Open Net Korea submitted a statement of opposition to the National Assembly on March 20 regarding the proposed amendment to the Information and Communications Network Act (proposed by Representative Na Kyungwon, Bill No. 2208450), commonly known as the ‘Mandatory Nationality Display on Comment Act.’
This amendment targets not only online comments, but essentially all internet spaces including blogs, communities, and video platforms, and imposes obligations on information and communication service providers to track, collect, and disclose users’ connection location information and whether they are using bypass access programs.
This violates the constitutional principle of proportionality by fundamentally infringing upon internet users’ right to informational self-determination—the freedom to not have personal information such as location tracked, collected, and disclosed; the confidentiality and freedom of communications—the freedom to not have communication information such as connection location and bypass access usage identified; and freedom of expression—the ability to freely express opinions without having personal information tracked and disclosed. As legislation that encourages widespread surveillance of internet public forums by the government and private corporations, it should be withdrawn or abolished.
Opinion on the “Partial Amendment to the Information and Communications Network Act”
1. Main Content of the Amendment
This amendment essentially requires information and communication service providers that meet certain criteria to implement technical measures to display the country name based on the user’s service usage and access location when posting information on bulletin boards, etc., as well as an obligation to indicate whether bypass access is being used. It also mandates the recording, storage, and submission of related materials to the competent authority, with violations punishable by fines of up to 10 million won.
2. Violation of Constitutional Principle Against Excessive Restriction, Infringing on Internet Users’ Right to Informational Self-Determination, Confidentiality and Freedom of Communications, and Freedom of Expression
a. Lack of Legitimacy in Legislative Purpose
This amendment cites as its rationale “growing public concern about frequent attempts to distort domestic online public opinion through organized comment activities based overseas” and that “such actions not only undermine fair cyberspace but also cause serious damage to self-employed individuals, small business owners, content creators, and the general public.”
In the borderless internet world, ‘public opinion’ is not something that can only be formed by people of specific nationalities or residing in specific regions. It is a fundamental premise that once an information and communications network service allows everyone to express their opinions, anyone can form public opinion on any issue regardless of nationality and residence. One cannot define only the opinions of people of specific nationalities or residing in specific countries as genuine and sound public opinion. Concepts such as ‘genuine democratic public opinion not induced or manipulated by specific groups’ or ‘fair cyberspace’ are unclear in their substance. Additionally, “organized comment activities based overseas” and the resulting “damage to the general public” are unproven harms that amount to mere speculation.
Furthermore, ‘preventing opinion manipulation by specific groups’ is difficult to justify as a legislative purpose. All external expressions of human intent carry the purpose of socially achieving one’s will, that is, influencing public opinion. Labeling strong or concentrated expressions of intent by individuals or groups as ‘opinion manipulation’ and treating them as taboo is essentially ignoring the meaning of freedom of expression in a democratic society. Consumer movements and other collective movements, group actions, assemblies, and demonstrations are all collective and organized expressions of intent to influence public opinion. Public opinion can always appear to be manipulated or distorted not only by foreign countries but also by various other groups such as religious groups or specific political organizations. If ‘preventing opinion manipulation by specific groups’ is justified as a legislative purpose and regulations requiring tracking and disclosure of personal information about expression subjects are permitted, there is a high risk that this could expand to regulations forcing the collection, tracking, and disclosure of sensitive personal information not only about nationality or access location but also about groups, regions, gender, generation, income level, political affiliation, religion, etc., to which expression subjects belong, thereby justifying comprehensive state surveillance of the public sphere.
In other words, this amendment lacks legitimacy in its legislative purpose as the public interest it seeks to achieve is unclear.
b. Infringement on Internet Users’ Right to Informational Self-Determination, Confidentiality and Freedom of Communications, Freedom of Expression, and Service Providers’ Freedom of Business and Expression
To achieve this unclear public interest, this amendment legally enforces excessive obligations such as requiring information and communication service providers to track, collect, and disclose users’ access locations and bypass access status, with fines for violations.
This fundamentally infringes upon internet users’ right to informational self-determination (the freedom not to have personal information such as location tracked, collected, and disclosed), confidentiality and freedom of communications (the freedom not to have communication information such as access location and bypass access status identified), and freedom of expression (the ability to freely express opinions without having personal information tracked and disclosed), in violation of the constitutional principle against excessive restriction.
Furthermore, it infringes upon the freedom of business of information and communication service providers who wish to provide services without taking technical measures to identify users’ location information and bypass access status. Particularly problematic is requiring service providers to indicate whether users are bypassing access, which essentially means identifying and marking users of VPNs—a measure that is practically impossible technically. It also infringes upon the freedom of expression of information and communication service providers who wish to form and operate a more free public forum without collecting user information.
3. Establishment of a Comprehensive Internet Public Forum Surveillance System by the Government and Private Companies, Greatly Restricting Freedom of Expression
This amendment stipulates that information and communication service providers must display the country name based on usage and access location “when users post information on bulletin boards, etc. that they operate and manage,” meaning that virtually all internet spaces where opinions can be expressed—blogs, cafes, communities, video platforms, etc.—are subject to regulation.
The amendment also stipulates that obligated businesses must automatically record the operation and management status of these technical measures in their systems, allowing the Minister of Science and Technology Information and Communication or the Korea Communications Commission to inspect the operation and management status of technical measures or order obligated businesses to submit necessary materials, with technical measures, inspection procedures and methods, and other necessary matters to be determined by presidential decree. Accordingly, the presidential decree could stipulate that private companies identify and manage users’ personal information such as access locations and the content of users’ expressions in connection with each other, and impose obligations to report and submit this to the government. This is no different from declaring comprehensive surveillance of internet public forums by the government and private companies, and such regulations pose a high risk of greatly restricting the freedom of expression of government critics and political minorities.
4. Conclusion
This bill should be withdrawn or abolished as it infringes upon internet users’ right to informational self-determination, confidentiality and freedom of communications, freedom of expression, and information and communication service providers’ freedom of expression and freedom of business, in violation of the constitutional principle against excessive restriction, and encourages comprehensive surveillance of internet public forums by the government and private companies.
0 Comments