Ban on Improper Communication on the InternetCase

(14-1 KCCR 616, 99Hun-Ma480, June 27, 2002)

Contents of the Decision

1. Whether Article 53(1) of the Telecommunications Business Act ban-ning communication which contain contents that could harm thepublic peace and order or social morals and good customs violatesthe rule of clarity.

2. Whether Article 53(1) of the Telecommunications Business Act vio-lates the rule against excessive restriction.

3. Whether Article 53(2) of the Telecommunications Business Act del-egating legislation regarding specific contents of communicationdeemed harmful to the public peace and order or social morals and good customs to the Presidential Decree is in violation of the ruleagainst blanket delegation.

4. Whether Article 53(3) of the Telecommunications Business Act al-lowing the Minister of Information and Communication to order atelecommunications business operator to refuse, suspend, or restrictcommunications that could harm the public peace and order or socialmorals and good customs and Article 16 of the Enforcement Decreeof Telecommunications Business Act which enumerate contents ofcommunication that could harm the public peace and order or socialmorals and good customs based on Article 53(2) of the Telecom- munications Business Act are unconstitutional.

Summary of the Decision

1. The rule of clarity is especially important in legislation that reg-ulates freedom of expression. When it is unclear what kind of expres-sion is being prohibited by such legislation, it is very likely that aperson would abstain from expressing himself lest he should be pun-ished for making such expression when he is not certain that what heis about to express is subject to regulation or not. Therefore, it isconstitutionally required that statutes regulating freedom of expressionshould be specific and clear about what expression is the subject ofregulation. Improper communication, defined as communication withcontents that could "harm the public peace and order or social morals and good customs", is too unclear and ambiguous. "The public peaceand order" is almost identical to "national security" and "the main-tenance of law and order" used in Article 37(2) of the Constitution, and"social morals and good customs" is indistinguishable from "public moralsor social ethics" stipulated in Article 21(4) of the Constitution, respec-tively. Such terms do not concretize the concepts used in the Con-stitution. Since "the public peace and order" and "social morals andgood customs" are such abstract concepts, different individuals wouldmake different judgments about whether a particular expression isharmful to "the public peace and order" or "social morals and goodcustoms" because of differences in individual value systems or ethicalviews. Furthermore, it would be difficult to objectively define theirmeaning through the ordinary interpretation of law by enforcementagencies.

2. Article 53 of the Telecommunications Business Act regulatescommunication that could "harm the public peace and order or socialmorals and good customs." Ambiguity, abstractness, and comprehen-siveness of the concept of improper communication inevitably results in the regulation of communication that should not be regulated, and leadsto the violation of the rule against excessive restriction. Article 53 ofthe Act could be used to regulate "indecent" expression which this Court has explicitly held to be protected under the Constitution, orthose provocative "media materials harmful to juveniles," communica-tion of which should not be prohibited when expressed or accessed

byadults because they are not obscene, citing that such expressions areagainst "social morals and good customs." It could be employed toregulate expressions regarding sexuality, marriage, or family system for harming "social morals and good customs," and it could be usedto regulate expressions regarding sensitive political or social issuesby labelling them as harmful to "the public peace and order." This would violate the essential features of freedom of expression.

3. Article 53(2) of the Telecommunications Business Act stipu-lates that "the objects, etc. of the communication, which are deemedharmful to the public peace and order or social morals and goodcustoms under paragraph (1), shall be determined by the Presidential Decree." This is in violation of the rule against blanket delegation.As seen above, the concepts of "the public peace and order" or "socialmorals and good customs" are very vague and ambiguous, and theprovision employing such terms does not provide citizens with ideas about the criteria or basic contents of regulation by the presidentialdecree. It also does not provide appropriate guidelines to the admin-istrative agency, and fails to control administrative regulation properly.Thus, the administrative agency could even regulate those expressionsthat should be protected under the Constitution according to its own judgment or preference about what the concepts of "the public peaceand order" or "social morals and good customs" should represent.This is evident in Article 16(ⅱ) and Article 16(ⅲ) of the EnforcementDecree of Telecommunications Business Act which employ terms asunclear and broad as those used in Article 53(1) of the Telecommu- nications Business Act.

4. Article 53(3) of the Telecommunications Business Act, whichstipulates refusal, suspension, or restriction of improper communica-tion, and Article 16 of the Enforcement Decree of Telecommunica-tions Business Act that provide definitions of improper communicationare unconstitutional because the legitimacy of Article 53(1) and Article53(2), which are clearly unconstitutional, is a precondition for theirconstitutionality.

Dissenting Opinion of Justices Ha Kyung-chull,

Kim Young-il, and Song In-jun

1. Concerning Article 53(1) and 53(2) of the

Telecommunications Business Act

According to the interpretive rule of preference for constitution-ality, which espouse the principle of maximum protection and leastrestriction of basic rights, "public peace and order" or "social morals and good customs" used as standards for delegation of legislation in the instant statutory provisions could be construed as the "minimum level of public order or social morals and good customs that all citi-zens should abide by and comply with." It cannot be argued that theabove terms do not function as effective guidelines for administra-tive regulation or that they inevitably result in excessive regulationof those expressions that should not be regulated, and they provide arelatively clear standard for the delegation of the rule-making power.Constitutionality of a statutory provision is a matter of creating limitswithin which a statutory provision could exist effectively. It does notrequire optimization of policy judgment. While the above statutoryprovisions may not be the best possible legislation, in terms of the ruleof clarity, it is constitutional as long as it is not impermissible underthe rule against blanket delegation because of the vagueness of theconcepts employed by these statutory provisons. In other words, the statutory provisions are constitutional as long as any citizen can pre-dict the basic features concerning the standard and scope of impropercommunication that would be regulated by the provisions of thepresidential decree based on delegation by the Act.

2. Concerning Article 16 of the Enforcement Decree

of theTelecommunications Business Act

The instant provision specifies and finalizes the contents of im-proper communication delegated by Article 53(2) of the Act. It is obvi-ous that "telecommunications with contents that aim at a criminal actor that abet a criminal act", as stipulated by Article 16(ⅰ) of theDecree, refers to communication either to commit or incite crimes pun-ishable under the criminal codes, and therefore, this is not against the rule of clarity. However, "telecommunications with contents that aimat committing anti-state activities" and "telecommunications with con-tents that impede the good customs and other social orders", as stip-ulated by Article 16(ⅱ) and Article 16(ⅲ), employ concepts that are tooabstract and unclear to prevent arbitrary judgments of law enforce- ment agencies. These provisions could be abused to infringe on the freedom of expression, and hence, they violate the rule of clarity.

3. Article 53(3) of the Telecommunications Business Act

According to this statutory provision, the Minister of Informationand Communication can not only order the deletion of a particularmessage identified as a improper communication but also close down a web site or suspend use of the particular user ID of the individualwho posted the improper writing. However, the instant statutory provi-sion does not impose any legal responsibility on such individuals. Itis clear that an independent order for deletion of a particular expres-sion would not be effective as the means to deal with improper com-munications when communications in cyberspace posts a problem.Closure of the web site operated by a particular internet service pro-vider (ISP) or suspension of use of a specific user ID are only con-fined to a particular service managed by the ISP. The user wouldnot be prevented from using online services offered by other service providers. In this light, the statutory provision does not violate theprinciple of proportionality, thereby encroaching on the freedom of ex-pression. According to the Administrative Procedures Act, users oftelecommunication services are considered to be interested parties.He is to be notified in advance when administrative agencies are ren-dering certain dispositions, and should be given an opportunity to sub-mit opinions regarding such disposition. Furthermore, he can partici-pate at formal or public hearings. Under these circumstances, it would not be against due process even if the instant statutory provision doesnot grant the right to make statements to a telecommunication serviceuser. Therefore, the statutory provision is not in violation of theprinciple of proportionality nor due process of law, and does notinfringe on the freedom of expression.

