A decision that Telecommunications Act (2020.6.9 Law No. 17352) Article 22-5 Paragraph, Article 92-2 Item 1-3 is unconstitutional; and
its Enforcement Decree (2020.12.8 Presidential Order No. 31223) Article 30-6 is unconstitutional.
Constitution Article 18 Freedom of Telecommunication, Article 21 Freedom of Express and Right to Know
Cause of Action
- Status of Complainants
Complainants are the users of various value-added telecommunication services whose rights are being infringed by the provisions on review.
- Provisions on Review
Telecommunications Business Act
Article 22-5 (Prevention of Circulation of Illegal Filmed Materials by Value-Added Telecommunications Business Operators)
(2) A business operator obliged to take measures prescribed by Presidential Decree, in consideration of the type of telecommunications services, scale of business, etc., shall take technical and managerial measures prescribed by Presidential Decree to prevent the circulation of illegal filmed materials, etc. <Newly Inserted on Jun. 9, 2020>
Article 95-2 (Penalty Provisions)
Any of the following persons shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 100 million won: <Amended on Oct. 15, 2014; Jun. 9, 2020>
1-3. A person who fails to take technical and managerial measures under Article 22-5 (2): Provided, That the same shall not apply where he or she has not been negligent in paying due attention to take the technical or managerial measures under Article 22-5 (2) or where it is technically and significantly impracticable to take the technical or managerial measures under Article 22-5 (2)
Enforcement Decree to Telecommunications Business Act
Article 30-6 (Technical and Managerial Measures to Prevent Circulation of Illegal Filmed Materials)
(1) “Business operator obliged to take measures prescribed by Presidential Decree” in Article 22-5 (2) of the Act means any of the following business operators obliged to take measures (hereinafter referred to as “business operator obliged to take preliminary measures”):
- A special value-added telecommunications business operator who falls under subparagraph 14 (a) of Article 2 of the Act;
- A person reporting the value-added telecommunications business under Article 22 (1) of the Act (including a person who falls under any of the subparagraphs of paragraph (4) of the same Article), who meets any of the following requirements:
(a) A person whose sales from the value-added telecommunications services for the preceding year (referring to the preceding business year, in cases of a corporation) are at least one billion won and who provides value-added telecommunications services specified in attached Table 3-2;
(b) A person who has an average number of at least 100,000 users per day for three months immediately before the end of the preceding year and who provides value-added telecommunications services specified in attached Table 3-2.
(2) “Technical and managerial measures prescribed by Presidential Decree” in Article 22-5 (2) of the Act means the following measures:
- Measures to enable a person who discovers information suspected to be illegal filmed materials, etc. to constantly file a report on, or a request for deletion of, such information with a business operator obliged to take preliminary measures through the information and communication network;
- Measures to restrict the transmission of search results, such as deleting the search results by identifying whether the information that users intend to search corresponds to illegal filmed materials, etc. for which a report or request for deletion was filed pursuant to Article 22-5 (1) of the Act, by means of comparison of a search word entered by the users and the title, name, etc. of the illegal filmed materials, etc.;
- Measures to restrict the publication of the relevant information after analyzing the characteristics of the information that users intend to publish and comparing and identifying whether the information corresponds to illegal filmed materials, etc. deliberated and decided by the Korea Communications Standards Commission. In such cases, any of the following technologies shall be used for comparison and identification:
(a) Technologies developed and provided by the State agencies;
(b) Technologies that have passed a performance assessment conducted within the last two years by the institutions and organizations designated and publicly notified by the Korea Communications Commission;
- Measures to inform users in advance, through the information and communications network, that where they circulate illegal filmed materials, etc., measures necessary to prevent the circulation of the relevant information, such as deleting the information and blocking access thereto, under Article 22-5 (1) of the Act shall be taken and they may be punished under the relevant statutes or regulations.
