Constitutional Court of Korea

The Standard of Requirement for Correction of Korea Communications Commission

[2011Hun-Ka13, February 23, 2012]

In this case, the Constitutional Court held Article 21 Item 4 of the Act on the Establishment and Operation of Korea Communications Commission, which stipulates the ¡®review and requirement for correction on information prescribed by Presidential Decree as necessary for nurturing sound communications ethics or requests for correction¡¯ as a duty of the Korea Communications Standards Commission, constitutional on the ground that it does not violate the rule of clarity and the rule against blanket delegation.

Background of the Case

(1) The Korea Communications Standards Commission (hereinafter, the ¡°KCSC¡±) required OO Communications Corp. to delete a posting regarding the toxicity of domestic cement, which is posted on the blog of OO Communications Corp. by the petitioner, on the ground of Article 21 Section 4 of Act on the Establishment and Operation of Korea Communications Commission (hereinafter, the ¡°KCC Act¡±) and Article 8 Section 1 and 2 of its enforcement decree on April 24, 2009 for violating Article 44-7 Section 1 Item 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection (hereinafter, the ¡°Information and Communications Act¡±) that regulates the ¡°defamatory information intentionally made to damage one¡¯s reputation¡± (hereinafter, the ¡°instant requirement for correction¡±).

(2) KCSC dismissed the appeal against the instant requirement for correction, raised by the petitioner. The petitioner filed a suit for the cancellation of the instant requirement for correction in Seoul Administration Court, which declared to admit the claim of the petitioner.

(3) The KCSC appealed. While the appeal was pending, the petitioner filed a motion to request the court seek the Constitutional Court¡¯s review on Article 21 Item 4 of the KCC Act and Article 44-7 Section 1 Item 2 of the Information Act. Seoul Administration Court, the underlying court, accepted the motion regarding Article 21 Item 4 of the KCC Act, thereby requesting the Constitutional Court for this constitutional review.

Provision at Issue

At issue in this case is whether Article 21 Section 4 of Act on the Establishment and Operation of Korea Communications Commission (enacted by Act No. 8867 on February 29, 2008) (hereinafter, the ¡°instant provision¡±) is unconstitutional. The text of the instant provision is as follows:

Act on the Establishment and Operation of Korea Communications Commission (enacted by Act No. 8867 on February 29, 2008)

Article 21(Duties of Korea Communications Standards Commission) Duties of the Korea Communications Standards Commission shall be as follows:

4. Review and requirement for correction on information prescribed by Presidential Decree as necessary for nurturing sound communications ethics, from among information open and transmitted to the public via telecommunication circuits

Summary of the Decision

1. Court Opinion

A. Rule of Clarity

 Despite its abstractness, the concept of ¡®healthy communications ethics¡¯ of the instant provision means the minimum social order or ethical code required by our society in conveying information through communication networks. Further, ¡®information prescribed by Presidential Decree as necessary for nurturing sound communications ethics¡¯ (hereinafter, ¡°unhealthy information¡±) means information that necessitates review and requirement for correction as it violates the order or ethical code of this society. Considering the extensive scope and speed of changes in the field of communication networks and the difficulty to codify diverse and variable expression forms, such connotative expression of the instant provision is inevitable. Therefore, the instant provision does not violate the rule of clarity.

B. Rule against Blanket Delegation and Rule of Statutory Reservation

  The instant provision restricts the scope of information subject to review and requirement for correction delegated to the presidential decree among ¡®information open and transmitted to the public via telecommunication circuits,¡¯ by adding the phrase of ¡®as necessary for nurturing sound communications ethics.¡¯ A comprehensive understanding of relevant laws, including the provisions on the purpose and illegal information of the Information and Communications Act (Articles 1, 41 through 44-3, and 44-7), suggests anyone can predict that unhealthy information prescribed by Presidential Decree subject to review and requirement for correction would be the information that is prohibited or regulated by the above provisions of the Information and Communications Act, or one that is similar to such information. Thus, the instant provision does not violate the rule against blanket delegation. Nor is the rule of statutory reservation violated in that unhealthy information subject to review and requirement for correction is stipulated by the instant provision and its appropriately delegated enforcement decree.

C. Rule against Excessive Restriction

The purpose of the instant provision is legitimate in that the regulation on unhealthy information prevents harmful effects of the online media and promotes healthy development of electronic communication business. The review and requirement for correction of the KCSC with regard to unhealthy information are also appropriate means for achieving the legislative purpose.

In addition, the principle of the least restrictive means is not infringed because the requirement for correction stipulated by the instant provision is carried out by the phased measures under the enforcement decree to minimize restrictions on the freedom of expression of the publisher; the instant provision does not provide any penalties against non-compliance with the requirement for correction; and alternative regulatory measures on unhealthy information which is less restrictive to freedom of expression, can hardly be found. Considering the duplicability, transferability, and speed of online information, the public interest to cultivate healthy communication ethics through requirement for correction of the instant provision is significant, while the freedom of expression of those who post the information is restricted only in deleting relevant information or limiting the use of relevant communication network, thereby fulfilling the principle of balance of interests. Therefore, the instant provision does not violate the rule against excessive restriction.

2. Dissenting Opinion by Three Justices

A. Rule of Statutory Reservation

The rule of statutory reservation today does not simply require that administrative action be based on statute; rather, it further demands that the legislature, which represents the citizens, itself decide essential substantive matters within the realm that is fundamental and of significance to the State and its citizens, especially where the basic rights are concerned.

In establishing the system of requirement for correction that restricts the freedom of expression, the legislature should have concluded, at the minimum, the parties, contents, and effects of requirement for correction to concretize the system of requirement for correction and clearly stipulated them in the law or delegated to presidential decree along with specified guidance. However, the instant provision merely states ¡®requirement for correction of information¡¯ as an obligation of the KCSC without referring to any of the above or delegating them to presidential decree. Therefore, the rule of statutory reservation is violated.

B. Rule against Blanket Delegation

The ¡®healthy communication ethics¡¯ of the instant provision is not clarified at all; rather, it is a mere tautology of ¡®public morals or social ethics¡¯ of Article 21 Section 4 of the Constitution or ¡®creating a healthy culture in the areas of information and communications¡¯ of Article 18 Section 1 of the KCC Act. Therefore, even an administrative agency would not concretely confirm its meaning because the decision whether a certain expression is necessary for nurturing ¡®healthy communication ethics¡¯ depends on values or ethics of each person.

In addition, although the phrase ¡®as necessary for nurturing healthy communications ethics¡¯ of the instant provision refers to ¡®matters requiring review and requirement for correction,¡¯ the definition of ¡®matters requiring review and requirement for correction¡¯ is not clarified because, as discussed above, the fundamental elements of requirement for correction, including its parties, contents and effects, are not stipulated by law.