Open Net Submits Opinion Opposing Bill That Would Criminalize Mockery, Derogation, and Ridicule Online
Open Net Korea has submitted an advisory opinion to the National Human Rights Commission of Korea (NHRCK) on a bill introduced by Rep. Lee Hoonki and 10 other lawmakers (Bill No. 2219096) that would define “mockery and hate information” as illegal information under the Act on Promotion of Information and Communications Network Utilization and Information Protection and impose criminal penalties and administrative sanctions for its dissemination.
The bill introduces a new category of “mockery and hate information,” prohibits its dissemination, and imposes criminal penalties on anyone who repeatedly or maliciously posts or distributes such information. It also requires information and communications service providers and online platform operators to take measures including deletion and blocking of access, restrictions on exposure, search, and recommendations, restrictions on account use, and restrictions on monetization. In addition, the bill authorizes the Broadcasting, Media and Communications Commission to order such measures and, in cases of noncompliance, to impose administrative fines or even order the suspension or closure of platform services or information and communications services.
Open Net believes that the bill defines the regulated category of “mockery and hate information” in terms that are excessively abstract and vague, and that subjecting even mere mockery, derogation, contempt, and ridicule to criminal penalties and administrative sanctions would impose an excessive restriction on freedom of expression.
“Mockery, derogation, contempt, and ridicule” do not clearly define what is prohibited
The bill defines “mockery and hate information” as information that contains content that “insults, mocks, disparages, holds in contempt, or ridicules” a particular individual or group. However, “insult,” “mockery,” “derogation,” “contempt,” and “ridicule” are abstract and variable concepts whose meanings can differ depending on the context and tone of an expression, the use of images, and how it is interpreted by its audience.
Although the bill excludes “legitimate criticism, debate, and reporting for the public interest, as well as academic and artistic activities, satire, or parody” from its scope, terms such as “public interest,” “legitimate criticism,” “satire,” and “parody” are themselves difficult to define with clear boundaries. In particular, satire and parody are forms of expression that often use mockery or ridicule to criticize social problems. Ultimately, the bill leaves it to the state and service providers to determine which expressions constitute protected criticism or satire and which constitute punishable mockery.
When the standards for criminal punishment and administrative sanctions are unclear in this way, individuals cannot reasonably predict whether their expressions will be subject to regulation. Service providers, meanwhile, are likely to remove even lawful expressions preemptively in order to avoid sanctions.
Mockery and derogation should not be criminalized in themselves
Expressions that mock, disparage, hold in contempt, or ridicule individuals or groups should not be subject to criminal punishment. Allowing the state to prohibit an expression through criminal sanctions merely because it is rude or offensive, or because someone may perceive it as insulting, constitutes a serious restriction on freedom of expression.
Mockery and ridicule are particularly common forms of expression in political satire and social criticism. For example, nicknames such as “Chip-sama” for a celebrity caught engaging in illegal gambling, or “Killer Jo” for a celebrity whose drunk driving caused injuries or death, can also serve as ways of expressing public disapproval and criticism of gambling or drunk driving. If such expressions become subject to regulation simply because they are deemed “mockery” or “derogation,” legitimate forms of social criticism will inevitably be chilled as well.
Moreover, the bill appears to extend its regulation to expressions of mockery or hatred directed at deceased persons. If criticism and evaluation of public or historical figures, including parody and satire, become subject to regulation, the result could be state control over historical assessments and expressions concerning figures from the past.
Where expression causes a concrete infringement of rights or creates a clear and present danger of leading to discrimination, exclusion, or violence, appropriate legal responses may be considered. However, imposing punishment merely because an expression constitutes “mockery,” “derogation,” “contempt,” or “ridicule,” without regard to any concrete harm or danger, is excessive. Existing laws already provide remedies for specific infringements of individual rights, including insult and defamation.
Administrative authorities should not be given the power to order everything from content removal to website closure
The bill imposes broad obligations on information and communications service providers and bulletin board operators to take measures such as deleting and blocking access to vaguely defined “mockery and hate information,” and authorizes the Broadcasting, Media and Communications Commission to order such measures. Service providers are likely to proactively remove even expressions that are difficult to determine whether they fall within the scope of regulation, in order to avoid sanctions.
Moreover, the bill would authorize the Broadcasting, Media and Communications Commission to order the suspension or closure of platform services or information and communications services. Blocking an entire website because problematic information has been uploaded there could constitute an excessive form of regulation that also blocks lawful information and the expressions of users who use the site.
The standards for suspension and closure likewise rely on abstract requirements such as “without justifiable grounds” and cases where “the extent of harm and social impact are significant.” Such provisions grant broad discretion to administrative authorities, creating a risk of arbitrary enforcement and government control over expression.
Hate and discrimination should not be addressed by restricting freedom of expression
Open Net does not deny the need to address hate and discrimination. However, such efforts should not take the form of granting the state broad authority to determine what constitutes “mockery” or “hate,” followed by the deletion or blocking of such expression through criminal punishment and administrative sanctions.
Freedom of expression does not protect only polite and reasonable speech. At times, harsh, offensive, and controversial expressions must also be allowed to be freely raised and subjected to criticism by others. If the state makes the initial determination that an expression is harmful and prohibits it based on abstract concepts such as mockery or derogation, the pluralistic public sphere itself may be chilled.
To address hate and discrimination, the law should instead establish a principle of responding, to the extent necessary, only where there is a clear and present danger that expression will lead to actual discrimination, exclusion, or violence against members of a group, rather than regulating the form of expression or the offense it causes.
Open Net calls for the withdrawal of this bill, which would restrict freedom of expression and introduce criminal penalties and administrative sanctions based on the vague concept of “mockery and hate information.”
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