Internet Filtering for Protectionof Minors

(16-1 KCCR 114, 2001Hun-Ma894, January 29, 2004)

Held, the relevant provisions of the Act on Promotion of Information and Communications Network Utilization and Information Protection and its enforcement decree and of the relevant public notice of the Ministry of Information and Communication, which enable Internet filtering by obligating to mark the Internet sites harmful to minors with the 'electronic

indication,' are not in violation of the Constitution.

Background of the Case

The Juvenile Protection Act provides that the Juvenile Protection Committee, and the Information and Communications Ethics Committee in the case of Internet-related media content, shall review and determine the media content that is harmful to minors(hereinafter referred to as the 'media content harmful to minors'), and prohibits the selling, renting, distributing, or offering for viewing and listening, showing, or usage, to the minors, of items categorized as media content harmful to minors, by criminally punishing the violation of such prohibition(hereinafter referred to in the entirety as the "system concerning media content harmful to minors"). On the continuum of this system, the above statute and its enforcement decree and the public notice at issue in this case prepared a technological protection mechanism, by taking the characteristics of the Internet into account, to protect minors from the media content harmful to minors on the Internet. That is, in case an Internet site, directory or page is determined to be a media content harmful to minors, the provider of such media content is obligated thereunder to mark a specific indication by electronic method under the PICS or the Platform for Internet Content Selection, in order for the software filtering the media content harmful for minors to detect this. When such an 'electronic indication' is marked, should individual information users install the relevant filtering software on their computers, such media content harmful to minors is automatically blocked and does not appear on the screen. On the other hand, if the relevant software is not installed, there is no screening effect, and, even when the software is installed, blocking may be disabled by manipulation. Therefore, should the 'electronic indication' be marked pursuant to the legal provisions at issue in this case, the Internet filtering in the limited

sense as indicated above becomes possible.

The complainant in this case opened and operated a website concerning homosexuality, and the Information and Communications Ethics Committee determined this site as the media content harmful to minors pursuant to the Juvenile Protection Act. However, the complainant did not mark the 'electronic indication,' and the Information and Communications Ethics Committee notified that the complainant should mark the 'electronic indication' and that a criminal sanction might be imposed for the failure to perform this

obligation.

The complainant thereupon filed the constitutional complaint in this case, claiming that the freedom of expression of the complainant was violated by the above legal provisions enabling

Internet filtering.

Summary of the Decision

The Constitutional Court has held, in the unanimous opinion of all justices, that the provisions at issue in this case are constitutional. The summary of the grounds for the Court's decision

is stated in the following paragraphs.

1. Even such information on the Internet or media contents that are determined to be media contents harmful to minors take the form of either the expression or the distribution of opinions which function to form the opinion. Therefore, they are the media of expression of opinions that are protected by the freedom of speech and press. The above legal provisions require the provider of the information on the Internet that is determined to be the media content harmful to minors to mark the 'electronic indication' thereby restricting the freedom of expression. Therefore, the issue is whether such restriction violates the principle of prohibition against excessive restrictions under Section 2 of Article 37 of the

Constitution.

2. Minors are in a state of immaturity both mentally and physically, thus must be protected until they grow to be responsible individuals of personality within the social community. Due to the characteristics of the Internet, however, the information harmful to the minors is indiscriminately posted and distributed for commercial purposes, and the anonymity of the Internet exacerbates the possibility that such information will be directly delivered to the minors without filtering. Therefore, it is justifiable that the legislators have adopted, for the protection of minors against the inundating harmful information on the Internet, the method that

uniformly blocks minors from harmful information containing obscenity or violence in case the blocking software is installed, by obligating to mark a specific 'electronic indication,' as it is for the

public welfare of the protection of minors.

3. Should the 'electronic indication' be marked, installing the pertinent blocking software has the effect of blocking the Internet site or page categorized as the media content harmful to minors. Therefore, this is a means that is effective and appropriate for achieving the legislative purpose of protecting minors from the

harmful media content on the Internet.

4. As the harmful information on the Internet has strong anonymity and diffusion, the indication of "not permissible for anyone under the age of nineteen(19)" marked off-line and not on-line, in general, has a meager impact of blocking such information from minors. In addition, with respect to the media content on the Internet, unlike other general tangible media items such as audio or video discs, there exists a way through which the purpose of protecting minors may be achieved more effectively by way of technological and electronic manipulation. Other than the 'electronic indication,' there may be other methods as well of blocking the access to the harmful media content on the Internet by minors, such as the verification of the name and resident registration number, credit card information, or electronic signature system through the public authentication certificate. However, the resident registration number verification method accompanies the concern for the theft of identity information of others, the usage of credit card information risks a readily exposure of the credit card information while an adult without a credit card may not use this, and the electronic signature by way of the public authentication certificate is yet to be available for a wide usage. Furthermore, the burden of the cost for such alternative methods will mostly be borne by the Internet site operators. Then, it may hardly be deemed that the above alternative methods other than the 'electronic indication' method are less restrictive methods that limit the freedom of expression of the information providers to a lesser

degree.

In the Internet environment where technology is developing at such a high speed, there is an inappropriate aspect in the government designating a particular technology standard such as the PICS and a particular meta-tag. However, presently, it may not be deemed that there clearly exists a means to achieve the legislative

purpose in other alternative methods.

5. Considering that the obligation of the 'electronic indication' merely determines a technological method of blocking harmful media

content from minors as anex post factomeasure rather than controlling the substance or content of the applicable information, and that its effect lies only when the parents or adults install the blocking software while the software, even after installation, may discretionarily be removed, the above legal provisions have not digressed from the balance between the public interest in pursuit (i.e., protecting minors from harmful information on the Internet) and the private interest thereby under restriction, in terms of the

effect and the substance of the restriction of the fundamental right.