A. Background ofthe Case
This case held that theprovisions of the Act on Promotion of Information and Communications NetworkUtilization and Information Protection, Etc. that provide for real-nameverification on the internet (hereinafter referred to as the “InstantProvisions”), which require users of an internet forum or message board toverify their identity, are unconstitutional.
The complainants werethose who wished to post anonymously messages or comments on message boards,and an internet news agency. They filed a constitutional complaint arguing thatthey had to verify their identity according to the real-name registrationrequirement by the message board operators to post comments. The internet newsagency also claimed that it had to bear the obligation to confirm the identityof those who wanted to upload information on its message board.
B. Summary ofthe Decision
The ConstitutionalCourt ruled that the Instant Provisions violate the Constitution by infringingupon the freedom of speech and press, for the following reasons.
The purpose of the real-nameverification system is to create a healthy internet culture by restrictingillegal acts such as the defamation of others on internet forums and securingbasic data that can identify persons committing illegal acts when damage orharm is caused by such acts.
However, if a person isdamaged by illegal information posted on a message board, the identityverification of the penetrator uploading that illegal information can besubstantially conducted by tracing or confirming web addresses. In addition,remedy for the victim can also be fully obtained by blocking the distributionor diffusion of illegal information, through the deletion of information ortemporary measures taken by the relevant service provider, denying orsuspending the message board manager or operator from handling illegalinformation, or postcrimecompensation or criminal punishment.
Furthermore, thereal-name verification requirement mandates that the service provider must keepthe identity verification information for up to six months after thepublication of the information ends, which means that the information may bestored for an indefinite period of time unless it is deleted from the messageboard.
Freedom of expression isone of the core constitutional values that serve as the basis of democracy. Restrictingthat freedom is thus allowed only when the public interest to be achieved bythat restriction is obvious. However, there is no evidence showing that, afterthe implementation of the identity verification system, the posting of illegalinformation including defamatory information has significantly decreased.Rather, the Court found that various problems have occurred: domestic internetusers have turned to overseas companies to host websites and services; and theimplementation of the Instant Provisions is being challenged due to disputes ondiscriminatory enforcement favoring foreign business entities over domesticones or arbitrary enforcement.
For the foregoing reasons,the Instant Provisions violate the rule against excessive restriction and thusinfringe on the complainants’ freedom of expression, right of selfdetermination on private information, and freedom of press.
C. Aftermath ofthe Case
After this decision,the National Assembly revised the Act on Promotion of Information andCommunications Network Utilization and Information Protection, Etc. by Act No.12681 to delete the Instant Provisions on May 28, 2014.
The real-nameverification requirement was introduced in July 2007 to prevent the harmfuleffects of vicious posts and vile comments on the internet. Initially, it wasonly applied to online service providers whose average number of users exceeded300,000 per day; but since January 2009, the number of such providers hasincreased from 37 to 153 as its coverage has been expanded to those with anaverage of 100,000 users per day.
However, there wasconstant criticism that this is a regulation specific to Korea that does notexist in other countries; the freedom of anonymous expression should berecognized; and the freedom of expression was being restricted. Although mostof the country’s media and press welcomed the decision, some raised concernsthat the Constitutional Court only emphasized the freedom of expression,neglecting adverse effects such as defamation of others (The Seoul EconomicDaily on August 28, 2012).