(3) Detailed matters concerning technical and managerial measures under paragraph (2) shall be determined and publicly notified by the Korea Communications Commission.
(4) The Korea Communications Commission may provide a business operator obliged to take preliminary measures with any administrative support necessary for taking technical and managerial measures under Article 22-5 (2) of the Act.
(5) The Korea Communications Commission may establish a cooperation system with business operators obliged to take preliminary measures and the relevant institutions or organizations to provide administrative support under paragraph (4).
(6) “Period prescribed by Presidential Decree” in Article 22-5 (4) of the Act means three years.
[Table 3-2] Scope of Value-added services provided by preliminary measure obligors (concerning Article 30-6 para 1 item 2 sub-item a and b)
“Value-added services provided by preliminary measure obligors” means one of the following services through which users publish, share, and offer for search the information made available and circulated to the public :
- social network service, online community, chat room, etc., and such technical means whereby an unascertained multitude of people post and share signs, texts, voices, sounds, photos, and videos etc.
- technical means whereby moderator appears to post signs, texts, voices, sounds, photos, and videos etc. to an unascertained multitude of users in real-time
- technical means whereby an unascertained multitude of users can search for certain information and receive search results such as signs, texts, voices, sounds, photos, and videos etc (or their location on the information communication network).
Note: The following value-added services are excluded from the preliminary measure obligors:
- value-added services whose primary purpose is to provide sale of good or provision of services such as finance, medicine, education, periodicals, news, music, broadcasting, game, cartoon etc.,
- government, local government, and other public entities’ services
- information and communication services organized under the laws other than the Civil Code and the Commercial Code
- Legality of the Constitutional Challenge
- Unconstitutionality of the Provisions on Review
- Substance of the Provisions on Review
- Scope of Business Operators Obliged to Take Preliminary Measures
[Per the provisions on review,] the business operators obliged to take preliminary measures are web hard operators, SNS/community/chatroom service operators, internet personal broadcasting service operators, and search service operators. Entities like these that mediate the sharing and transmission of the information without itself making or providing information or content available on the internet are called ‘internet intermediaries’.
- Scope of preliminary measures obligations
Per Article 22-5 Para 2, the preliminary measure obligors must take technical and managerial measures to prevent circulation of illegal filmed material etc. Upon failure to do so, they will be subject to the Korea Communication Commission’s order to close or suspend all or part of the business (Article 27 Para 1 Item 3-5) and corrective order (Article 92 Para 1 Item 1), imprisonment with labor up to 3 years or a fine up to KRW 100 million (Article 95-2 Item 1-3) and an administrative fine up to KRW 50 million (Article 104 Para 1 Item 3).
Per Article 22-5 Para 1, “illegal filmed material etc.” means (1) filmed material or its copy falling under Article 14 of the Special Punishment Act on Crimes of Sexual Violence; (2) An altered, synthesized, or fabricated material or a copy thereof under Article 14-2 of the Special Penal Act for Crimes of Sexual Violence; (3) child sexual abuse material under Article 2 Item 5 of the Child’s Sex Protection Act.
Enforcement Decree Article 30-6 Para 2 defines ‘technical and managerial measures’ as the following four measures, all of which must be implemented by the preliminary measures obligors:
- Measures to enable a person who discovers information suspected to be illegal filmed materials, etc. to file a report on, or a request for deletion of, such information with a business operator obliged to take preliminary measures through the information and communication network at any time (“reporting measure”);
- Measures to restrict the transmission of search results, such as deleting the search results by comparing the key words that users intend to search against the title, name, etc. of the illegal filmed materials on which a report or a deletion request has been filed per Statute Article 22-5 Item 1 (“search restriction measure”);
- Measures to restrict the publication by comparing the characteristics of the information that users intend to publish against the information found to be illegal filmed materials, etc. by the Korea Communications Standards Commission (“filtering measure”)
- Measures to inform users in advance, through the information and communications network, of the measures necessary to prevent the circulation of the relevant information, such as deleting the information and blocking access thereto, under Article 22-5 (1) of the Act and punishment under the relevant statutes or regulations (“warning measure”)
- Internet Intermediary Liability Principle
- Meaning of Intermediaries
The positive law does not use the term “intermediaries” but can be defined to include an entity that “provides to others the service of transmitting the information without modification and does not produce or provide the information itself.” All portals (NAVER, DAUM), search engines (Google etc.), chatroom services (Kakao Talk, Telegram), SNS (Youtube, Facebook, Instagram etc.), internet personal broadcasting (Afreeca TV etc.) are all intermediaries and will fall under the preliminary measure obligors depending on their sizes.