Provisions on Review

Telecommunications Business Act(wholly amended by ActNo. 4394 on August 10, 1991)

Article 53 (Regulation of Improper Communication)

(1) A person in use of telecommunications shall not make com-munications with contents that harm the public peace and order orsocial morals and good customs.

(2) The objects, etc. of the communication, which are deemedharmful to the public peace and order or social morals and good cus-toms under paragraph (1), shall be

determined by Presidential Decree.

(3) The Minister of Information and Communication may order atelecommunications business operator to refuse, suspends or restrictthe communication under paragraph (2).

Article 71 (Penal Provisions)

A person falling under any of the following subparagraphs shallbe punished by imprisonment for not more than two years or by afine not exceeding twenty million won: (Amended by Act No. 5220,December 30, 1996)

(ⅰ) - (ⅵ) [omitted]

(ⅶ) A person who fails to implement orders under Article53(3) or 55

(ⅷ) [omitted]

Enforcement Decree of Telecommunications BusinessAct(wholly amended by Presidential Decree No. 13558 on December31, 1991)

Article 16 (Improper Communication)

Telecommunications which are deemed to be harmful to the publicpeace and order or social morals and good customs under Article 53(2)of the Act shall be as follows:

(ⅰ) Telecommunications with contents that aim at a criminalact or of that abet a criminal act;

(ⅱ) Telecommunications with contents that aim at commit-ting the anti-state activities; and

(ⅲ) Telecommunications with contents that impede the good customs and other social orders.

Related Provisions

The Constitution

Articles 12(1), 21, 37(2)

Juvenile Protection Act

Article 10 (Criteria for Deliberation of Media Materials Harmful toJuveniles)

(1) In performing the deliberation in accordance with the provi-sions of Article 8, the Juvenile Protection Committee and each deliber-tive organ shall identify the media material in question as harmful to juveniles, in the case where the media materials in question fallunder any of the following subparagraphs:

(ⅰ) Provocative or obscene materials which may stimulatesexual desires in juveniles;

(ⅱ) Materials which may cause violence and brutality ofjuveniles or incite them to commit a crime;

(ⅲ) Materials which may stimulate or glorify the exerciseof all sorts of violence including rape and the abuse of drugs;

(ⅳ) Materials which are anti-social and unethical and that may hamper the cultivation of good character and a sense ofcivic consciousness in juveniles; and

(ⅴ) Materials which are feared to affect harmfully the mentaland physical health of juveniles.

(2) - (3) [omitted]

Related Precedents

1. 4 KCCR 255, 90Hun-Ba27, etc., April 28, 1992

10-1 KCCR 327, 95Hun-Ka16, April 30, 1998

2. 10-1 KCCR 327, 95Hun-Ka16, April 30, 1998

3. 3 KCCR 336, 91Hun-Ka4, July 8, 1991

11-1 KCCR 633, 98Hun-Ba70, May 27, 1999

Parties

Complainant

Kim Sun-wook

Counsel : 1. Legal Corporation Duksoo

Attorney-in-charge : Kim Ki-joong

2. Legal Corporation Hankyul

Attorney-in-charge : Cho Kwang-hee

Holding

1. Article 53 of the Telecommunications Business Act (whollyamended by Act No. 4394 on August 10, 1991) and Article 16 of theEnforcement Decree of Telecommunications Business Act (whollyamended by Presidential Decree No. 13558 on December 31, 1991) areunconstitutional.

2. The complaint filed against parts of Article 71(ⅶ) of the Tele-communications Business Act (Amended by Act No. 5220 on Decem-ber 30, 1996) concerning Article 53(3) of the same Act is dismissed.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

The complainant is a student at Hankook Aviation University, and has signed up to Nownuri, a comprehensive computer networkservice provided by Nowcom, Inc., under the user ID of "I-ui-je-ki (request for correction - Trans.)".

On June 15, 1999, the complainant posted a message entitled"Exchange of Gunfire in the West Sea, Sloppy Kim Dae-Jung!" onthe "urgent message board" of the internet community "Chanwoomul." On June 21, a system manager for Nownuri deleted this message fromthe board, and suspended the complainant's use of Nownuri service for one month according to an order of the Minister of Informationand Communication.

On August 11, 1999, the complainant filed a constitutional com-plaint against Article 53 and parts of Article 71(ⅶ) concerning Article53(3) of the Telecommunications Business Act as well as Article 16 of the Enforcement Decree of Telecommunications Business Act, al-leging that the provisions infringe on his freedom of expression as wellas freedom of science and arts, is against due process, and violatesthe principle against excessive restriction.

B. Subject Matter of Review

The subject matter of review is the constitutionality of Article 53("Minister of Communication" in Article 53(3) was changed to "Ministerof Information and Communication" in accordance with Act No. 5220on December 30, 1996) of the Telecommunications Business Act (whollyamended by Act No. 4394 on August 10, 1991), Article 71(ⅶ) (amendedby Act No. 5220 on December 30, 1996) of the same Act concerningArticle 53(3) of the same Act, and Article 16 of the EnforcementDecree of Telecommunications Business Act (wholly amended by Presi-dential Decree No. 13558 on December 31, 1991). The provisions are as follows:

Telecommunications Business Act (wholly amended by Act No.4394 on August 10, 1991)

Article 53 (Regulation of Improper Communication)

(1) A person in use of telecommunications shall not make the com- munication with contents that harm the public peace and order or socialmorals and good customs.

(2) The objects, etc. of the communication, which are deemedharmful to the public peace and order or social morals and good cus- toms under paragraph (1), shall be determined by Presidential Decree.

(3) The Minister of Information and Communication may order atelecommunications business operator to refuse, suspend, or restrictthe communication under paragraph (2).

Article 71 (Penal Provisions)

A person falling under any of the following subparagraphs shall bepunished by imprisonment for not more than two years or by a fine notexceeding twenty million won: (Amended by Act No. 5220, December30, 1996)

(ⅶ) A person who fails to implement orders under Article53(3) or 55

Enforcement Decree of Telecommunications Business Act (whollyamended by Presidential Decree No. 13558 on December 31, 1991)

Article 16 (Improper Communication)

Telecommunications which are deemed to be harmful to the public peace and order or social morals and good customs under Article 53(2)of the Act shall be as follows:

(ⅰ) Telecommunications with contents that aim at a criminalact or that abet a criminal act;

(ⅱ) Telecommunications with contents that aim at committinganti-state activities; and

(ⅲ) Telecommunications with contents that impede the good customs and other social orders.

2. Complainants' Arguments and Opinion of the Minister

of Information and Communication

A. Complainants' Arguments

(1) The statutory provision of the Article 53(1) and (2) of theTelecommunications Business Act only provides an abstract and com-prehensive criterion of communication that could "harm the public peaceand order or social morals and good customs" to regulate certain ex-pression, and this allows the arbitrary intervention of an administra-

tive agency in regulating expression. Article 16(3) of the Enforce-ment Decree of Telecommunications Business Act concretizes the aboveprovisions and also employs very abstract phrases such as "telecom-munications with contents that aim at committing the anti-state ac-tivities" and "telecommunications with the contents that impede thegood customs and other social orders."

A statutory provision restricting freedom of expression should bespecific and clear, and would be "void for vagueness" when ambigu- ous terms are used. The scope of application for "public peace andorder" or "social morals and good customs" is too wide and unclear,and use of such terms would abridge the freedom of expression. Itenables law enforcement agencies to conveniently and arbitrarily applythe law. Thus, it not only encroaches on the freedom of expressionbut also is against the rule of law, the principle of separation ofpowers, and the principle ofnulla poena sine lege.

(2) According to the above provisions, ordinary expression of opin-ion about changes in the national political system that does not callfor force or violence as well as any criticism against the government,could be regulated. It would also prohibit expression of "indecentexpression that may target adults" in addition to obscene expressionbanned by the Constitution and the Criminal Act, and thus, violatesthe essential aspect of the freedom of expression.

