Kyung Sin “KS” Park, Professor, Korea University Law School; Director, Open Net Korea
In 2018, a political activist was arrested and indicted for commenting and liking en mass using other people’s cyber identities and automating such comments and likes with a software in an apparent campaign to support the incumbent government’s views on thorny issues such as forming a united North Korea-South Korea ice hockey team for Pyoungchang Winter Olympics. I believe such prosecution is unconstitutional for reasons of violating free speech.
Firstly, prosecution for assuming others’ cyber identities infringes the right to anonymous communication, confirmed by the 2012 Korean Constitutional Court’s decision on Internet Real Name Law, and also Terry v. Ohio, the 1995 US Supreme Court. To be sure, the real owners of the identities have not complained of any injury or lack of consent. A violation of terms and use may give rise to a breach of contract claim against the registered users or at most there may have been actionable fraud at the time of registering with the portal with other people’s credentials but criminally punishing the users for such conduct will set a dangerous precedent opening a floodgate of lawsuits against the users of online services.
Secondly, prosecution for disseminating false information again infringes on people’s right to “marketplace of ideas” whereby people can engage, hypothesize, rebut, and debate, with others with inaccurate information, as long as the information does not trigger immediate harm such as in defamation, etc. A crime designed to punish speech for mere falsity and no more, i.e., a “false news” crime has been struck down in the 2010 Korean Constitutional Court’s “Minerva” decision, the 1992 Canadian Supreme Court’s Zundel decision, and the 2000 Zimbabwe Supreme Court’s Chavunduka decision. It attempts to criminalize the activist for spreading ‘distorted information about how much people oppose, for instance, the United Korea hockey team, in absence of any “clear and present danger” to any specific victims.
Thirdly, ‘manipulating public opinion’ on the country’s biggest portal cannot justify the prosecution, either, given the resilience and distributed nature of the Internet where it is the users who create the prevailing opinions through their “affirmative acts” of clicking on the hyperlinks, unlike newspapers and television passively consumed by the users. It was a deciding distinction emphasized by the 1995 US Supreme Court’s Reno v. ACLU. The 2011 Korean Constitutional Court’s Internet Election Campaign decision made the same distinction when it surgically carved out a liberating exception for the Internet from strict electoral bans, reasoning that, unlike television or newspaper, the Internet is more egalitarian and less prone to money-backed influences.
Fourthly, the fact that he used automation should not be the basis of illegitimacy given that automating exercise of freedom of speech should not be a crime, though it may be considered rude and raucous as use of amplifiers in a classroom but, undefined, such act should not be the subject of criminal punishment. If such is a crime, setting up a website will be a crime, as Andrew Koppelman once famously commented.
Overall, the Internet has been considered a political equalizer, giving powerless people the same functionalities of spreading and gathering information as the powerful actors like governments and companies. The coin side of such equal freedom is that people will participate in the discourse with disruptive non-traditional tactics within the confines of the existing laws. Politics has been a debate about who truly represents the true majority will of the people. Here is an activist who used the Internet and software to exaggerate the number of people that his views represent. Characterizing that as a crime just because he exploited the freedom allowed by the new technology will be like throwing out a baby with bath water.