day. The Act encompassed internet activity. The Act was found to be unconstitutional because a complete prohibition of the dissemination of information via the internet was not the least restrictive means to protect candidates in election campaigns and because the Act unlawfully infringed on freedom of political expression and freedom of election campaigns.
This case before the Constitutional Court of Korea was one of four that had been consolidated, all of which claimed article 93(1) of the Act was unconstitutional. The specific allegation in this case was that the National Election Commission’s interpretation of the Act infringed on the freedom to express political opinions.
The Constitutional Court of Korea recognized the legitimate interest that the legislature has in preventing corruption and ensuring fair elections, but noted that this interest needs to be balanced with the public’s right to freedom of political expression. To determine whether the restriction in article 93(1) of the Act was valid, the Court analyzed four factors: (1) the legitimacy of the Act’s purpose, (2) the appropriateness of its means, (3) the least restrictiveness, and (4) the balance of legal interests. Under this analysis, the Court found that the purpose of the restriction, to ensure fairness in election campaigns and protect against corruption, was legitimate.
However, the restriction failed under the other three factors. The Court found that an all out restriction on political speech over the Internet within 180 days of an election was not an appropriate means of achieving the Act’s purpose. Further, the Court found that the all out ban was excessive and not the least restrictive means to achieve the desired purpose of the Act. Finally, the Court employed a balancing test between the interests of democracy versus the utility of the ban. In this case, the Court ruled the interests of democracy outweighed the purpose of the ban, which was overbroad. Therefore, the Court held that the provision prohibiting and punishing political speech via the Internet in article 93(1) of the Act to be unconstitutional.
Two Justices dissented, finding that article 93(1) of the Act had the legitimate purpose to guarantee freedom and fairness in elections. They argued that the interests of democracy and freedom of speech did not outweigh this legitimate purpose and asserted that the restriction was an appropriate means through which to achieve this end.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands freedom of expression by finding unconstitutional relevant portions of article 93(1) of the Public Official Election Act (Act), which placed an all out ban on Internet communication within 180 days of any election. The Constitutional Court of Korea decided that although the restriction had a legitimate purpose, an all out ban was neither the least restrictive nor the most appropriate means to accomplish the Act’s objectives.
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.
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