(3) Article 53(3) of the Telecommunications Business Act bestowson the Minister of Information and Communication the authority toorder an internet service provider to "refuse, suspend, or restrict" com- munication containing improper materials, and the internet service pro-vider who does not obey such order may be subject to criminal pun-ishment under Article 71(ⅶ) of the same Act. This provision prac-tically gives the Minister of Information and Communication anunrestricted power to block expression on the PC communication orInternet. The internet service provider, on the other hand, is not givenan opportunity to raise an objection or submit his opinion about suchorder by the Minister of Information and Communication under thecurrent law. Moreover, the law does not provide any legal procedurethrough which an individual whose freedom of expression is directlyrestricted can raise an objection or submit his opinion, and the lawdoes not provide any means of relief for the wrongful restriction of thefreedom of citizens. This is against due process of law, as stipu-lated by Article 12(1) of the Constitution.

(4) Even if it is necessary to regulate "improper communication",Article 53(3) of the Telecommunications Business Act is in violation of the principle against excessive restriction as stipulated by Article37(2) of the Constitution because it allows suspension or prohibition ofthe use of internet communication service by the user in addition to removal of the message containing problematic expression.

B. Opinion of the Minister of Information and

Communication

(1) The instant provisions themselves dose not restrict basic rightsof people without an administrative action, and therefore, the instantconstitutional complaint against the provisions are unjusticiable becauseit does not satisfy the directness requirement.

(2) The instant provisions employ "public peace and order" or"social morals and good customs" which are value judgements. Howeverthey delegate detailed rule-making to the enforcement decree to specifythe contents of these concepts. The meanings of "public peace andorder" and "social morals and good customs" used to define impropercommunication are not unclear when compared to "public morals andsocial ethics," "national security," and "the maintenance of law andorder" used in Article 21(4) and 37(2) of the Constitution. Currently, numerous acts employ these concepts in their provisions, and they arenot so unclear as to threaten legal stability by impeding

predictability.

(3) The instant provisions do not allow preliminary inspection orcensorship by the government, and it does not contain any means todirectly regulate individuals who provided the particular information incyberspace. Therefore, it does not infringe on the freedom of ex-pression.

(4) The Telecommunications Business Act is enacted to regulatebusiness practices of telecommunication service providers. Therefore,an individual user is not a directly interested party of an adminis-trative disposition based on the Act, and procedural rights for anindividual user need not be guaranteed. If procedural rights of usersand businesses to object to an administrative disposition ordering re-fusal, suspension, or restriction of communications were to be guar-anteed before it takes effect, such disposition would not function effec-tively as the means to regulate circulation of improper informationbecause of the accessibility and speed of the online media.

(5) The provisions pass the proportionality test requiring thelegitimacy of the end, appropriateness of the means, use of the least restrictive means, and balance of interests.

C. Opinion of the Director of the National Intelligence

Service

Opinions of the Director of the National Intelligence Service aremostly in agreement with the opinions of the Minister of Informationand Communication.

D. Opinion of the Juvenile Protection Committee

Article 53 of the Telecommunications Business Act is especiallyimportant for the maintenance of sound social morals and good cus- toms in our society, protection of teenagers, and the management of a wholesome and safe cyberspace in the current internet age. If theinstant provision is declared unconstitutional, the Information andCommunication Ethics Committee would not be able to perform even legitimate reviews for improper communication.

E. Opinion of the Commissioner General of the

National Police Agency

Premeditated and habitual activities to negate the free democratic regime, or to praise and propagate the North Korean regime, abusingthe characteristics of the Internet or PC communication, are illegalunder the present legal order, and it is necessary to regulate such ac-tivities to protect the currently adopted political system. Therefore,it is inevitable to impose a sanction on the activities of individualsresponsible for improper communication in the cyberspace.

3. Review of Legal Prerequisites

A. According to Article 68(1) of the Constitutional Court Act, aperson whose constitutionally protected basic right has been violatedby an exercise or non-exercise of governmental power can file aconstitutional complaint. Here, a person whose basic right has beenviolated refers to an individual whose basic right has been directly andpresently infringed upon by an exercise or non-exercise of govern-mental power, and it does not include a third party who only hasindirect, practical, or economic interest in the matter (4 KCCR 579,580, 92Hun-Ma175, September 4, 1992; 10-2 KCCR 461,

470-471, 97Hun-Ma372, August 27, 1998).

The Court will examinesua spontewhether the self-relatednessprerequisite has been satisfied for the complaint filed against parts ofArticle 71(ⅶ) of the Telecommunications Business Act concerningArticle 53(3) of the same Act.

Article 71(ⅶ) stipulates that "a person who fails to implement or-ders under Article 53(3)" should be punished by imprisonment for notmore than two years or by a fine not exceeding twenty million won. The provision makes it clear that the subject of punishment is not a user of telecommunication service, but a telecommunication business operator.

Therefore, this part of the complaint lacks self-relatedness, andis unjusticiable.

B. Let us examine the argument of the Minister of Information andCommunication that the instant constitutional complaint is unjustici- able because the instant statutory provisions do not directly infringe upon basic rights.

(1) In Case of Article 53(1), (2) of the Telecommunications Busi-ness Act and Article 16 of the Enforcement Decree of Telecommuni- cations Business Act

Above provisions are inseparable from each other. Collectively,they define the contents of improper communication and prohibit suchcommunication. They order users of telecommunications not to ex-change communication that may be harmful to the public peace andorder or social morals and good customs.

As such, users of telecommunications are prohibited from exchang-ing communication with improper contents not by an administrative disposition but by these provisions directly. Then, the directness of infringement of the basic rights is satisfied.

(2) In Case of Article 53(3) of the Telecommunications Business Act

In order for a statutory provision to be a subject for a consti-tutional complaint, the statutory provision should directly infringe uponthe basic rights of citizens by the statute itself, not by particular dis-position of an administrative agency. Existence of a specific admin- istrative action enforcing the provision does not always prohibit filingof a constitutional complaint against a statutory provision. Even if there was an administrative disposition to enforce the statutory pro-vision, an individual can file a constitutional complaint under the fol- lowing conditions as long as the administrative action is based on thestatutory provision: when there is no remedy process to relieve citizensfrom an infringement of their rights or interests by illegal disposi-tions of administrative agencies; or even if there exists a remedyprocess, when the prospect of relief of individual rights through suchprocess is dismal and when it only forces the individual to take an unnecessary detour (4 KCCR 194, 203, 90Hun-Ma82, April 14, 1992;9-2 KCCR 295, 303-304, 96Hun-Ma48, August 21, 1997)

Article 53(3) of the Telecommunications Business Act stipulatesthat the Minister of Information and Communication could order refusal,suspension, or restriction of communication with improper materials.Infringement of basic rights by this provision, then, would requireexistence of an administrative disposition in the form of an order by the Minister of Information and Communication.

A person whose freedom of expression is infringed upon by thisprovision is an individual user of a telecommunication service such asthe complainant. There is a possibility that such user would not beallowed to seek relief for the infringement of his rights through anadministrative litigation because he is a third party, not the party, asfar as the administrative disposition of the Minister of Information andCommunication is concerned. Therefore, the complainant could file aconstitutional complaint against this provision since the case qualifiesas an exception to the general rule.

(3) In conclusion, the argument of the Minister of Information andCommunication that the instant statutory provisions do not directlyinfringe upon basic rights is without

merit.

4. Review on Merits

A. Regulation of Improper Communication under the

Telecommunications Business Act

(1) Concept of Improper Communication and Its Regulation

According to Article 53(1) of the Telecommunications Business Act,"improper communication" refers to communication with contents harmful to the public peace and order or the social morals and good customs.

Article 53(2) of the same act delegates the detailed rule-makingrequired to determine communication harmful to the public peace andorder or the social morals and good customs to a presidential decree. Based on the delegation of legislation by this provision, Article 16 ofthe Enforcement Decree of Telecommunications Business Act definethe following three types of communication as improper: Telecommu-nications with contents that aim at a criminal act or that abet a crim-inal act; Telecommunications with contents that aim at committing the anti-state activities; and telecommunications with contents that impedethe good customs and other social orders.

