Administrative Internet Censorship by KCSC

방송통신심의위원회의 인터넷행정검열

PARK Kyung-Sin 박경신

Korea University Law School 고려대학교 법학전문대학원

 

Table of Contents 목차

  1. Introduction
  2. Cases of Censorship
  3. Constitutional History
  4. “Illegal Content”?
  5. Due Process
  6. Is Administrative Censorship Per Se Evil?
  7. Conclusion

 

 

  1. Introduction

 

Korea Communication Standards Commission (KCSC) is the administrative body monitoring and censoring of the internet content in Korea.  KCSC’s Internet censorship is vigorous[1]: it blocked 39,296 websites or pages based on overseas servers and deleted 17,827 domestic-server-based websites or pages in 2012[2] through “correction request” decisions issued to protect its 50 million people.[3]  The total number of blocking of deleting reached 104,400 for 2013.  For comparison, the counterpart Australian Communication and Media Authority (“ACMA”)[4] has blocked only about 500 websites or pages each year in 2012-2013[5], in service of its 22 million people.  Per capita, KCSC censored about 50 times ACMA in 2012 and 100 times ACMA in 2013.

 

KCSC’s reach is broad and comprehensive, covering beyond obscenity/prostitution(19.6%), drugs (35.3%), and gambling(33.6%), and reaching defamation (8.6%) and “any information intended for, aiding or abetting any crime”(2.8%), two categories obviously open to government abuse where, for instance, ACMA’s activities focus on child pornography (55%) and almost always relate to sex-related content (99%).[6]   KCSC’s censorship is carried out under the following provision:

 

The Act Regarding Promotion of Use of Information Communication Networks and Protection of Information (hereinafter, “IC Network Act” or “Network Act”)[7]

Article 44-7 (Ban on Exchange of Illegal Information)

Section 1.  No one shall exchange through electronic communication networks any information falling under one of the following:

[1. Obscenity;

  1. Defamation;
  2. Stalking;
  3. Material harmful to children;
  4. Interference with network, data, or program;
  5. Gambling;
  6. Classified information;
  7. National security; and
  8. Any other information “aimed at or aiding or abetting a crime.”]

Section 2. As to Items 1 thru 6 of Section 1, Korean Communications Commission (“KCC”) may. . . restrict the exchange of that information pursuant to the review of the Korean Communication Standards Commission. . . [omitted]

Section 3. As to Items 7 thru 9 of Section 1, KCC must. . . restrict the exchange of that information pursuant to the review of the Korean Communication Standards Commission. . . upon request by a central government agency’s request. . .

What is more important, KCSC’s 9 members are all appointed by the President but 6 are nominated by the ruling party and 3 by the opposition.  KCSC censors both broadcasting and Internet.  Therefore, as any administrative body is, KCSC also suffers from the influences of the incumbents that impaneled it.  Should KCSC’s bias be allowed as a necessary evil in a democratically elected government or should it be subjected to heightened scrutiny than other administrative agencies?  If the latter is the case, why and which administrative agencies should be subjected to heightened scrutiny?

This paper is a constitutional evaluation of KCSC’s activities, including judicial review of KCSC’s actions, and it takes the Korea case as an example to propose a broader international consensus on what should count as impermissible “censorship”, in an answer to the above posed question.

 

2. Cases of Censorship

 The potential for abuse by the incumbent government reached a height in the Newspaper Advertiser Boycott case in 2008 where KCSC, through correction requests, deleted on July 1 at least 58 entries on an online bulletin board at www.daum.net/stopcjd through which a consumer boycott campaign against “pro-government” newspapers were being conducted.  It was one of the country’s most popular bulletin boards in 2008 with more than fifty thousand unique users enrolled and actively proposing and encouraging the boycott of those businesses advertising on the country’s top three newspapers (Chosun, Joong-ang, Dong-a, popularly called Cho-Joong-Dong) which had sharply criticized the beef import decisions of the previous progressive regime and were now supporting the conservative regime’s same decision.

KCSC’s novel theory was that, although consumer boycotts are normally protected under freedom of speech and therefore do not constitute a crime even if they produce the results unfavorable to the businesses targeted by the boycotters, the café users here, instead of boycotting the newspapers directly, boycotted their advertisers to pressure the newspapers, committing secondary boycotts banned in the U.S. and Australia.  Therefore, KCSC commissioners voting for the takedown argued, the entries fell under ‘information aiding and abetting a crime’ under Article 44-7 Section 1 Item 9 of the Information Communication Network Act, the crime being the secondary boycott activities.

