Constitutional Court of Korea

The Ban on Use of Communication Networks for Criminal Purposes

[2008 Hun-Ma 500, February 23, 2012]

In this case, the Constitutional Court held that Article 44-7 Section 1 Item 9 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, which prohibits circulation of information the content of which is intended to commit, solicits or aids a crime did not violate the principle of clarity or the principle against excessive restriction and thus is constitutional.

Background of the Case

(1) Around June, 2008, the complainants made a list of names and telephone numbers of the companies that had published their advertisements on a newspaper, OO-Ilbo. They then posted the list on online bulletin boards and cafes created on a web portal operated by OO-Communications Corp. and submitted a posting that encourages people to call and ask the companies on the list to stop advertising on the newspaper.

(2) OO-Communications Corp. sought for the review of the Respondent, Korea Communications Standards Commission, on the postings of June 2, 2008 and June 20, 2008. On July 1, 2008, the Respondent concluded that some postings violated Article 7 Section 4 and Article 8 Section 4 of the Review Standards of the Information and Communication Ethics Committee. The Respondent decided to make a requirement for correction demanding OO-Communications Corp. to delete the relevant information (hereinafter ¡°the correction requirement¡±). The decision was notified to OO-Communications Corp.

(3) Upon the Respondent¡¯s decision, OO-Communications Corp. deleted the postings, and  the complainants subsequently brought this constitutional complaint seeking cancellation of the correction requirement, as well as constitutional review of Article 44-7 Section 1 Item 9 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Article 21 Section 4 of the Act on the Establishment and Operation of Korea Communications Commission, Article 8 of the Enforcement Decree of the same Act, and Article 7 and Article 8 Section 4 of the Review Standards of the Information and Communication Ethics Committee. The complainants argued that the correction requirement in this case infringes on their freedom of expression.

(4) The Constitutional Court decided to review the complaint as to Article 44-7 Section 1 Item 9 of the Act on Promotion of Information and Communications Network Utilization and Information Protection but to reject review of the other complaints for they are not justiciable.

Provision at Issue

Among the provisions at issue, one that meets the justiciability requirement is Article 44-7 Section 1 Item 9 of the Act on Promotion of Information and Communications Network Utilization and Information Protection (amended by Act No. 8289 on January 26, 2007 and amended by Act No. 9119 on June 13, 2008 but before taking into effect on December 14, 2008) (hereinafter ¡°Instant Provision of the Information and Communications Act¡±).

Act on Promotion of Information and Communications Network Utilization and Information Protection (amended by Act No. 8289 on January 26, 2007 and before amended by Act No. 9119 on December 14, 2008)

Article 44-7 (Prohibition on Circulation of Unlawful Information)

(1) No one may circulate information falling under any of the following subparagraphs through an information and communications network.

9. Other information that is intended to commit, solicits or aids a crime.

Summary of the Decision

1.      Court Opinion

The summary of the Court opinion on the Instant Provision of the Information and Communications Act is as follows.

A. The principle of clarity

Reflecting the meaning of the terms of general usage, ¡°crime,¡± ¡°solicit¡± and ¡°aid,¡± the phrase ¡°information that is intended to commit a crime¡± should mean information circulated for the purpose of committing a crime, the content of which self-evidently shows the criminal purpose. Likewise, ¡°information that solicits or aids a crime¡± can be interpreted as information the content of which encourages or helps another person to commit a crime.

Here, because there is no particular limiting language as to the scope of ¡°crime,¡± it should cover all crimes that are subject to criminal punishment, regardless of severity of the statutory penalties. Meanwhile, because online media allow speedy and broad transmission of information to indiscriminate people, the potential danger of using online media in committing or facilitating crimes is significant. The Instant Provision of the Information and Communications Act intends to prevent such danger at an earlier stage, and thus does not require that those who posted the concerned information or the principal offender who was solicited or aided have already made any action to commit the crime.

