Case on the order to publish a written apology against unfairelection report

[27-2(A) KCCR 1, 2013Hun-Ka8, July 30, 2015]

In this case, the Constitutional Court held that the part of “publishing a written apology” in Article 8-3 Section 3 of the Public Official Election Act and the part of ‘publishing a written apology pursuant to Article 8-3 Section 3’ in Article 256 Section 2 Item 3(b) of the Former Public Official Election Act and Article 256 Section 2 Item 2 of the current Public Official Election Act violate the Constitution.

Background of the Case

(1) ○○ Inc. is a corporation that publishes a weekly magazine dealing with current affairs in Chongju City. The Election News Deliberative Committee under the Press Arbitration Commission decided to order ○○ Inc. to publish a written apology pursuant to its decision that the corporation carried unfair election news while reporting the suspicion of bribery of Chung ○○ who ran for the 19th National Assembly Election, and consequently on April 6, 2012, the Press Arbitration Commission ordered the corporation to publish a written apology. At the same day, the corporation filed a motion to review the order but the Press Arbitration Commission denied the request on April 12, 2012.

(2) The defendant of the underlying case, the CEO and publisher of the corporation, due to the failure to execute the order, was prosecuted for violating the Public Official Election Act on October 10, 2012.

(3) The requesting court, while reviewing the underlying case, movedsua sponteto request the Constitutional Court a constitutional review of the part of ‘publishing a written apology’ in Article 8-3 and in Article

256 Section 2 Item 3(b) of the Public Official Election Act on February 6, 2013.

Provision at Issue

The subject matters of this case are whether the part of “publishing a written apology” in Article 8-3 of the Public Official Election Act (Revised by Act No. 9785, July 31, 2009, hereinafter, the “Apology Provision”) and the part of ‘publishing a written apology pursuant to Article 8-3 Section 3’ in Article 256 Section 2 Item 3(b) of the Former Public Official Election Act (after revised by Act No. 7681, August 4, 2005 but before revised by Act No. 12393, February 13, 2014, hereinafter the “Former Punishment Provision”) violate the Constitution.

Meanwhile, the current Public Official Election Act revised by Act No. 12393 on February 13, 2014 moved the Former Punishment Provision in this case to Article 256 Section 2 Item 2 and raised the upper limit of fine up to 15 million won, but still provided criminal punishment against the failure to execute the order of publishing an apology. Therefore, the part of ‘publishing a written apology pursuant to Article 8-3 Section 3’ in Article 256 Section 2 Item 3(b) of the current Public Official Election Act (revised by Act No. 12393, February 13, 2014, hereinafter the “Current Punishment Provision”; hereinafter the “Former Punishment Provision” and the “Current Punishment Provision” altogether will be called the “Punishment Provisions” and the “Apology Provision” and the “Punishment Provisions” altogether will be called as the “Instant Provisions” ) should also be included in the subject matters of review (see also2009Hun-Ka27, August 23, 2012).

The provisions at issue in this case are as follows:

[Provisions at Issue]

○ Public Official Election Act (Revised by Act No. 9785, July 31, 2009)

Article 8-3 (Election News Deliberative Committee) (3) The Election News Deliberative Committee shall inspect whether the election news

appearing in newspapers under subparagraph 1 of Article 2 of the Act onthe Promotion of Newspapers, etc., magazines, information publications, electronic publications and other publications under subparagraph 1 of Article 2 of the Act on Promotion of Periodicals, Including Magazines, and news agencies under subparagraph 1 of Article 2 of the Act on Promotion of News Communications (hereafter in this Article and Article 8-4, “periodicals, etc.”) is fair, and shall, in cases where the contents of election news are recognized as unfair upon inspection, decide on the publication of a written apology or a corrected report concerning the contents of the relevant news and shall notify the Press Arbitration Commission thereof, and the Press Arbitration Commission shall order, without delay, the publication of a written apology or a corrected report to the person (hereafter in this Article and Article 8-4, “press company”) who has published the periodicals, etc. which carried unfair election news.

○ Former Public Official Election Act (after revised by Act No. 7681,August 4, 2005 but before revised by Act No. 12393, February 13, 2014)

Article 256 (Violation of Various Restrictive Provisions) (2) Any person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding four million won:

3. A person who has failed to implement it without delay upon receiving a notification falling under any of the following items:

(b) Publishing a written apology or a corrected report pursuant to Article 8-3 (3)

○ Public Official Election Act (revised by Act No. 12393, February 13, 2014)

Article 256 (Violation of Various Restrictive Provisions) (2) Any person who fails to comply with the notice given with regard to any of the following measures shall be punished by imprisonment with prison labor for not less than two years or by a fine not exceeding 15 million

won:

(b) Publishing a written apology or a corrected report under Article 8-3 (3)

Summary of the Decision

The Apology Provision in this case forces news agencies to acknowledge their faults and make an apology pursuant to the decision of the Election News Deliberation Committee when the election news made by news agencies that publish periodicals, etc. are recognized as unfair: this practice that forcibly coerces news agencies to express ethical and moral decision not readily conceded or formed by themselves severely limits the media’s right to personality. Moreover, the Punishment Provisions ensure their effectiveness by providing criminal punishment. According to the Public Official Election Act, however, the Election News Deliberation Committee can order not only the publication of a written apology but also the publication of a corrected report if a news agency is considered to report unfair election news. Also, there could be alternative measures such as the publication of the fact that ‘the news agency has received a decision by the Election News Deliberation Committee to violate the duty of fair report’ and the recommendation of apology even when the publication of a written apology is required.

Further, although there is no doubt that the legislative purposes of the Instant Provisions to contribute to form democratic and fair public opinion by reinforcing the responsibility of news agencies that carry election news are important, the infringement on the media’s right to personality caused by deteriorating media’s social trust and dignity and hampering free expression of personality are not dwarfed by the public interests.

Therefore, the Instant Provisions violate the Constitution, infringing upon news agencies’ right to personality.

Summary of Dissenting Opinion on the Apology Provision by One Justice and Concurring Opinion on the Punishment Provision

The meaning of the right to personality of juristic persons, or in other words, the right to freely express the personality of juristic persons, is unclear and the constitutional basis of such a right is vague. Since the Apology Provision in this case forces the juristic person or news agency to publish a written apology against its will, it simply limits media’s freedom not to express or its general freedom of action. Combined with the importance of public election, given the fact that unfair election news, once published, hardly can be restored unless corrected right after the news has been released, ordering to publish a written apology itself against a news agency that published unfair election news should not be considered an excessive restriction on the media’s fundament right, unless the contents of the apology excessively infringe on the media’s right. As we reviewed in this case, the order to publish a written apology is not fundamentally different from the aforementioned suggestion by the majority opinion to publish a decision by the Election News Deliberation Committee. Therefore, the legislative decision to enable the Election News Deliberation Committee to order news agencies to publish a written apology does not seem to violate the Constitution.

Meanwhile, when news agencies fail to execute the order of publishing a written apology, the legislative purposes of the Apology Provision can also be achieved by imposing fines or providing administrative measure against the news agencies. But as the Punishment Provisions impose criminal punishment on representatives or publishers of news agencies, the Punishment Provisions also infringe upon the freedom of action of the representatives or publishers of news agencies, thereby violating the Constitution.