The Ban on Use of Communication Networks for Criminal Purposes

[24-1(A) KCCR 228, 2008Hun‐Ma500, February 23, 2012]

In this case, the Constitutional Court held that Article 44‐7 Section1 Item 9 of the Act on Promotion of Information and CommunicationsNetwork Utilization and Information Protection, which prohibits circulation of information whose content is intended to commit, solicits or aids a crime did not violate the principle of clarity or the principle against excessive restriction and thus is constitutional.

Background of the Case

(1)Around June, 2008, the complainants made a list of names and telephone numbers of the companies that had published their advertisements on a newspaper, ○○‐Ilbo. They then posted the list on online bulletin boards and cafes created on a web portal operated by ○○‐Communications Corp. and put up a posting that encourages people to call and ask the companies on the list to stop advertising on the newspaper.

(2)○○‐Communications Corp. sought for the review of the Respondent, Korea Communications Standards Commission, on the postings of June 2, 2008 and June 20, 2008. On July 1, 2008, the Respondent concluded that some postings violated Article 7 Section 4 and Article 8 Section 4 of the Review Standards of the Information and Communication Ethics Committee. The Respondent decided to make a request for correction demanding ○○‐Communications Corp.to delete the relevant information (hereinafter "the correction requirement"). The decision was notified to ○○‐Communications Corp.

(3)Upon the Respondent's decision,○○‐Communications Corp. deletedthe postings, and the complainants subsequently brought this

constitutional complaint seeking cancellation of the correction request, as well as constitutional review of Article 44‐7 Section 1 Item 9 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Article 21 Section 4 of the Act on the Establishment and Operation of Korea Communications Commission, Article 8 of the Enforcement Decree of the same Act, and Article 7 and Article 8 Section 4 of the Review Standards of the Information and Communication Ethics Committee. The complainants argued that the correction requirement in this case infringes on their freedom of expression.

(4)The Constitutional Court decided to review the complaint as to Article 44‐7 Section 1 Item 9 of the Act on Promotion of Information and Communications Network Utilization and Information Protection but to reject review of the other complaints for they are not justiciable.

Provision at Issue

Among the provisions at issue, one that meets the justiciability requirement is Article 44‐7 Section 1 Item 9 of the Act on Promotion of Information and Communications Network Utilization and Information Protection (amended by Act No. 8289 on January 26, 2007 and amended by Act No. 9119 on June 13, 2008 but before taking into effect on December 14, 2008) (hereinafter "Instant Provision of the Information and Communications Act").

Act on Promotion of Information and Communications Network Utilization and Information Protection (amended by Act No. 8289 on January 26, 2007 and before amended by Act No. 9119 on December 14, 2008)

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

(1)No one may circulate information falling under any of the

following subparagraphs through an information and communications network.

9.Other information that is intended to commit, solicits or aids a crime.

Summary of the Decision

1. Court Opinion

The summary of the Court opinion on the Instant Provision of the Information and Communications Act is as follows.

A. The principle of clarity

Considering the meaning in general usage of the terms, "crime," "solicit" and "aid," the phrase "information that is intended to commit a crime" should mean information circulated for the purpose of committing a crime, whose content self‐evidently shows the criminal purpose. Likewise, "information that solicits or aids a crime" can be interpreted as information whose content encourages or helps another person to commit a crime.

Here, because there is no particular limiting language as to the scope of "crime," it should cover all crimes that are subject to criminal punishment, regardless of severity of the statutory penalties. Additionally, because online media allow speedy and broad transmission of information to indiscriminate people, the potential danger of using online media in committing or facilitating crimes is significant. The Instant Provision of the Information and Communications Act intends to prevent such danger at an earlier stage, and thus does not require that the person who posted the concerned information, or the principal offender who was solicited or aided, has already made any action to commit the crime.

In this regard, we cannot conclude that the Instant Provision of the

Information and Communications Act is vague to the degree that it harms the predictability of law or enables arbitrary implementation of administrative agencies.