Moreover, Article 53(3) of the Telecommunications Business Actstipulates that the Minister of Information and Communication can ordera telecommunications business operator to refuse, suspend, or restrictthe communication that could harm the public peace and order or socialmorals and good customs, and Article 71(ⅶ) of the Act stipulatespunishment of a person who fails to implement orders under Article 53(3) by imprisonment for not more than two years or by a fine not exceeding twenty million won in order to secure the effectiveness of the regulation.

(2) Reason for and Structure of Regulation of Improper

Communication

Interference with the contents of traditional means of communi-cation such as telegrams and telephone conversation had not been per-mitted, in principle, to protect the secrecy of communication. With theadvance of technology, telegrams and telephones not only functionas a means of private communication but also as a means to spread information to the mass, and it has become necessary to control the influence of such means of communication.

The order of the Minister of Information and Communication torefuse, suspend, or restrict the improper communication functions asan important means to regulate not only information transmittedthrough such traditional means of communication as wired or mobiletelephones but also information circulated through such online media as PC network or Internet.

This regulation system of improper communication has the fol-lowing structure and characteristics.

First, an administrative agency, the Minister of Information andCommunication, directly regulates the contents of expressions.

Second, the legal structure of regulation forms a triangular relationlinking the Minister of Information and Communication, telecommuni-cation service providers, and telecommunication service consumers.While only telecommunication service providers are subject to the ad- ministrative disposition of the Minister and penal clause, telecommu- nication service consumers are the ones whose freedom of expressionare

abridged by such regulation in fact. The subject of order andpunishment is distinguished from the entity whose freedom of expres-sion is restricted, and ultimately, threats of criminal punishment areused to secure the effectiveness of the regulation for the freedom ofexpression. Since a telecommunication service consumer is only athird party and not the party directly receiving the administrativeorder, it will be difficult for him to participate in an administrativeprocedure or institute an administrative litigation to seek relief forinfringement of his basic rights.

Third, the regulation takes the form ofex post factorestrictionof freedom of expression. However, considering the power relationbetween the users and the telecommunication service providers and thatbetween the telecommunication service providers and the Minister ofInformation and Communication, it is highly likely that the service providers would regulate the contents of communication of serviceconsumers through the user's agreement form even if the Minister hasnot given any specific order to refuse communication of particularmessages. The user, in turn, would have to look out for himself whenusing such service. In other words, this could lead to substantiallycontinuous self-censorship.

B. Restriction of Freedom of Expression

(1) Freedom of Expression and rule of clarity

Elements of regulation by the law must be clearly defined in orderto inform individuals being subject to the law what actions would beregulated under the law so that they can determine the course of theiraction accordingly, and this would prevent discriminatory or arbitraryinterpretation of law by providing an objective guideline to the law enforcement agency (4 KCCR 255, 268-269, 90Hun-Ba27, etc., April28, 1992). The rule of clarity is an expression of the democracy andthe rule of law, and it is required of all legislation restricting basicrights of citizens. The rule of clarity is an inherent part of the prin- ciple ofnulla poena sine lege,the principle of statutory taxation, andthe principle of the rule against blanket delegation.

The rule of clarity takes on an especially important meaning inlegislation restricting the freedom of expression. In a democratic so-ciety, freedom of expression is an essential tool to realize the people'ssovereignty. Ordinarily, the freedom of expression functions to en-courage exchange of diverse opinions, interpretations, and ideas amongindividuals and during the course, to verify validity of such expres- sions. However, restriction of freedom of expression by an unclearstatutory provision would bring about the chilling effect on constitu-tionally protected expression, and cause malfunctioning of this freedom. When it is unclear what kind of expression is being prohibited by such legislation, it is very likely that a person would abstain from express-ing himself lest he should be punished for making such expressionbecause he is not certain that what he is about to express is notsubject to regulation. Therefore, it is constitutionally required thatstatutes regulating freedom of expression should be specific and clearabout what expression would be subject to regulation (10-1 KCCR327, 342, 95Hun-Ka16, April 30, 1998).

(2) Freedom of Expression and Principle Against

Excessive Restriction

The principle against excessive restriction as stipulated by Article37(2) of the Constitution functions as a limit for all legislation re-stricting citizens' basic rights. Therefore, legislation restricting free- dom of expression should be in accordance with the principle. In the case of freedom of expression, the principle against excessive restric- tion is closely linked with the rule of clarity seen above. Restrictionof freedom

of expression through an unclear statutory provision wouldresult in regulation of even those expression that should be consti-tutionally protected, and this would violate the principle against ex- cessive restriction.

C. Constitutionality of Article 53(1) of the

Telecommunications Business Act

(1) Violation of rule of clarity

(A) Article 53(1) of the Telecommunications Business Act stipu-late that “a person in use of telecommunications shall not make thecommunication with contents harming the public peace and order orsocial morals and good customs.”

As seen above, in order to restrict the freedom of expression, therequirement of the rule of clarity becomes more demanding. Even morespecific and clear stipulation of expression that would be subject toregulation is especially required for legislation regulating the contentsof expressions like the instant provision.

(B) The concept of improper communication defined as that withcontents "harming the public peace and order or social morals andgood customs" is too unclear and ambiguous.

Article 37(2) of the Constitution stipulates that the freedoms andrights of citizens may be restricted by Act only when necessary fornational security, the maintenance of law and order or for publicwelfare, and Article 21(4) of the Constitution stipulates that speech or the press shall not undermine public morals and social ethics. Article53(1) of the Telecommunications Business Act defines improper commu- nication as "communication harming the public peace and order or socialmorals and good customs" and prohibits such communication. "Thepublic peace and order" is almost identical to "national security" and"the maintenance of law and order" used in Article 37(2) of the Con-stitution, and "social morals and good customs" is indistinguishablefrom "public morals or social ethics" stipulated in Article 21(4) of the Constitution, respectively. Such terms do not concretize the concepts used in the Constitution. The meaning of Article 53(3) of the Act isso unclear and abstract that it can be said that the article does notdefine the concept of "improper communication" but rather, is a dupli-cate of the Constitution stipulating the minimal condition of restric- tion of basic rights and the limits of freedom of speech and press.

Since "the public peace and order" and "the social morals and goodcustoms" are such abstract concepts, different individuals may makedifferent judgments about whether a particular expression is harmful to"the public peace and order" or "the social morals and good customs"because of differences in individuals' value systems or moral values. Furthermore, it would be difficult to objectively define their meaning through an ordinary interpretation of law by enforcement agencies.

While Article 53(2) of the same Act delegates the detailed rule-making about the specifics of improper communication to a presi-dential decree, it is unpredictable from the statute itself how the presi-dential decree would define the subject of regulation. In other words,it does not inform citizens what types of communication would be pro-hibited. People may have vague ideas about what "public peace andorder" and "social morals and good customs" may mean, but suchideas would be very subjective and would lead to different meanings for different individuals.

Of course, the necessity to employ indefinite concepts in legisla-tion cannot be denied altogether, and use of such concepts as "publicpeace and order" and "social morals and good customs" are not alwaysprohibited. Sometimes, use of such terms would be allowed in light ofthe legislative purpose, nature of legal relations subject to regulation, and contents of related statutory provisions. However, it violates therule of

clarity required for regulation of constitutionally protected free-dom of expression to comprehensively regulate contents of expres-sion using such vague notion as "harming public peace and order orsocial morals and good customs" without further details. This wouldbe so even if Article 53(2) of the Act delegates detailed rule-making about the subject of the regulation to a presidential decree.

The Minister of Information and Communication argues that thestatutory provisions do not violate the rule of clarity because theyemploy concepts similar to those used in the Constitution. However,it cannot be allowed to employ concepts used in the Constitution or abstract notions similar to those used in the Constitution to legislate individual statutes restricting people's liberties and rights.

