A. Background of the Case
This case held that theprovisions of the Enforcement Decree of the Act on the Promotion of Newspapers,Etc. stipulating that an online newspaper must have at least five regularreporting and editing employees, including three or more reporters, and submittheir certificates of National Pension enrollment to be eligible to register asa stand-alone online newspaper (hereinafter referred to as the “Employment andVerification Provisions”), are unconstitutional.
Online news media,which emerged with the development of communication networks, began to beregulated as a media outlet by the former Act on the Guarantee of Freedom andFunctions of Newspapers, Etc. amended on January 27, 2005. The EnforcementDecree of said Act required that an online newspaper must employ at least threeregular reporters and editors, including at least two reporters.
This requirement remainedunchanged even after the said Act was wholly amended and renamed the Act on thePromotion of Newspapers, Etc. (hereinafter referred to as the “Newspaper Act”).The Enforcement Decree of the Newspaper Act amended on November 11, 2015,strengthened the regular employment requirement that an online news agencysubmit the certificates of coverage under the National Pension, etc. of theiremployees at the time of registration; and that the existing online new mediafulfill such requirement no later than one year after the amended PresidentialDecree takes effect.
The complainants,online newspaper corporations or individuals operating online newspapers, fileda constitutional complaint claiming that their fundamental rights wereinfringed by the Employment and Verification Provisions.
B. Summary ofthe Decision
The ConstitutionalCourt ruled that the Employment and Verification Provisions violate theConstitution by infringing upon the freedom of press, on the following grounds.
The Employment andVerification Provisions limit press freedom because they have the effect ofrestricting the publication of online newspapers. Even if there is a need toregulate harm caused by misleading online media reports, the Newspaper Act, etc.already has other less restrictive methods. If small-scale online newsplatforms are excluded from the application of the Newspaper Act according tothe Employment and Verification Provisions, they will not bear the obligationsas a news agency under the Newspaper Act, leaving them completely out of thescope of the law that prevents or remedies harm caused by their mediaactivities.
If an online newspaperis reporting fake or fraudulent news, or producing reports against journalismethics, it will be shunned and eventually be rejected by readers. As such, theCourt found it implausible to provide separate, additional law enforcement onlyfor online newspapers, other than those already established in order to preventthe damage that inaccurate news reports can cause. In addition, thedeterioration of online journalism and the damage caused thereby is due to thedistribution structure that relies on searches from a web portal, rather than ashortage of manpower in the online news agencies. Therefore, a more fundamentalsolution in this case can be applied by improving such distribution structure.The Court thus declares the Employment and Verification Provisions in violationof the Constitution.
Justices Kim Chang-Jongand Cho Yong-Ho filed a dissenting opinion which pointed out that the Employmentand Verification Provisions only restrict the external conditions forconducting media activities in the form of online newspapers, which does notdirectly restrict the freedom of press, but restricts the freedom ofjournalists to do their job. They opined that the Employment and VerificationProvisions stipulate the minimum requirements necessary to guarantee the roleof journalism for online newspapers and, due to the peculiarities of onlinenewspapers which differ from printed newspapers, there is good reason to treat themdifferently from offline newspapers by providing personnel requirements. Also,it is hard to say that the Employment and Verification Provisions infringe onthe credibility of existing online news agencies, because they are given aone-year grace period.
C. Aftermath of the Case
After this decision, onMarch 15, 2017, the provisions requiring the employment of regular employees atonline newspapers were deleted from the Presidential Decree of the NewspaperAct by Presidential Decree No. 27936.