A. Background of the Case
In this case, the Constitutional Court ruled that the provisions of the Public Official Election Act (hereinafter referred to as “Provisions on Barring Journalists from Election Campaigns”), which prohibit journalists prescribed by Presidential Decree from engaging in election campaigns and impose criminal punishment for a violation of such prohibition, are contrary to the Constitution.
The requesting petitioners were indicted for having engaged in election campaigns through internet podcasts, etc. on numerous occasions, despite being journalists and thus prohibited from doing so. Thereupon, they filed a motion to request constitutional review of the instant provisions, and the court accepted such motion and requested a constitutional review of this case.
B. Summary of the Decision
The Constitutional Court ruled that the Provisions on Barring Journalists from Election Campaigns violate the Constitution. The Court’s reasoning is summarized as follows.
The Provisions on Barring Journalists from Election Campaigns merely state, “a journalist as prescribed by Presidential Decree” and, aside from the word “journalist,” do not include any other modifier that restricts the scope of what is to be defined by the Presidential Decree. Furthermore, it is difficult to foresee, even from an overall examination of the related provisions, the scope of media outlets that would apply, of the numerous sources including broadcasting, newspapers and news agencies, and how deeply a person should be involved in the work to be called a journalist. Therefore, the instant provisions violate the rule against blanket delegation.
Today, the scope of “journalists” to be covered by the Provisions on Barring Journalists from Election Campaigns is excessively broad. It is unnecessary to prohibit journalists who do not require political neutrality from engaging in election campaigns based on their personal judgment outside of their work, without using mass media. Besides, the problems caused by the intervention of journalists in elections are already sufficiently regulated through various approaches. Thus, the Provisions on Barring Journalists from Election Campaigns infringe on their freedom to engage in election campaigns.
Justices Kim Chang-Jong and Cho Yong-Ho stated their dissenting opinion, as follows.
It is sufficiently predictable that the scope of journalists to be prescribed by Presidential Decree can be specified by the standard of whether they engage in work related to the formation of public opinion on elections, such as operation, management, editing, writing and reporting, at press agencies including broadcasting and newspapers or at similar media outlets. Therefore, the Provisions on Barring Journalists from election campaigns do not violate the rule against blanket delegation. Also, the Provisions on Barring Journalists from Election Campaigns aim to prevent the collusion between politics or power and the media and the adverse effects that may arise from the intervention of journalists in elections, and to achieve the public interest of securing fairness and equity in elections. Accordingly, the provisions do not infringe on the freedom to engage in election campaigns.
C. Aftermath of the Case
Regarding this decision, there were opinions that journalists’ party activities or political remarks would be freer than before, but removing the distrust in the mass media’s fairness remained to be resolved (The Segye Times, June 30, 2016; The Dongyang Ilbo, July 3, 2016).
Meanwhile, the Public Official Election Act, which was amended by Act No. 14839 on July 26, 2017, limits journalists prohibited from engaging in election campaigns to those prescribed by the National Election Commission Regulations (Article 53 Section 1 Item 8 and Article 60 Section 1 Item 5 of the said Act).