(C) It would not be easy to legislate statutes that would be clearnot to bring about "a chilling effect" on the freedom of expression andat the same time effectively regulate what are clearly improper commu-nication. While there may be diverse and divergent subjects of regu-lation, the state should not give up its pursuit to uphold the rule ofclarity through individualization or categorization. If this is not pos-sible, the state must chooseunderregulatingrather than excessivelyrestricting of expression. There would be more to lose than to gain torestrict expression who is not proven to be detrimental to the public good. This is the basic nature of the freedom of expression.

(D) In conclusion, Article 53(1) of the Telecommunications Business Act violates the rule of clarity because it does not specify what kind of expression would be subject to regulation.

(2) Violation of Principle Against Excessive Restriction

(A) Necessity of such regulatory measures as deletion of mes-sages cannot be denied considering the rapid speed of online informa-tion dissemination. However, while restriction of circulation of expres-sion to protect juveniles could be allowed, generally, regulation orsuppression of online expression based on its contents should not beallowed unless it contains materials clearly illegal or obviously detri-mental to the public good (i.e. child pornography, divulgence of national secrets, or copyrights violation). Comprehensive regulation of contentsof expression based on vague doubt about harmfulness or possibileharmfulness is not in accordance with the freedom of expression.

Article 53 of the Telecommunications Business Act regulates com-munication that could "harm the public peace and order or social moralsand good customs." Ambiguity, abstractness, and comprehensiveness of the concept of improper communication inevitably results in regu-lation of communication that should not be regulated, and leads toviolation of the rule against excessive restriction.

(B) Article 53 of the Act could be used to regulate "indecent"expression which this Court has explicitly held to be protected under the Constitution (10-1 KCCR 327, 95Hun-Ka16, April 30, 1998), citing that these expressions are against "social morals and good customs".This Court has ruled that comprehensive prohibition of indecent expres- sion would violate the freedom of expression because "indecent" expres-sion, unlike "obscene" expression, has some social value. This Courtdefined "indecent" expression as a sexual expression not reaching thelevel of obscenity, expressions of not too much violence, rather detaileddescription of a murder scene, humor based on sexual matters, orsatire on distorted social morals and good customs or ethics that maycontain some vulgarity (10-1 KCCR 352-353, 95Hun-Ka16, April 30,1998). A lot of such indecent expressions may cumulatively be against"the public peace and order" or "social morals and good customs."

(C) Media materials harmful to juveniles refer to those materialswhose circulation and management are regulated for the purpose ofjuvenile protection. They include not

only such illegal expressions asobscene materials that are also prohibited for adults but also thoseexpressions which contain contents that may be unsuitable for teen- agers but not for adults.

Comprehensiveness of the concepts of "the public peace and order"or "social morals and good customs" may lead to regulation of thoseexpressions for which it would be enough to prohibit access byjuveniles, classifying them as improper communication. While it may be necessary to block teenagers from accessing provocative materialswhich may stimulate sexual desire of juveniles (refer to Article 10(1)(ⅰ)of the Juvenile Protection Act), prohibition of such expression or accessby adults is not required as long as the materials are not obscene.However, under the instant provisions, these expressions may be subjectto regulation because they may be classified as improper communi- cation since they contain contents harmful to the "social morals andgood customs".

(D) The instant statutory provision also blocks routes to presentand solve the social problems in a sound manner through free debatesand exchange of comments expressing diverse opinions. It could beemployed to regulate expressions regarding sexuality, marriage, or thefamily system (i.e. expressions regarding living together before marri- age, contractual marriage, or homosexuality) for harming "social moralsand good customs," and it could be used to regulate expressionsregarding sensitive political or social issues (i.e. expressions about op-position to conscription, conscientious objection to war, reunificationissues), by labelling them as harmful to "the public peace and order."This would inevitably have a chilling effect on the users of telecom-munication services, and open discussions would be impossible for somesocial issues. This would violate the essential features of the free-dom of expression.

Unlike a totalitarian society, a democratic society does not believethat a state can do no harm. Diversity and moral relativism form thefundamental principles of a democratic society. It would distort thefree market of ideas and the press if a state could freely wield itspower to decide what expression to allow and what to ban based onsuch relative and variable concepts as "public peace and order" or"social morals and good customs." Furthermore, the state could abusesuch power to achieve certain political or ideological goals, and anycriticism toward the head of the state would be regulated for beingharmful to "public peace and order." In a previous ruling, this Courthas said that the government should not be the primary organ to judgewhether certain expression or information is valuable or harmful andthat such judgment should be left to the self-correction mechanisminherent in a civil society, that is, competition of ideas and opinions (10-1 KCCR 327, 339-340, 95Hun-Ka16, April 30, 1998)

(E) Means of regulating improper communication has not changedmuch since its adoption through Article 6 of former Telecommunica-tions Act in 1961. This is not desirable in order to adapt to thechanging environment where the Internet and other online media havebecome more important.

One of the primary media being subject of regulation for impropercommunication is the Internet. Unlike the broadcast media, it is "themost participatory media", or "media encouraging expression of indi-viduals." Scarcity of radio wave frequencies, pervasiveness of broad-casts, and lack of control by recipients of information characterize thebroadcasting media. Because of such characteristics, public respon-sibility and the public interest aspect have been emphasized for use ofsuch media, and forceful regulatory measures that may not be appliedto other types media were justified. However, the Internet does not have equivalent characteristics: The barrier to entry is low; Mutualexchange of expression is possible; And active and premeditated actionby participants is necessary. The Internet has become the largest andmost powerful media, and regulation of expression on the Internet withemphasis on maintenance of order would be detrimental to the pro-motion of freedom of expression. Technological advance about themedia continue to widen the scope of freedom of expression and bringabout changes in the quality of such expression. In this light, new regulatory measures

within Constitutional limits should be developed to keep up with the continuously changing environment in this field.

(F) In conclusion, Article 53(1) of the Telecommunications Actrestricts freedom of expression too excessively and comprehensively, and therefore, violates the principle against excessive restriction.

D. Constitutionality of Article 53(2) of the

Telecommunications Business Act

(1) Article 53(2) of the Telecommunications Business Act stipu-lating that "the objects, etc. of the communication, which are deemedharmful to the public peace and order or social morals and goodcustoms under paragraph (1), shall be determined by the Presidential Decree" violates the rule against blanket delegation.

(2) The rule against blanket delegation is the rule of clarity appliedin cases of delegation of legislation to the administrative branch. Thephrase that "matters delegated to him [the President - Trans.] in aconcrete, limited scope by statute," as stipulated by Article 75 of theConstitution, means that the parental statute should specify the basiccontents and scope of the matters to be determined by the presi-dential decrees in sufficient details so that anyone could predict theircontent in outline (3 KCCR 336, 341, 91Hun-Ka4, July 8, 1991). Therequirement for specificity and the clarity of delegation varies with thetype and the nature of the subject matter. It becomes more ex-acting in the areas which directly abridges or is likely to infringe uponbasic rights than in the areas dealing public benefits. The specificity requirement should be especially demanding in the instant case wherefreedom of expression is restricted based on the contents of expres-sion and individuals would be made subject to criminal punishmentfor violation of regulatory measures.

However, concepts of "public peace and order" or "social morals andgood customs" are very abstract and unclear, and the provision em- ploying such terms does not provide citizens with even vague ideasabout the criteria or basic contents of regulation by presidential decrees.

(3) The instant statutory provision also does not provide appro-priate guidelines to the administrative agency, and thereby fails tocontrol administrative regulation properly. This would be possible whenthe statute clearly defines the scope of delegation. But "public peace and order" or "social morals and good customs" cannot limit the scopeof administrative regulation. Thus, the administrative agency couldeven regulate those expressions that should be protected under theConstitution according to its own judgment or preference about what the concepts of "the public peace and order" or "the social morals andgood customs" should represent.

