This is a draft translation of the official summary of the Constitutional Court of Korea decision holding the “real name system,” which had been in place since 2007, to be unconstitutional. The decision has attracted considerable global attention, and has been reported on in numerous English-language media outlets from Yonhap News to the Wall Street Journal.
Any links in the text have been added for clarification, and are not present in the original.
On August 23, 2012, the Justices of the Constitutional Court of Korea ruled unanimously that Article 44-5 Paragraph 1 Subparagraph 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc
. and Article 29 and Article 30 Paragraph 1 of the Enforcement Decree of that Act, which define the so-called “identity verification system” that prevents message board users from using message boards until they have gone through identity verification procedures by imposing an obligation on information service providers who establish/operate internet message boards to conduct identity verification procedures, violate the anti-overrestriction principle and are therefore infringe unconstitutionally on the freedom of the press for information service providers that operate internet message boards, as well as on the freedom of expression and right of informational self-determination of message board users.
Background of the Case and Provisions at Issue
― Background of the Case
○ 2010 Hun Ma 47: Complainants OOO et al. attempted to post a comment on an internet message board under an alias, but the message board operator had taken measures to ensure that comments could only be posted to the message board after passing through procedures to verify the identity of the poster, in accordance with Article 44-5 Paragraph 1 Subparagraph 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and Article 29 and Article 30 Paragraph 1 of the Enforcement Decree of that Act (hereinafter collectively “the instant provisions”), which specify the identity verification system, and as a result, the comment could not be posted; thereupon the complainants filed the instant constitutional complaint, claiming that the instant provisions infringed on their freedom of expression.
○ 2010 Hun Ma 252: Complainant OOOOO, which operates the internet media company “Internet OOOOO”, was obligated to take identity verification measures starting on April 1, 2010, having been declared by the Broadcast Communications Commission to be subject to identity verification obligations for the year 2010, and thereupon filed the instant constitutional complaint, claiming that the instant provisions, which were the legal basis for this obligation being imposed, infringed on the freedom of the press.
― Provisions at issue
○ The matter at issue in this case is whether Article 44-5 Paragraph 1 Subparagraph 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.(as amended 6/13/2006 by Act No. 9119, hereinafter “the ICN Act”) and Article 29 and Article 30 Paragraph 1 of the Enforcement Decree of that Act (as amended 1/28/2009 by Presidential Decree No. 21278, hereinafter “the ICN Decree”) are unconstitutional by virtue of infringing upon the complainants’ basic rights.
Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.(as amended 6/13/2006 by Act No. 9119)
Article 44-5 (Verification of Identity of Users of Message Boards)
① A party falling under any of the following subparagraphs and seeking to establishing/operate a message board must take necessary measures specified by presidential decree (hereinafter “identity verification measures”) such as putting in place methods and procedures to verify the identities of the users of the message board.
2. An information service provider falling under the criteria established by presidential decree and having a daily average of at least 100,000 users for a particular information service type
Enforcement Decree of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.(as amended 1/28/2009 by Presidential Decree No. 21278)
Article 29 (Identity verification procedures)
In the body of Article 44-5 Paragraph 1 of the Act, “necessary measures specified by presidential decree” mean the following:
1. Putting in place means for the verification of the identity of a message board user by means such as fax or in-person verification, or entrusting the task to a licensed certification agency as defined in Article 2 Subparagraph 10 of the Digital Signature Act or another third party or administrative agency that provides identity verification services
2. Putting in place techniques for preventing the exposure of identity verification information, both during the identity verification procedure and when retaining the identity verification information
3. Retaining identity verification information from the time information is posted on the message board until 6 months after the posting of information on the message board has ended.
Article 30 (Scope of information service providers subject to personal identity verification measures)
① In Article 44-5 Paragraph 1 Subparagraph 2 of the Act, “an information service provider falling under the criteria established by presidential decree” means an information service provider having an daily average of at least 100,000 users for a specific information service type over immediately preceding 3 months as of the end of the previous year.
□ Summary of the Decision
○ The identity verification system is intended to foster a wholesome internet culture by discouraging the posting of illegal information, such as information defamatory to other persons, on internet message boards, and by securing basic data by which the attacker can be identified if the illegal posting of information causes are; we can recognize the objective to be appropriate and the means suitable..
○ However, the identity verification system, which makes it impossible for a message board user to post information on an internet message board without going through identity verification procedures by requiring internet message board operators to conduct these procedures on message board users,, imposes excessive restrictions, as detailed below, beyond what is required to accomplish the objective, and therefore is not deemed to minimize the infringement.
– When harm has occurred due to the posting of illegal information, the attacker can be sufficiently identified through tracking and verification, etc. of internet addresses, etc., and the relief of the victim can be sufficiently accomplished by blocking the distribution and dissemination of the illegal information by means such as: the information provider deleting the information or taking temporary measures (ICN Act, Article 44-2 Paragraphs 1 and 2), an order for the rejection, suspension or restriction of handling of the illegal information by the message board operator/administrator (ICN Act, Article 44-7 Paragraphs 2 and 3), or the imposition of compensation or criminal penalties after the fact.
– The “message board users” who are subject to identity verification include not only “posters of information” but also “viewers of information,” who have no possibility of committing an illegal act; the identity verification system fails to take into account the unique characteristics of the internet, and the scope of its application is too broad, such as in the selection of the information service providers who are subject to the identity verification system, where the precision and criteria for application of the system are based on results of an opaque calculation of the number of users, so that room for capricious implementation is given to those implementing the law.
– Because, an information service provider must retain identity verification information until 6 months after the posting of information has ended, under the identity verification system, the identity verification information may end up being retained indefinitely by the information service provider, unless the posting of the information is ended by deleting it.
○ In addition, because under the identity verification system, as detailed below, it cannot ultimately be said that the disadvantage incurred by the message board user and service provider due to the identity verification system is greater than the public interest served by the identity verification system, the benefit of the law likewise is not proportionate.
– Freedom of expression is an important constitutional value and foundational to democracy, and therefore, in order for prior restraint of the freedom of expression to be justified, there must be a clear public interest; however, after the implementation of the identity verification system, no evidence can be found that the posting of illegal information, such as defamatory information, was significantly reduced, whereas it has led to problems with implementation such as the flight of domestic internet users to foreign sites, as well as enforcement that is capricious or discriminates between domestic and foreign businesses, and thus, ultimately it is does not appear that the system is actually serving the public interest as initially intended. In addition, with the rise of new forms of communication such as social networks and message boards, which are not subject to the identity verification system, the system has ended up serving that public interest only within a very limited part of the internet.
– In contrast, there is a high probability that internet users will give up on expression entirely, out of fear of restrictions or penalties for exposing their own identity due to the identity verification system; also, foreigners and overseas Koreans lacking Resident Registration Numbers are blocked from using internet message boards, and the message board operators, who must compete with means of communication that have newly arisen on the internet, are restricted in a way that is disadvantageous to their business, and due to the retention of identity verification information, the probability has increased that the personal information of message board users will be exposed or improperly used.
○ Accordingly, the instant provisions, which specify the identity verification system, infringe on the freedom of expression and right of informational self-determination of complainants OOO et al., and also on the freedom of the press of complainant OOOOO.