Legislation Driven by Anti-Foreigner Sentiment in the Name of Elections
An Unconstitutional Proposal that Violates Equality and Freedom of Expression — Withdraw It Immediately
— On the Proposed Amendment to the Information and Communications Network Act Mandating the Blocking of Political Comments by Foreigners
On February 5, Rep. Lee Jun-seok and several other members of the National Assembly introduced a bill to amend the Information and Communications Network Act (Bill No. 2216616). The proposed amendment would require online platforms to verify users’ nationality and block foreigners from posting political comments during election periods. Open Net Korea strongly condemns this bill as a clearly unconstitutional measure and a dangerous attempt to mobilize exclusion and hostility toward foreigners for political purposes, and calls for its immediate withdrawal.
The bill would impose technical and administrative obligations on platform operators to prevent foreigners from posting opinions on political news articles or editorials during election periods. This constitutes a regulation that collectively silences a specific group solely on the basis of nationality, thereby violating both the right to equality under Article 11 of the Constitution and the freedom of expression under Article 21. Legislation that categorically blocks political expression based on nationality is subject to strict constitutional scrutiny.
Freedom of political expression is among the most strongly protected fundamental rights in a democratic society. Foreign nationals living in Korea reside under the country’s legal order, pay taxes, and participate in society as members of the community. Posting comments on news articles or expressing political views online is a form of expression distinct from the exercise of voting rights. Nevertheless, the bill presumes that political speech by foreigners is inherently suspect and seeks to silence an entire group’s expression in advance. This amounts to collective exclusion based on nationality and constitutes discriminatory regulation that the Constitution cannot permit.
Local Election Voting Rights and Political Expression
Under current law, certain foreign nationals who meet specified requirements are granted the right to vote in local elections. This reflects Korea’s recognition that, within a certain scope, foreigners can participate as members of local communities in the process of political decision-making.
It therefore follows that such individuals should also be guaranteed the freedom to express political opinions during election periods. Restricting the freedom to voice opinions, participate in debate, and express support or criticism regarding policies and candidates for those who may exercise voting rights creates serious tension within the system of fundamental rights. Freedom of political expression is not merely a derivative right attached to voting rights; it is an independent fundamental right that must be protected throughout the entire process of democratic opinion formation.
The bill appears to provide an exception allowing foreigners who possess local election voting rights to post comments. However, requiring platforms to distinguish users not only by nationality but also by whether they hold local election voting rights in order to determine comment eligibility would be extremely difficult in practice and would inevitably entail excessive data collection and administrative burdens. A system capable of verifying voting eligibility accurately in real time would face both institutional and technical limitations, and the risks of erroneous or excessive blocking would be substantial. Such an exception therefore fails to secure either effectiveness or proportionality.
Furthermore, differentiating the protection of political expression based on the possession of voting rights itself raises constitutional concerns. Freedom of political expression cannot be reduced to the scope of voting rights. In a democratic society, it is a core fundamental right that deserves broader protection.
Prior Restraint and Violation of the Principle of Proportionality
The bill is particularly troubling because it adopts a system of prior and structural restriction. By requiring platform operators to verify users’ nationality in advance and to block certain expressions at the stage of posting, the state would effectively create a mechanism that structurally screens and controls expression through private platforms. Although implemented through private intermediaries, compelling the blocking of speech before it is posted produces effects that are fundamentally indistinguishable from constitutionally prohibited prior restraints on expression.
Even if ensuring the fairness of elections is considered a legitimate objective, a blanket prohibition on political expression by foreigners is neither suitable nor necessary to achieve that purpose. Problems such as manipulation of public opinion can be addressed through less restrictive means, including the regulation of automated accounts, ex post sanctions against the dissemination of disinformation, and greater transparency measures. Stripping an entire nationality group of its ability to speak is manifestly excessive and fails the test of proportionality.
Threats to Anonymity and the De Facto Revival of Real-Name Verification
The requirement to verify nationality also raises serious concerns regarding the right to informational self-determination and the freedom of anonymous expression. Although the bill states that platforms should “endeavor to protect the anonymity of users confirmed to be Korean nationals,” this provision is merely declaratory. In practice, large numbers of users would be required to undergo nationality verification procedures in order to make political comments during election periods. This could produce chilling effects similar to those created by Korea’s former internet real-name verification system, which was later struck down as unconstitutional. The mere existence of identification and record-keeping mechanisms can discourage citizens from speaking freely. This chilling effect would be particularly severe for individuals who wish to criticize government policies, as well as for social minorities and whistleblowers.
Symbolic Legislation with Little Practical Effect
The bill also raises serious questions regarding its effectiveness. Modern forms of organized manipulation of public opinion typically operate not through nationality but through automated accounts, financial resources, and the abuse of algorithmic systems. In an environment where VPNs, proxy accounts, and identity circumvention are readily available, nationality verification can easily be bypassed. As such, placing regulatory focus on a particular nationality group is likely to result in little more than symbolic regulation that fails to address the real sources of the problem.
Open Net has also recently filed a constitutional complaint challenging Article 17(2) of the Immigration Control Act, which broadly prohibits political activities by foreign nationals residing in Korea. The provision imposes sweeping restrictions on foreigners’ political expression and participation in society, raising serious concerns regarding violations of freedom of expression and equality. The proposed amendment to the Information and Communications Network Act reflects the same problematic approach: excluding foreigners from political expression on the pretext of elections. Silencing foreigners in the democratic public sphere cannot ensure either fair elections or a healthy democracy.
Democracy Is Not Strengthened Through Exclusion
Democracy functions only when diverse voices openly confront one another and citizens are able to deliberate and make judgments through that process. Restricting the ability of a particular group to speak in the public sphere on the pretext of elections seriously undermines the openness and pluralism of democratic discourse. The National Assembly should immediately withdraw this discriminatory and unconstitutional proposal and instead pursue precise and proportionate responses targeted at genuine problems such as coordinated manipulation and unlawful conduct. Democracy is not strengthened through exclusion.
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