31. Removal of Posts Containing Unlawful Information Case

[26-2(A) KCCR 466,2012Hun-Ba325, September 25, 2014]

In this case, the Court upheld subparagraph 8 of Article 44-7 Section 1 and Section 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. that bans circulation of “information with a content that commits an activity prohibited by the National Security Act” through an information and communications network and orders the Korea Communications Commission to reject, suspend or restrict handling of information falling under certain conditions.

Background of the Case

(1) The complainants are managers/operators of an online message board. The Commissioner General of the Korean National Police Agency urged the Korea Communications Commission to order the complainants to delete posts written by users of a website they manage and operate, arguing that the posts contain information with a content that commits an act prohibited by the National Security Act. In addition, the Korea Communications Commission requested a review of the content of the said posts to the Korea Communications Standards Commission, which in turn demanded removal of the posts to the complainants, stating that the messages qualify as unlawful information containing activities banned by the Act as they include praises of Kim Il-sung and Kim Jong-il, as well as propaganda and agitation of North Korea’s ideology and perception such as military-first politics.

(2) The complainants notwithstanding did not delete the stated posts, and the Korea Communications Commission ordered the complainants to remove the posts from the message board in accordance with Article 44-7 Section 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. In response, the

complainants lodged a suit seeking cancellation of the abovementioned action of the Commission ordering the refusal of handling information in the said posts, and with this case pending, filed a motion requesting a constitutional review of subparagraph 8 of Article 44-7 Section 1 and Section 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. with an ordinary court. However, the motion was denied, and the complainants filed a constitutional complaint in this case with the Constitutional Court.

Subject Matter of Review

The provision under constitutional review in this case is subparagraph 8 of Article 44-7 Section 1 and Section 3 (hereinafter jointly referred to as the “present provisions”) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (amended by Act No. 9119, Jun. 13, 2008, and hereinafter the “Information Communications Network Act”).

Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (amended by Act No. 9119, Jun. 13, 2008)

Article 44-7 (Prohibition on Circulation of Unlawful Information)

(1) No one may circulate information falling under any of the following subparagraphs through an information and communications network:

8. Information with a content that commits an activity prohibited by the National Security Act

(3) The Korea Communications Commission shall order a provider of information and communications services or a manager or an operator of an open message board to reject, suspend, or restrict handling of information under paragraph (1) 7 through 9, if the information falls under all the following subparagraphs:

Summary of the Decision

1. Void for Vagueness

The “information with a content that commits an activity prohibited by the National Security Act” refers to information committing acts that satisfy the elements of a crime set forth in Article 3 or 12 of the National Security Act or information that constitutes the means, target or the act itself that comprise the elements of a crime. The present provisions merely provide that information which contains the acts prohibited under the National Security Act should be prevented from circulation by simply considering the contents of the information, and do not address the issue of whether an inaction of not deleting posted information by the manager or operator violates the National Security Act. For this reason, it can be concluded that the present provisions are not so unclear as to hamper the predictability of offenders or enable arbitrary execution of administrative agencies, and are therefore not inconsistent with the principle of void for vagueness.

2. Freedom of Press

The telecommunications network, particularly the Internet, provides promptness, extensiveness and duplicability of a whole new level compared to the existing communication tools, and it is highly likely that ineffective regulation of such anti-state activities posing a threat to national safety as circulating “information with a content that commits an activity prohibited by the National Security Act” will rapidly spread the threat to national safety and people’s life and freedom. Therefore, the legislative purpose to ban circulation of such information has good reason.

The decision on whether an activity constitutes an anti-state activity that jeopardizes national safety is left to the legislature as the people’s

representative body, and the present provisions are not in excessive violation of the freedom of press given the following: 1) the information with a content that commits an activity prohibited by the National Security Act is “in itself an evidently illegal and socially harmful expression,” 2) the present provisions do not impose criminal punishment on those who wrote and circulated the information, but merely orders removal of the information through request for correction, refusal to handle certain information, etc., 3) service providers, etc. are held criminally accountable only when they fail to implement the request for correction by the Korea Communications Standards Commission and the order of the Korea Communications Commission, 4) the present provisions provide for the possibility of appeal and the opportunity of statement, and 5) there is possibility for judicial review for further examination.

3. Separation of Powers Principle

The order of the Korea Communications Commission to refuse, suspend or restrict handling of information is an administrative action that can be appealed by means of administrative litigation calling for judicial review, and the action itself is not a court judgment or a judicial action. This, therefore, is not against the principle of separation of powers that vests judicial power in courts.