Identity Verification of a Person Intending to Use Materials Harmful to Juveniles on the Internet Case

[27-1(A) KCCR 312, 2013Hun-Ma354, March 26, 2015]

In this case, the Court held that Article 16 Section 1 of the Juvenile Protection Act which requires a person intending to provide materials harmful to juveniles through an information and communications network to verify the age and identity of a prospective recipient of the materials and Article 17 of the Enforcement Decree of the Juvenile Protection Act which specifies methods of verification such as an authenticated certificate, I-PIN (Internet Personal Identification Number), and cell phones do not infringe on the complainants’ right to know and right to self-determination on personal information.

Background of the Case

While the complainants tried to listen to music files and view music video files from the Internet sites, access to those music and video files was not allowed, even for adults, without going through identity verification process, as those files were designated as materials harmful to juveniles. Thereupon, the complainants filed a constitutional complaint in this case, claiming that Article 16 Section 1 of the Juvenile Protection Act and Article 17 of the Enforcement Decree of the Juvenile Protection Act which require a person intending to provide materials harmful to juveniles to verify the age and identity of a prospective recipient through means such as an authenticated certificate infringe on rights such as the right to know and the right to self-determination on personal information.

Subject Matter of Review

The subject matter of review in this case is whether the part in the

front part of Article 16 Section 1 of the Juvenile Protection Act (wholly amended by Act No. 11048 on September 15, 2011) related to a person providing materials harmful to juveniles through an information and communications network specified in subparagraph 1 of Article 2 Section 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (hereinafter referred to as the “Information and Communications Network Act”) and Article 17 of the Enforcement Decree of the Juvenile Protection Act (the aforementioned provisions are hereinafter collectively referred to as the “Identity Verification Provisions at Issue”) infringe on fundamental rights of the complainants. The provisions at issue read as follows:

Provisions at Issue

Juvenile Protection Act (wholly amended by Act No. 11048, September 15, 2011)

Article 16 (Prohibition of Sale, etc.)

(1) A person who intends to sell, lend, or distribute a media product specified by Presidential Decree as harmful to juveniles to a person or provide such product to a person for viewing, watching, or using shall verify the age and identity of the person and shall not sell, lend, or distribute such product to a juvenile or provide such product to a juvenile for viewing, watching, or use.

Enforcement Decree of the Juvenile Protection Act (wholly amended by Enforcement Decree No. 24102, September 14, 2012)

Article 17 (Methods of the Age and Identity Verification)

In the event a media product harmful to juveniles is being provided by a means such as sales in accordance with Article 16 Section 1 of the Juvenile Protection Act, the age and identity of a prospective recipient must be verified by any of the following means or methods:

1.Face to face verification of an identity card, or verification of a copy of an identity card received by fax or mail

2.An authorized certificate specified in subparagraph 8 of Article 2 of the Digital Signature Act

3.A method of identity verification not using resident registration numbers as specified in Article 23-2 Section 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.

4.A method of joining as a member without using resident registrationnumbers pursuant to Article 24 Section 2 of the Personal Information Protection Act

5.Certification by a credit card

6.Certification by a cell phone. In this case, the age and identity must be verified by adding means such as the sending of text messages or voice automated response via cell phones.

Summary of the Decision

As the Identity Verification Provisions at Issue aim to block and protect juveniles from harmful materials containing obscenity and violence by accurately confirming the age of a person using materials harmful to juveniles, legitimacy of the legislative purpose of the Provisions is recognized, and because verification of an identity card through face to face contact is virtually impossible on the Internet, requiring identity verification through a licensed certification authority or a third party carrying information for identify verification is an appropriate means to achieve the legislative purpose.

The means of identity verification such as an authorized certificate, I-PIN, and cell phones prescribed by the Identity Verification Provisions at Issue was developed from reflective consideration of reckless collection of resident registration numbers in the past. Such means is a measure devised to achieve accurate identity verification and at the same time to minimize the giving and maintenance of private information by having the identity verification conducted through a reliable institution. Furthermore, unless a user voluntarily consents to the giving of personal

information, the Identity Verification Provisions at Issue, in and of themselves, do not provide grounds based on which an information provider may collect and maintain personal information of a user, and even in the event a user consented to the giving or collection of the information, the personal information collected shall be protectedpursuant to the Act on the Promotion of Information and CommunicationsNetwork Utilization and Information Protection, etc. Based on these grounds, the Identity Verification Provisions at Issue do not violate the principle of the least restrictive means.

Considering the nature of the Internet media that has likelihood of indiscriminate dissemination with the strong distributive powers, the public interest which such restrictions aim to serve, namely, the protection of juveniles, is very significant. On the other hand, the detriment to be suffered by the complainants as a result of the Identity Verification Provisions at Issue is having to go through the identity verification process when they wish to use the materials harmful to juveniles on the Internet. Therefore, a balance of interests is also met.

Accordingly, the Identity Verification Provisions at Issue are not against the rule against excessive restriction and do not infringe on fundamental rights of the complainants.

Summary of Dissenting Opinion by One Justice

While there is a need to block and protect the juveniles from harmful environments, the Identity Verification Provisions at Issue, despite availability of less restrictive alternative means such as installment of filtering software, in certain aspects excessively restrict an adult’s right to freely access the materials harmful to juveniles by requiring every user to undergo the identity verification procedure, which is complicated and bears significant risk of personal information leakage. Moreover, in case of a person providing the materials for non-commercial purposes or others providing the materials via websites on foreign-based servers, the verification requirements tend to be less effective as regulating those

providers is practically difficult. Therefore, the Identity Verification Provisions at Issue are against the rule against excessive restriction which is the threshold requirement that must be met when limiting fundamental rights and thereby infringe on fundamental rights of the complainants.