This is evident in Article 16(ⅱ) and Article 16(ⅲ) of the Enforce-ment Decree of Telecommunications Business Act which has defined"communication that are deemed to be harmful to the public peace andthe order or the social morals and good customs" as "telecommunica-tions with contents that aim at committing the anti-state activi-ties" or "telecommunications with contents that impede the good cus-toms and other social orders." These terms to regulate communica-tion are as unclear and broad as those used in Article 53(1) of theTelecommunications Business Act.

(4) Article 53(2) of the Telecommunications Business Act delegatesthe detailed legislation specifying contents of improper communicationto the presidential decree, stipulating that "the objects... of the commu-nication which are deemed harmful to the public peace and order orthe social morals and good customs." This is against Article

37(2) ofthe Constitution requiring specification of the details of regulation by"Act" to decide when it is "necessary for national security, the main-tenance of law and order or for public welfare" or what communica-tion would be against "public morals or social ethics in Article 21(4)of the Constitution". The provision has wrongfully delegated whatshould have been legislated by the National Assembly to the execu-tive branch. In case of administrative actions restricting liberties andrights of citizens, it is not enough that essential features of suchrestriction are based on statutes legislated by the parliament: essen- tial features of such restriction need to be decided by the legislature itself (11-1 KCCR 633, 644, 98Hun-Ba70, May 27, 1999).

(5) In conclusion, Article 53(2) of the Telecommunications Busi- ness Act violates the rule against blanket delegation because it does not delegate the detailed rule-making in a specific and clear mannerand it is not possible to predict the contents and scope of impropercommunication to be regulated through a presidential decree.

E. Constitutionality of Article 53(3) of the

Telecommunications Business Act

We need not look further to conclude that Article 53(3) of theTelecommunications Business Act is unconstitutional since legitimacyof Article 53(1) and Article 53(2) of the Act, which are unconstitu-tional, is a precondition for its constitutionality. Article 53(3), which deals with refusal, suspension, or restriction of improper communica-tion, may be against due process since it does not provide telecom-munication service consumers, who are being made subject to theregulation under the Act, with the opportunity to express opinions.We would like to point out that it may be against the rule againstexcessive restriction if we were to interpret that refusal, suspension,or restriction of communication includes suspension of use of aparticular user ID or closure of the web site since it would make itimpossible for that user to circulate other legitimate informationthrough the service.

F. Constitutionality of Article 16 of the Enforcement

Decree of Telecommunications Business Act

Since Article 53(2) of the Telecommunications Business Act is unconstitutional as seen above, Article 16 of the Enforcement Decree of Telecommunications Business Act based on legitimacy of Article 53(2) is also unconstitutional.

5. Conclusion

In conclusion, Article 53 of the Telecommunications Business Actand Article 16 of the Enforcement Decree of Telecommunications Busi-ness Act infringe on the freedom of expression of the complainant,and hence, are unconstitutional. The complaint filed against parts ofArticle 71(ⅶ) of the Telecommunications Business Act concerning Article53(3) of the same Act is dismissed. This decision is pursuant tothe consensus of all justices except Justices Ha Kyung-chull, KimYoung-il, and Song In-jun who wrote a dissenting opinion.

6. Dissenting Opinion of Justices Ha Kyung-chull,

Kim Young-il, and Song In-joon

The majority of Justices concluded that Article 53(1) and 53(2) of the

Telecommunications Business Act are contrary to the rule against blanket delegation and the rule against excessive restriction, and thatArticle 53(3) of the Act and Article 16 of the Enforcement Decreewhich are based on legitimacy of Article 53(2) are unconstitutional.

We, however, disagree with the majority of Justices in their con- clusion that Article 53(1) and 53(2) are against the Constitution. Ac-cordingly, we have a different opinion regarding constitutionality ofArticle 53(3) of the Act and Article 16 of the Enforcement Decree.We are writing this dissenting opinion to clarify our disagreement.

A. About Article 53(1) and 53(2) of the

Telecommunications Business Act

(1) These statutes are legislation restricting freedom of expressionsince they define improper communication which would be subject toregulation. They do not prescribe contents of improper communicationdefinitely and completely in themselves, but delegate detailed rule-making about the scope of improper communication to a presidential decree.

All legislation abridging basic rights of citizens need to observe therule of clarity, one of the principal features of the principle of the ruleof law. As the majority of Justices observed, in case of delegation oflegislation, the rule against blanket delegation is one of the main issuesand the requirement of the rule of clarity is satisfied by decidingwhether the statute is in accordance with the rule against blanketdelegation.

(2) The majority opinion wrote that the requirement of the rule of clarity becomes more exacting for legislation regulating the freedom ofexpression because of the role and function that freedom of expres-sion plays in a democratic society and the chilling effect on expres- sion that an unclear statute engenders. In addition, the requirement for the specificity and clarity of delegation becomes more demanding in this area.

In order to decide whether the above provisions are against the ruleagainst blanket delegation, the following elements should be considered.

First, disadvantage suffered by the telecommunication service usersby the instant statutory provisions is refusal, suspension, or restric-tion of use of service by the telecommunication businesses; morespecifically, deletion of the particular expression, suspension of user ID, or closure of the web site. This should be distinguished from restric-tion of freedom of expression by threats of criminal punishment, be-cause requirements of the rule of clarity have been more exacting asit is more likely that the chilling effect on expression would be greaterif criminal punishment were to be employed as the means of regulation.

As such, if relatively light means of regulation is employed torestrict expression violating certain laws and if the degree of seri-ousness of such means of regulation is by no means equivalent tocriminal punishment, specially exacting standard of review concerningthe rule of clarity or the rule against blanket delegation need not beemployed just because the issue on review concerns the freedom ofexpression.

Second, a statute delegating detailed rule-making to presidentialdecrees or other lower forms of legislation need not be perfectly clearin itself. In other words, these statutes demand a degree of clarity that may not be as strict as that required by other statutes that do not delegate legislation to lower rules.

In the instant case, the provision directly applied to telecommuni-cations service users are not the provisions of the Act but provisionsof presidential decree. An expression would not be regulated for being harmful to "the public peace and order" or "the social morals and goodcustoms": it can only be regulated for violating the specific

provisionin the enforcement decree. Therefore, the concepts of "public peace andorder" or "social morals and good customs" only need to give specificguidelines for legislation of the enforcement decree. In the meanwhile,the provisions in the enforcement decree need to be more specific, andthey need to meet more exacting demands of the rule of clarity be-cause violation of these provisions would directly lead to administra-tive regulation.

(3) The majority of Justices conclude that "the public peace andorder" or "the social morals and good customs" are very abstract andsubjective concepts. They rule that these concepts do not provide ap-propriate guidelines for administrative regulation, and thus, the statu-tory provision employing these terms does not function as effectivelimits for administrative agency responsible for delegated legislation.Furthermore, the majority of Justices conclude that ambiguity and com-prehensiveness of these concepts would inevitably lead to regulation ofthose communication that should not be regulated, and lead to viola-tion of the rule against excessive restriction. They write that theinstant statutory provision could be used to regulate "indecent" ex-pression which this Court has explicitly held to be protected under theConstitution, or those provocative "media materials harmful to juveniles"whose expression or access by adults should not be prohibited alto- gether. Let us examine the validity of such arguments.

The interpretive rule of preference for constitutionality requires theCourt to interpret the statutes, which may seem unconstitutional at first glance, in a way that maintains their normative validity if thetext and the legislative intent of the statute provide any room for thedecision of constitutionality. In other words, this principle requires the Court to abstain from issuing the decision of unconstitutionalityneedlessly. The rule is based on the principle of the separation ofpowers and deference to the legislative power.

According to the interpretive rule of preference for constitution-ality which espouse the principle of maximum protection and leastrestriction of basic rights, "public peace and order" or "social moralsand good customs" used as standard for delegation of legislation inthe instant statutory provisions could be construed as the "minimum level of public order or social morals and good customs that all citi- zens should abide by and comply with."