In this regard, we cannot conclude that the Instant Provision of the Information and Communications Act is vague such that it harms the predictability of law or enables arbitrary implementation by administrative agencies.

B. The principle against excessive restriction

Electronic communication networks, particularly the Internet, have characteristics qualitatively different from other methods of communication in terms of its speed, transferability, and duplicability. These characteristics make crimes more likely to occur and enable swift spread of the harms when ¡°information that is intended to commit, solicits, or aids a crime¡± is circulated. The Instant Provision of the Information and Communications Act intends to prevent such ill-effects and create an environment for healthy use of communication network by prohibiting circulation of information described above. This legislative purpose is legitimate. The means adopted here include having the Respondent, a professional organization, review whether a material constitutes prohibited information and blocking circulation of such prohibited information in advance through the Respondent¡¯s correction requirement or the Korea Communications Commission¡¯s order of rejection, suspension or restriction. These means are proper to achieve the legislative purpose.

The decision whether an act constitutes a crime as an anti-social activity is entrusted to the legislature. Because information that is intended to commit, solicits or aids a crime, as defined by the legislature, constitutes in and of itself ¡°an expression that is clearly illegal and harmful to the society,¡± it cannot be an excessive restriction on freedom of expression. Even when a person circulates prohibited information, the penalty is not criminal but a mere requirement of correction or an order of rejection, suspension or restriction of the concerned information by which to preclude access to or remove the information, or limit the use of the relevant website. In this regard, the means satisfy the requirements of least restriction and of balance among legal interests.

Therefore, the Instant Provision of the Information and Communications Act does not violate the principle of clarity and the principle against excessive restriction.

2. Dissenting Opinion by Three Justices

A. Violation of the principle of clarity

The Instant Provision of the Information and Communications Act refers to ¡°information that is intended to commit a crime;¡± that is, it regulates only subjective intent of the person who posts the information. It neither otherwise limits nor provides any guidance on the content of the regulated information. As a result, the scope of regulated information under the Instant Provision of the Information and Communications Act can be limitless. Further, an act of posting that falls short of satisfying an element of a crime but merely is preparatory or at the phase of plotting a crime, can also be subject to the regulation. Consequently, the coverage of the regulation under the provision and as applied by the administrative agencies is unpredictable.

As the majority opinion indicates, the Instant Provision of the Information and Communications Act places no limit on the types of ¡°crime¡± subject to the regulation. The nature of online media where information can be quickly circulated to indiscriminate people inevitably requires that its regulatory system may be invoked by the content of the information only, regardless of existence of the principal and his or her undertaking of crime. In this situation, setting an objective limitation of ¡°information that solicits or aids a crime¡± is difficult.

2. Violation of the principle against excessive restriction

The Instant Provision of the Information and Communications Act regulates ¡°information that is intended to commit, solicits or aides a crime¡± by generally treating it as illegal information. The vagueness, abstractness, and comprehensiveness of the concept of illegal information allow even those expressions that do not require restriction to be subject to the regulation; thereby, it violates the principle against excessive restriction.

In general, a crime is a social evil the regulation of which is necessary for the public interest. However, determining what kind of act constitutes a crime often triggers social controversy. Moreover, certain sensitive expressions about political, economic and social issues may have some relevancy to certain crimes or can be perceived as an act of circulating information that is intended to commit a crime. Thus, an act of expression should be distinguished from actual criminal behaviors, and unless the expression in and of itself causes an imminent and serious social evil, it should remain within the area of freedom.

Furthermore, the fact that the regulatory scheme allows the Respondent or the Korea Communications Commission, which has the characteristics of an administrative agency, to select certain information to be subject to a correction requirement or an order of rejection, indicates that it has a danger similar to censorship. This necessitates that such content-based regulation by an administrative agency be more clearly stipulated by statutory provisions and be limited to extremely exceptional cases where the harm by the act of expression cannot be prevented by the judicial process in the justice system.