Such takedown was later found to be baseless by courts, which were pulled in for the very reason that the administrative censorship tragically refused to remain administrative.  On August 29, 2008, the prosecutors indicted 24 citizens, arresting two of them, for operating the aforesaid Daum internet café[8], attaching a copy of KCSC’s decision to its arrest warrant applications.  It was the first time ever in Korean history and probably the world’s first prosecution of a non-violent consumer boycott, made possible by none other than KCSC’s takedown decision 2 months ago, which first introduced the aforementioned theory of secondary boycott, into the country.  In that case, the courts made it clear that KCSC’s rationale for criminalizing the Daum café was misplaced, by explicitly announcing that boycotting advertisers of a media agency is a legitimate form of consumer boycott against that media agency[9], and there is no such thing as ban on secondary boycott in the consumer context.[10]

In another high-publicity case in April 24, 2009, popularly known as the Waste Cement case, KCSC had deleted one Choi Byung-sung’s articles on his blog, exposing the environmental harms of cement manufactured in Korea.  Choi’s point in using the term “Waste Cement” was that, whereas all cement are manufactured using some construction waste material to increase strength, Korean cement has higher waste material content than foreign cement and therefore has higher asbestos content.  KCSC unbelievably decided that Choi’s coinage and other related articles were defamatory under Article 44-7 Section 1 Item 2 of the Information Communication Network Act.  KCSC turned a blind eye to all previous media reports that used the same term.  The courts again proved KCSC wrong in a subsequent lawsuit challenging the KCSC’s decision.[11]

How KCSC has survived the checks and balances of a modern democracy, making these unpopular and incorrect decisions will the subject of the next chapter.

 

3. Constitutional History

 KCSC is the successor of Korea’s strong tradition in Internet censorship which began in 1990s when the Ministry of Information and Communication (“MIC” later succeeded by Korean Communications Commission, which covers both broadcasting and internet) conducted broad censorship. Soon, such censorship was checked by the Korean Constitutional Court in Ban on Subversive Communication Case.[12] In June 1999, an article criticizing the then-President Kim’s military decisions in a recent skirmish with North Korea’s Navy forces, was deleted according to an order of MIC issued under the following provision:

 

Telecommunications Business Act[13] Article 53 (Regulation of Subversive Communication)

(1) A person in use of telecommunications shall not make communications of contents that harm the public peace and order or social morals and good customs.

(2) Contents deemed harmful to the public peace and order or social morals and good customs under paragraph (1), shall be determined by Presidential Decree.

(3) MIC may order a telecommunications business operator to refuse, suspend or restrict the communication under paragraph (2).

An operator failing to implement orders under the above provisions were to be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won[14].

In 2002, the Constitutional Court struck down the law above after making the following observations, which I think will apply to almost all administrative censorship schemes around the world:

 First, an administrative agency, MIC, directly regulates (the) contents of expression(s).

 Second, the legal structure of regulation forms a triangular relation linking MIC, telecommunication service providers, and telecommunication service consumers. While only the service providers are subject to the administrative disposition of the Minister and penal clauses, the consumers are the ones whose freedom of expression are abridged by such regulation in fact. . . Threats of criminal punishment are used to secure the effectiveness of the regulation for the freedom of expression. Since a consumer is only a third party and not the party directly receiving the administrative order, it will be difficult for him to participate at the administrative procedure or institute an administrative suit to seek relief for infringement of his basic rights.

 Third, the regulation restricts freedom of expression after publication. However, considering the power relation between the users and the telecommunication service providers and that between the providers and MIC, it is highly likely that the service providers would censor the consumers through the Terms of Use even when the Minister has not given any specific order on particular message(s). The user, in turn, would have to look out for oneself when using such service. In other words, this could substantially lead to ever-present self-censorship. (underlined by this author)

After making the last observation hinting at the Court’s concern with the potential for a prior censorship, the Court made the following decisions, which I choose to translate almost verbatim because it eloquently shows the formal requirement for the laws abridging free speech:

Article 53(1) ban on contents that could harm the public peace and order or the social morals and good customs violates the rule of clarity. . . The rule of clarity takes on an especially important meaning in legislation restricting the freedom of expression. In a democratic society, freedom of expression is an essential tool to realize the people’s sovereignty. Ordinarily, the freedom of expression functions to encourage exchange of diverse opinions, interpretations, and ideas among individuals and during the course, to verify validity of such expressions. Restriction of freedom of expression by an unclear statutory provision would bring about the chilling effect on constitutionally protected expression, and cause malfunctioning of this freedom. . . in order to restrict the freedom of expression, the requirement of the rule of clarity becomes even more demanding. Specific and clear stipulation of expression that would be subject to regulation is especially required for legislation regulating the contents of expressions like the instant provision.