B. The principle against excessive restriction

Electronic communication networks, particularly the Internet, have characteristics qualitatively different from other methods of communication in terms of their speed, transferability, and duplicability. These characteristics make crimes more likely to occur and enable swift spread of the harms when "information that is intended to commit, solicits, or aids a crime" is circulated. The Instant Provision of the Information and Communications Act intends to prevent such ill‐effects and create an environment for healthy use of communication network by prohibiting circulation of aforementioned information. This legislative purpose is legitimate. The means adopted here include having the Respondent, a professional organization, review whether a material constitutes prohibited information and blocking circulation of such prohibited information in advance through theRespondent's correction request or the Korea Communications Commission'sorder of rejection, suspension or restriction. These are proper means to achieve the legislative purpose.

The decision whether an act constitutes a crime as an anti‐social activity is entrusted to the legislature. Because information that is intended to commit, solicits or aids a crime, as defined by the legislature, constitutes in and of itself "an expression that is clearly illegal and harmful to the society," it cannot be an excessive restriction on freedom of expression. Even when a person circulates prohibited information, the penalty is not criminal but a mere request of correction or an order of rejection, suspension or restriction of the concerned information, by which to preclude access to or remove the information, or limit the use of the relevant website. In this regard, the means satisfy the requirements of least restriction and of balance

among legal interests.

Therefore, the Instant Provision of the Information and CommunicationsAct does not violate the principle of clarity and the principle against excessive restriction.

2. Dissenting Opinion by Three Justices

A. Violation of the principle of clarity

The Instant Provision of the Information and Communications Act refers to "information that is intended to commit a crime;" that is, it regulates only subjective intent of the person who posts the information. It neither limits nor provides any guidance on the content of the regulated information. As a result, the scope of regulated information under the Instant Provision of the Information and Communications Act can be limitless. Further, an act of posting that falls short of satisfying an element of a crime but is merely preparatory or at the phase of plotting a crime, can also be subject to the regulation. Consequently, the coverage of the regulation under theprovision and as applied by the administrative agencies is unpredictable.

As the majority opinion indicates, the Instant Provision of the Information and Communications Act places no limit on the types of "crime" subject to the regulation. The nature of online media where information can be quickly circulated to indiscriminate people inevitably requires that its regulatory system may be invoked by the content of the information only, regardless of existence of the principal and his or her undertaking of crime. In this situation, setting an objective limitation of "information that solicits or aids a crime" is difficult.

B. Violation of the principle against excessive restriction

The Instant Provision of the Information and Communications Act regulates "information that is intended to commit, solicits or aides a

crime" by generally treating it as illegal information. The vagueness, abstractness, and broadness of the concept of illegal information allow even those expressions that do not require restriction to be subject to the regulation; thereby, it violates the principle against excessive restriction.

In general, a crime is a social evil whose regulation is necessary for the public interest. However, determining what kind of act constitutes a crime often triggers social controversy. Moreover, certain sensitive expressions about political, economic and social issues may have some relevancy to certain crimes or can be perceived as an act of circulating information that is intended to commit a crime. Thus, an act of expression should be distinguished from actual criminal behaviors, and unless the expression in and of itself causes an imminent and serious social evil, it should remain within the area of freedom.

Furthermore, the fact that the regulatory scheme allows the Respondent or the Korea Communications Commission, which can be categorized into administrative agency, to select certain information to be subject to a correction request or an order of rejection, indicates that it has a danger similar to censorship. This necessitates that such content‐based regulation by an administrative agency be more clearly stipulated by statutory provisions and be limited to extremely exceptional cases where the harm by the act of expression cannot be prevented by the judicial process in the justice system.

The Instant Provision of the Information and Communications Act nonetheless sets an overbroad scheme that subjects all crime‐related information to its regulation, while completely disregarding seriousness of the harm and the real danger of its consequence to occur. As such, the Instant Provision of the Information and Communications Act infringes on freedom of expression, violating the principle of clarity and the principle against excessive restriction.