- Civilizational Significance of the Internet and Intermediary Liability Principle
The civilizational significance of the Internet is that it includes all individuals in public discourse by providing the extremely distributed and personalized communication system. By public discourse, we mean simultaneous communication to the multitude of people, and the Internet provides a forum for such public discourse where everyone can upload messages without anyone’s approval and see all others’ messages without anyone’s approval. Other fora for public discourse such as broadcasting and newspaper exclude people not chosen by reporters or the desk. The Internet has other features such as email, chat, cloud etc., but embraces an overwhelmingly diverse range of individuals in public discourse and thereby supports development of polity, society, and economy in that unique way.
The Constitutional Court also has recognized the Internet as “the most participatory market” and “expression-promoting medium” that has “low entry barrier and guarantees the interactivity of speech, and requires affirmative and deliberative action from users” (Constitutional Court 2002.6.27 decision 99 Hunma480, Subversive Communication case). The Court also ruled that “the Internet is closest to the free market of ideas premised upon openness, interactivity, distributedness, ease access, diversity, etc.” (Constitutional Court 2011.12.29 decision 2007Hunma1001, Online Election Campaign case), and also praised the Internet as “promoting democracy by reflecting on public discourse the opinions of diverse groups of people who overcome the real world hierarchy based on economic or political power unrestrained from class, status, agen, gender, making use of the speed and interactivity of the online speech together with the anonymity (Constitutional Court 2012.8.23 decision 2010Hunma47/252 consolidated).
. . . The Internet allows freedom for unascertained multitude of people to share and circulate enormous amounts and diversity of information and it is inevitable that some of the information are unlawful. Those who offered and shared the unlawful information must be held directly liable. . . If an intermediary is held liable comprehensively and excessively merely for having prepared a forum for the sharing of unlawful information, the intermediary will try to avoid the liability by either shutting down the forum or monitoring and evaluating all contents posted real-time to cull out the unlawful ones. This is unrealistic and technically impossible. It will be only possible only if the intermediary exercises overbroad private censorship on the contents or if the intermediary allows posting only of those contents vetted in advance. Such system will infringe and chill the freedom of expression of the users like Complainant of this case, and also infringe freedom of telecommunication, privacy, and access to information. The innovation and technological progress will be also hampered, causing the Internet’s death and frustration of its civilizational significance.
- Intermediary Liability Principle
There are two pillars of intermediary liability principles. The first is the ban on general monitoring obligation: intermediaries shall not be imposed an affirmative duty to screen all information posted by their users to take down unlawful ones. Such obligation is practically and technically not only impossible but also will impose excessive private censorship powers to infringe the users’ freedom of speech and privacy. Among the provisions on review, the search restriction measure and the filtering measure directly violate this principle.
The second pillar is intermediary liability safe harbor: intermediaries do not have agency in the unlawful information and therefore should be imposed a duty of care to block it only in exceptional situations of ‘scienter’ and ‘technical and financial feasibility’. Such limitation on intermediary liability has formed the world’s universal trend reflected in the legislations of the US, EU, Germany, and Japan. Our own Supreme Court has ruled similarly. Our statutes such as Information Communication Network Act Article 44-2 temporary measure and Copyright Act Article 102/103 Online Service Provider liability limitation have codified this safe harbor albeit incompletely. Even para 1 of Article 22-5 of the statute on review codifies post-publication obligation in line with the principle.
