35. Criminal Penalty on False Communication

[22-2(B) KCCR 684, 2008Hun-Ba157, 2009Hun-Ba88(Consolidated), December 28, 2010]

This case is about the decision of unconstitutionality by 7 (unconstitutional) to 2(constitutional) on the Article 47(1) of the Electrical Telecommunication Act ("instant provision") which penalizes anybody who makes a false communication through the electric telecommunications facilities and equipment with the intent to harm the public interest.

Background of the Case

The petitioner in 2008Hun-Ba15 was charged with the violation of "the Electric Telecommunication Act, Article 47(1)" by posting untrue information on an internet site that a woman was raped by police during the protest while the petitioner in 2009Hun-Ba88 was charged with the same offense by posting the untrue statements on an internet site that currency exchange was halted because the Korean foreign reserve was drained and also that the Korean government ordered seven major Korean banks and other major export companies to halt dollar buying. Petitioners filed the motions for constitutional review of the Instant Provision. After trial courts denied their petitions, petitioners directly filed motions to review the constitutionality of the Instant Provision with the Constitutional Court of Korea.

Provisions at Issue

The Electrical Telecommunication Act (amended into the Act 5291 on December 30, 1996)

The Article 47(penalty provision) (1):

"A person who has publicly made a false communication through the electric telecommunication facilities and equipment with the intent to harm the public interest shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won."

Summary of the Decision

1. Summary of Majority Opinion

The instant provision is a restrictive legislation on the freedom of expression with criminal penalties and, therefore, it is subject to the rule of clarity on a strict level. While the instant provision prohibits false communication with 'the intent to harm public interest,' the "public interest" used here is such unclear and abstract that it seems to be the rewriting of the constitutional provisions which prescribes minimum conditions to restrict basic rights and the limitation of the Constitution. Since the Instant Provision does not notify ordinary citizens of what purpose of communication, among 'permitted communications,' is prohibited, it is unconstitutional for violating the rule of clarity stemming from the freedom of expression and the rule of clarity embedded in the principle ofnulla poena sine lege.

2. The concurring opinion of four Justices on the issue of violation of the rule of clarity with respect to 'false communication.'

The legislative intent of the instant provision is to regulate 'communication with false pretense.' Yet, the issue on the meaning of 'false communication' arises as it has recently been applied to the case involving communication with false information despite the instant provision has not been quoted for forty years. The instant provision opens a door to the broad interpretation and the application of a law because it fails to materialize the legislative intent in its plain language and in the legal structure with other related provisions. Therefore, the instant provision does not satisfy the rule of clarity in the principle ofnulla poena sine legebecause of its latent ambiguity not only in 'intent to harm the public interest' but also in 'false communication.'

3. The concurring opinion of five Justices on the issue of violation of the rule against excessive restriction

We cannot exclude a certain expression from the protection of the freedom of expression because it contains certain contents. Therefore, "expression of false communication" remains within the scope of protection of the freedom of speech and the press under the Article 21 of the Constitution although it could be restricted under the Article 37(2) of the Constitution. Yet, the instant provision, by purporting to regulate false communication with the 'intent to harm public interest,' violates the rule against excessive restriction because it, due to its ambiguous, abstract and overbroad nature, ends up regulating the expressions which should not be regulated. Therefore, the instant provision infringes the freedom of expression by violating the rule against excessive restriction and thus is against the Constitution.

4. The dissenting opinion of two Justices

(1)The 'public interest' is 'the interest of all or the majority of citizens who live in Korea and the interest of a state composed of those citizens,' while 'intent to harm' the public interest includes the case where the major intent of an act is for harming the public interest. "False communication" is about 'the fact of which the truthfulness can be verified objectively' and thus implies both the communication with false contents and the communication with false pretense. Therefore, its meaning is clear and not against the rule of clarity in the principle ofnulla poena sine lege.

(2)The legislative goal of the instant provision is justifiable as it contributes to the development of democracy by preventing the disturbance of public morality and social ethics and the disorder of the public order. The stricter restriction should apply to the communication with palpably false information because electric telecommunication has the features such as: 1) the severe ramification from the dissemination of false information, 2) difficulty to correct false information by communication users in a swift manner and; 3) the high social expense for lengthy discussion surrounding false information. Further, the instant provision punishes only when an act of transmission of false information through electric telecommunication

facility is committed with the intent to 'harm the public interest.' Therefore, the instant provision does not violate the rule of the least restrictive means. Finally, as the restricted basic rights is the freedom to disseminate palpably false information both from an objective and a subjective perspective with the intent to harm the public interest, there is no gross imbalance between the protected public interest by the instant provision and the restricted basic right. Therefore, the instant provision is not against the freedom of expression by violating the rule against excessive restriction.