The legislative intent of legislators when adopting the provisionstipulating "A person in use of telecommunications shall not make thecommunication with contents of harming the public peace and order orthe social morals and good customs" was not to regulate all expres-sions that have even the faintest hint of harming the public peace andorder or the social morals and good customs in the broad sense. Theprovision reflects the opinion of legislators that they cannot help butregulate communication that could threaten the minimum level of publicorder or social morals and good customs that our society requires whiletaking the importance of the freedom of expression into consideration.

While the concepts of the public peace and order or the socialmorals and good customs are indeed abstract, they are intermediaryconcepts adopted because it is impossible to regulate all kinds ofspecific and diverse forms of expression using a single criterion, andas such, they are not concepts that may not be accepted at all cost.

If the public peace and order or the social morals and good cus-toms are construed thus, it cannot be argued that above terms do notfunction as effective guidelines for administrative regulation or thatthey inevitably result in excessive regulation of those expressionsthat should not be regulated in the first place.

In other words, the above concepts only refer to those which "allcitizens should abide by and comply with." Provocative media mate-rials harmful to juveniles, or

materials that juveniles should be pre-vented from accessing while adults should be allowed to access, would not be regulated under the label of improper communication. Further-more, since they refer to "the minimum level of public order or socialmorals and good customs", "indecent" expression which this Court hasexplicitly held to be protected under the Constitution would not beregulated for being improper communication.

It is difficult to specify what is "the minimum level of public orderor social morals and good customs that all citizens should abide by and comply with" because this varies with changes in society. It would bevery difficult to decide whether expression supporting or urging opposi-tion to conscription, conscientious objection to war, or homosexualityis against such standard, and these are but some of the numerousboundary problems.

Legislators opted to delegate detailed rule-making to the adminis-tration for these reasons. The provisions of decrees, an output of ad-ministrative regulation, could be subject to review by either the Consti-tutional Court or ordinary courts. If the agencies were to legislate a provision to regulate expressions that are not proscribed as impropercommunication or employ unclear terms in legislating a provision, suchprovision would be either unconstitutional or would not be applied at all.

"The minimum level of public order or social morals and goodcustoms that all citizens should abide by and comply with" can onlybe concretized and made clear through specific administrative regula-tion and judgment of the Constitutional Court or ordinary courts re- garding the validity of such legislation.

The concepts of "public peace and order" or "social morals andgood customs" reviewed in light of the interpretive rule of preferencefor constitutionality render a relatively clear meaning as a standard fordelegation of legislation. They do provide specific guidelines to theagencies about the contents, purpose, and scope of delegation. There-fore, the provision does not engender the danger of excessive restriction.

(4) While concluding that above provisions violate the rule againstblanket delegation, the majority of Justices also write that the stateshould not give up its pursuit to uphold the rule of clarity throughindividualization or categorization even if there may be diverse anddivergent subjects of regulation.

While we conclude that the instant statutory provisions are consti-tutional, it does not mean that we believe that the instant statutoryprovisions are optimal choices for the legislative policy purpose. Con-stitutionality of a statutory provision will be decided on whether itcould effectively suggest legitimate limits. It does not require theoptimization of policy judgments.

It is not impossible to find a way to improve the clarity of ex-pression for the better protection of the freedom of expression evenif the instant statutory provisions are delegating legislation.

For example, the provision in the Enforcement Decree about im- proper communication could be included in the parental Act. Or the provision of the Act could enumerate examples of improper commu- nication and then delegate detailed legislation about specific contents of improper communication. Such method may be more desirable.

However, the requirements of clarity of delegated legislation wouldnot be totally satisfied even if the above method of legislation hadbeen adopted. It would be still unclear to decide what expressionshould be banned when the agencies faced problems on the boundary.

In other words, the rule of clarity that matters in delegation oflegislation is the degree of clarity. Existence of room for improve- ment does not automatically make a statute unconstitutional.

While the above statutory provisions may not be the best possiblelegislation in terms

of the rule of clarity, it is constitutional as long as it is not impermissible under the rule against blanket delegation becauseof vagueness of the concepts employed by these statutory provisons.In other words, the statutory provisions are constitutional as long as any citizen can predict the basic features about standard and scope of improper communication that would be regulated by the provisions ofpresidential decree based on delegation by the Act.

B. About Article 16 of the Enforcement Decree of the

Telecommunications Business Act

(1) The instant provision specifies and finalizes the contents ofimproper communication according to delegation by Article 53(2) of theAct. The central issue in deciding the constitutionality of the provi-sion is whether the provision violates the rule of clarity, therebyinfringing on the freedom of expression

(2) It is obvious that "telecommunications with contents that aimat a criminal act or that abet a criminal act", as stipulated byArticle 16(ⅰ) of the Act, refers to communication either to commitor incite crimes punishable under criminal codes, and therefore, thisis not against the rule of clarity.

(3) However, "telecommunications with contents that aim at com-mitting the anti-state activities" and "telecommunications with contentsthat impede the good customs and other social orders", as stipulatedby Article 16(ⅱ) and Article 16(ⅲ), employ concepts that are too ab-stract and unclear to prevent the arbitrary judgment of law enforce- ment agencies. These provisions could be abused to infringe on the freedom of expression, and hence, they violate the rule of clarity.

In case of "telecommunications with contents that aim at commit-ting the anti-state activities" stipulated in Article 16(ⅱ), "anti-stateactivities" are very abstract and unclear. Under provisions with suchvague notions, it would be up to the discretion of law enforcement agencies whether a certain activity should be regulated as an anti-state activity in a specific case, and it would be highly probable thatopinions criticizing the government would be regulated as anti-stateactivities. Thus, it is not difficult to predict that an infringement onthe freedom of expression by this provision will occur. Therefore,the criterion proffered by Article 16(ⅱ) is not complete in itself as a provision regulating the freedom of expression.

In case of "telecommunications with contents that impede the goodcustoms and other social orders" stipulated in Article 16(ⅲ), the con-cepts of "good customs and other social orders" is not any better thanthe concepts of "the public peace and order or the social morals andgood customs" used in the enabling statute in terms of clarity. Suchabstract criterion would not prevent the arbitrary judgment of law en-forcement agencies. While the use of criterion given by Article 16(ⅲ)would be allowed for the enabling statute, it is too abstract and un- clear to be a final provision regulating the freedom of expression.

Even when compared to Article 16(ⅰ), The criteria suggested byArticle 16(ⅱ) and 16(ⅲ) clearly lack specificity.

Article 13 and 15 of the Regulation of Information CommunicationEthics Committee Review as well as Article 17 of the Detailed Ruleson Information Communication Ethics Committee Review provide morespecific criteria related to Article 16(ⅱ) and Article 16(ⅲ) of theEnforcement Decree of Telecommunications Business Act. We wouldlike to point out that while the criteria suggested by the provisionsof the Enforcement Decree need not be as detailed as those of the Regulation or the Detailed Rules, they can infringe on the freedom of expression because they are too broad when compared with theprovisions of the Regulation and the Detailed rules.

In addition, Article 10 of the Juvenile Protection Act and Article 7of the Enforcement

Decree of Juvenile Protection Act providing for thecriteria for deliberation of media materials harmful to juveniles providemore specific criteria from the enabling clause than criteria offeredby Article 16(ⅱ) and Article 16(ⅲ) of the Enforcement Decree of Tele-communications Business Act. This again leads to the conclusion thatArticle 16(ⅱ) and Article 16(ⅲ) of the Enforcement Decree do notsatisfy the requirements of the rule of clarity.

(4) Therefore, while Article 16(ⅰ) of the Enforcement Decree ofTelecommunications Business Act does not violate the rule of clarity,Article 16(ⅱ) and Article 16(ⅲ) of the Enforcement Decree are againstthe rule of clarity, theryby infringing on the freedom of expression.

C. Article 53(3) of the Telecommunications Business Act

(1) The instant statutory provision enables the Minister of Infor-mation and Communication to order a telecommunications businessoperator to refuse, suspend, or restrict improper communication, there-by restricting the freedom of expression of the complainant.

