Case Summary and Outcome

Article 100, section 1, item 1, of South Korea’s Broadcasting Act (Act) was found to be unconstitutional because it amounted to an excessive restriction on speech by allowing the Korea Communications Commission (Commission) to take disciplinary measures against broadcasters by requiring them to make a public apology.

Facts

After the Munhwa Broadcasting Corporation (Munhwa) violated the Deliberation Rules (whether or not these rules actually violated the South Korean Constitution was not considered), the Commission ordered Munhwa to make a public apology to its viewers. This disciplinary action was pursued according to the Commission’s power derived under article 100, section 1, item 1, of the Act. Munhwa filed suit, stating it had not violated the Deliberation Rules; the court then submitted the case to the Constitutional Court of Korea for a determination as to the constitutionality of the Act.

Decision Overview

The Constitutional Court of Korea found the provision in article 100, section 1, item 1, of the Act, which permitted the Commission to order violators to make a public apology, to be unconstitutional. The Court held that requiring broadcasters to make a public apology against their will hindered freedom of expression and was not the least restrictive means possible of achieving the purposes of the Act. Other disciplinary measures identified in the act, such as the issuance of a warning, were better suited to meet the least restrictive means standard. The Court emphasized the existence of a legal personality right that was harmed by requiring a public apology.

One justice dissented, arguing that the legal personality right is limited to individual human beings. The application of this right to a legal entity, a broadcasting corporation, goes beyond the scope of the right.