- General Monitoring Obligation Ban
- Meaning of general monitoring obligation ban
It may seem consistent with intermediaries’ position in today’s users’ life of communication that they constantly and totally screen for unlawful information to block or delete. However,. . . intermediaries only mediate information and do not offer or produce it, and the same legal obligation should not be imposed. Imposition of general monitoring obligation will strengthen intermediaries’ tendency for private censorship, conflicting with the Internet’s basic philosophy and infringing on the users’ free speech and privacy. This is the reason why there is no such law in other countries.
- International standard
- Manila Principles of Intermediary Liability
- 2018 Joint Declaration of Special Rapporteurs of Freedom of Expression of the UN, OSCE, OAS, and ACHPR on Freedom of Expression and Responses to Conflict Situations
- 2018 UN Special Rapporteur on Freedom of Expression’s Report on Content Regulation
- European Union’s E-Commerce Directive 2000/31/EC and Korea-EU FTA.
- United States’ CDA 230, Zeran v. AOL, 18 US Code Section 2258A(f)
- Application of Intermediary Liability Principles to this Case
Out of the four technical and managerial measures required, the reporting measure and the warning measure do not fall under a general monitoring obligation but the search restriction measure and the filtering measure do.
Technically, both are filtering: keyword filtering and DNA filtering, respectively. The keyword filtering filters by whether search words include banned words such as the titles and file names of certain information. The DNA filtering filters by comparing the hash value or DNA value extracted from videos against a pre-curated database. The keyword filtering suffers from the limited efficacy of curating the words that correspond to illegal content and identifying the contents by the words with no logical relationship. “Lolita”, “child” do not anticipate any illegality of the content, and the Korean words for “penis”, “cum” are identical with parts of “sleep” and “pre-set fee”. Hash value/DNA filtering suffers from the inability to block the illegal material that has not been added to the database and may end up blocking lawful content.
Either filtering measure requires the operators to monitor all the information being posted constantly. Such monitoring obligation, if applied to private space, will violate secrecy of communication guaranteed by Article 18 of the Constitution, and if applied to publicly available spaces, will still strengthen private censorship and infringe on free speech and right to know.
- Violation of Blanket Delegation Ban and Principle of Clarity
- Blanket Delegation Ban
[The statute delegates (1) the scope of the valued-added service providers subject to the new Article 22-5 and (2) the details of technical and managerial measures required, to presidential decree, while these categories constitute the elements of criminal punishment.]
- Principle of Clarity
[The statute’s definitions of “illegal filmed material” and “information made available and circulated to the public” are unclear whereas these categories constitute the elements of criminal punishment. “Illegal filmed material” incorporate by reference the provisions of other laws pivoting on the category of “human bodies that could stimulate sexual desire or shame” which is unclear as in the case of leggings. Also, the category “information made available and circulated to the public” is unclear as to whether the private communication services are also subject to the law as long as the information made available and circulated to the public is shared.]
- Infringement of specific rights
- Rights infringed
- Freedom of Telecommunication (Secrecy of Telecommunication)
- Freedom of Expression
- Violation of the Rule against Excessive Restriction
- Legitimacy of Purpose
[The law’s purpose of “preventing distribution and propagation of the illegal filmed material” is legitimate.]
- Means-Ends Fit and Minimum Restriction
[Imposition of general monitoring obligations will incentivize intermediaries into censoring all border-line contents, and therefore does not fit the purpose. Also, criminal punishment of intermediaries for non-feasance violates the principle of minimum restriction.]
- Proportionality of Competing Interests
[The search restriction measure and the filtering measure cause reverse-discrimniation on domestic companies and suffer from technical limitations and therefore does not achieve sufficient public interest to balance out the infringement.