Freedom of expression, like all other rights and liberties, could be restricted by the Act when necessary for national security, the main-tenance of law and order, or for public welfare. In such case, theprinciple against excessive restriction, the guiding principle of legis-lation restricting individual rights and liberties stipulated by Article37(2) of the Constitution must be satisfied. Also, when the Ministerissues an order for refusal, suspension, or restriction of improper com-munication, whether the requirements of due process of law such asguaranteeing of an opportunity to submit opinions regarding such orderfor the telecommunications service user is observed carries some sig-nificance. Next let us examine these issues.

(2) Rule Against Excessive Restriction

(A) First, the legitimacy of legislative purpose to prevent ill effectsof online media and encourage sound development of telecommunica-tions service through regulation of improper communication is accepted.The means of regulation chosen to achieve such purpose, namely, theissuance of an order by the Minister of Information and Communica-tion for refusal, suspension, or restriction of improper communicationis one of the effective and appropriate methods.

(B) Moreover, we believe that the issuance of an order by theMinister of Information and Communication for refusal, suspension, orrestriction of improper communication satisfies the requirements of thenecessity of the means or the doctrine of the least restrictive means and the balance of interest for the following reasons.

First, under the current system of regulation, no legal duty isdirectly imposed on individual telecommunication service users. In caseof telecommunication service providers, they are first ordered to refuse,suspend, or restrict improper communication, and they will be subjectto criminal punishment (Article 71(ⅶ) of the Telecommunications Busi-ness Act) only when they do not follow such order. In light of suchfacts, it would be hard to conclude that such regulation is excessivein terms of the necessity of the means or the doctrine of the leastrestrictive means.

Second, according to the instant statutory provision, the Ministerof Information and Communication can not only order deletion of aparticular message identified as improper communication but also closedown the host of online bulletin boards or suspend use of the parti-cular user ID of the individual who posted the improper writing. It isclear that an independent order for deletion of a particular expression would not be effective as the means to deal with improper communi-cation when communication in cyberspace posts a problem.

The individual could repeatedly post an identical or similar messagewith improper

contents after the original message has been deleted.This occurs frequently in real life. In such case, there is not aneffective means to stop such individual if closure of the web site orsuspension of the user ID is not allowed. Therefore, permission ofuse of the above methods of regulation is unavoidable, and thus, not excessive.

Third, closure of the web site operated by a particular internetservice provider (ISP) or suspension of use of a specific user ID are only confined to a particular service managed by the ISP. The userwould not be prevented from using online services offered by otherservice providers. Therefore, the private interest being neglected isnot greater than the public interest protected by the above methodsof regulation.

(C) In conclusion, the instant statutory provision granting theMinister of Information and Communication the authority to order atelecommunications business operator to refuse, suspend, or restrictimproper communication satisfy the requirements of legitimacy of theend, the appropriateness of the means, the necessity of the means orthe doctrine of the least restrictive means and the balance of con-flicting interests. Therefore, the statutory provision does not infringeon freedom of expression in violation of the principle against exces- sive restriction.

(3) Due Process of Law

(A) Article 21(1) of the Administrative Procedures Act stipulatesthat the administrative agency should notify the parties of the con-tents of the disposition, the legal basis, and other necessary informa- tion when it renders an administrative disposition imposing duties onor restricting the rights or interests of the parties. Article 22(3) ofthe same Act stipulates that the parties should be given an oppor-tunity to submit opinions regarding the administrative disposition whenan administrative agency issues such administrative disposition unlessthere was a formal hearing or a public hearing.

According to Article 2(ⅳ) of the Administrative Procedure Act, theterm "parties" is defined as the direct counter parties of the dispo-sition of administrative agencies, or interested parties who are re-quested to participate in the administrative procedure by administra- tive agenciesex officioor upon personal request.

A user of telecommunication services can be viewed as interested parties to the order to refuse, suspend, or restrict improper communi- cation based on Article 53(3) of the Telecommunications Business Act under Article 2(ⅳ) of the Administrative Procedures Act based on the decision of administrative agencyex officioor upon personal request.He is thus granted the opportunity to be notified of the administra-tive disposition in advance and to submit opinions about the disposition.

According to Article 22(1) and 22(2) of the Administrative Proce-dures Act, an administrative agency could host a formal or publichearing even when other Acts and their subordinate statutes do notprovide provisions concerning a formal or public hearing, if the admin-istrative agency decides that it is necessary. In such case, the tele- communication services consumer could participate in a hearing as aninterested party, submit arguments, present documentary evidence, andaddress questions to the relevant witness and expert witness (Article31(2) of the same Act); request administrative agencies for the inspec- tion or duplication of the documents regarding the investigation resultsof the cases, and other documents related to the dispositions con-cerned, (Article 37 of the same Act); and be notified of the hearing when the administrative agency has decided to hold a public hearing (Article 38 of the same Act)

(B) Article 21(4) of the Administrative Procedures Act stipulatesthat the administrative agency may choose not to notify the parties ofits administrative disposition in advance when "an urgent dispositionis necessary for the safety and welfare of the general public" or whenother exceptional conditions are met. Furthermore, Article 22(4)stipulates that the administrative agency need not conduct

hearingof opinions when conditions listed in Article 21(4) are met, or whenparties have clearly indicated the intent to renounce the opportunityto submit their opinions.

In other words, the Administrative Procedures Act provides excep-tional conditions such as "when an urgent disposition is necessaryfor the safety and welfare of the general public," under which theagency may omit advance notification of an administrative dispositionor hearing of opinions (submission of opinions·formal hearing·publichearing).

In the information communication review process, most parties are not given the opportunity to submit opinions because of the rapidity ofinformation proliferation: It wold be impossible to attain effectivenessof regulation if every telecommunications service consumer were givena chance to submit his opinion.

(C) As seen above, even if Article 53(3) of the Telecommunica-tions Business Act does not provide a telecommunication service userwith an opportunity to submit his opinion when an administrativeagency issues a disposition, the user, as an interested party, would be notified in advance when an administrative agency is about to rendera disposition, would be given an opportunity to submit opinions re-garding such disposition, and participate at a formal or public hearingunder the Administrative Procedures Act.

While most parties in the information communication review pro-cess are not given the opportunity to submit opinions regarding anadministrative disposition, this is not because of lack of a statutory provision providing the right to submit opinion but to secure effec- tiveness of regulation when proliferation occurs so rapidly. This isalso based on the Administrative Procedure Act.

Since the telecommunication services user would be given proce-dural safeguards through the Administrative Procedures Act, the statu-tory provision cannot be said to violate due process of law becauseit does not explicitly grant the right to submit opinions against anadministrative disposition.

(4) Therefore, the statutory provision is not in violation of theprinciple of proportionality nor due process of law, and does notinfringe on the freedom of expression.

D. In conclusion, we agree with the majority of Justices in their conclusion to dismiss parts of the provisions on review. But unlikethe majority, we think that Article 53 of the Telecommunications Busi-ness Act and Article 16(ⅰ) of the Enforcement Decree of Telecom-munications Business Act are constitutional, and thus the complainagainst these provisions should be rejected. Furthermore, we believe that Article 16(ⅱ) and 16(ⅲ) of the Enforcement Decree of Telecom-munications Business Act are unconstitutional and infringe on freedomof expression because they are against the rule of clarity.

Justices Yun Young-chul (Presiding Justice), Han Dae-hyun,Ha Kyung-chull, Kim Young-il (Assigned Justice), Kwon Seong,Kim Hyo-jong, Kim Kyoung-il, Song In-jun, and Choo Sun-hoe

Aftermath of the Case

After the decision, the National Assembly amended the Telecom-munications Business Act through Act No. 6822 on December 26, 2002,and changed the term improper communication to illegal communi-cation. The amended provisions specify what types of communicationwould be prohibited under the Act, and give an individual subject to the regulatory disposition an opportunity to submit his opinion. Theacademic society whole-heartedly welcomed this decision, and the Korean Society for

Media Law, Ethics and Policy Research desig-nated the decision as the "Decision of the Year Regarding Media Law."