“Harming the public peace and order or the public morals” is too unclear and ambiguous. Article 37(2) of the Constitution stipulates that the freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order or for public welfare, and Article 21(4) stipulates that speech or the press shall not undermine public morals or social ethics. Article 53(1) prohibits “communication harming the public peace and order or the public morals”. “The public peace and order” is almost identical to “national security” and “the maintenance of law and order” used in Article 37(2) of the Constitution, and “the public morals” is indistinguishable from “public morals or social ethics” stipulated in Article 21(4) of the Constitution, respectively. Such terms do not concretize the concepts used in the Constitution. The meaning of Article 53(3) of the Act is so unclear and abstract that it is rather a repetition of the Constitution stipulating the minimal condition of restriction of basic rights and the limits of freedom of speech and press.

While Article 53(2) of the same Act delegates the detailed rule-making . . .to a presidential decree, it is unpredictable from the statute itself how the presidential decree would define the subject of regulation. In other words, it does not inform citizens what types of communication would be prohibited. People may have vague ideas about what “public peace and order” and “public morals” may mean, but such ideas would be very subjective and would lead to different meanings for different individuals.

Of course, the necessity to employ indefinite concepts in legislation cannot be denied altogether, and use of such concepts as “public peace and order” and “public morals” are not always prohibited. Sometimes, use of such terms would be allowed in light of the legislative purpose, nature of legal relations subject to regulation, and related statutory provisions. However, it violates the rule of clarity required for.. . freedom of expression. . . to broadly regulate contents of expression using such vague notion as “harming public peace and order or public morals” without further details. This would be so even if Article 53(2) of the Act delegates the detailed rule-making to presidential decrees.

It would not be easy to legislate statutes that would be clear not to bring about “the chilling effect” …and at the same time effectively regulate what are clearly subversive communication.  While there may be diverse and divergent subjects of regulation, the state should not give up its pursuit to uphold the rule of clarity through individualization or categorization. If this is not possible, the state must choose under-regulation rather than over-regulation. There would be more to lose than to gain to limit expression who is not proven to be detrimental to the public good. This is the basic nature of the freedom of expression. (underlined by this author)

In addition, the Court then holds that “ambiguity, abstractness, and broadness of Article 53 inevitably results in regulation of communication that should not be regulated, and lead(s) to violation of the rule against excessive restriction” as well, and famously requires:

While restriction of circulation of expression to protect juveniles could be allowed, generally, suppression of materials should not be allowed unless the illegality is apparent from the material’s content itself or the detriment to the public good is obvious (i.e. child pornography, breach of national secrets, or copyrights violation).

As to protection of juveniles, the Court states:

Broadness of the concepts of “the public peace and order” or “the social morals” may lead to suppression of those expressions, for which it would be enough to prohibit access by juveniles. While it may be necessary to block teenagers from accessing provocative materials which may stimulate sexual desire of juveniles, prohibition of such expression or access by adults is not required as long as the materials are not obscene.

After warning that “unlike a totalitarian society, a democratic society does not believe that a state can do no harm”, the Court concludes with another famous passage:

 Unlike the broadcasting media, the Internet is the “most participatory marketplace”, or ”speech-enhancing media.”[15] Scarcity of radio wave frequencies, pervasiveness of broadcasts, and lack of control by recipients of information characterize the broadcasting media. Because of such characteristics, public responsibility and the public interest aspect have been emphasized for use of such media, and forceful regulatory measures that may not be applied to other types of media were justified. However, the Internet does not have equivalent characteristics: Entry barrier is low; Speech is interactive; Active and deliberative participation is necessary for using the medium. The Internet has become one of the largest and most powerful media, and the law-and-order-centered regulation of expression there would be detrimental to the promotion of freedom of expression. Technological advance on the media continue to widen the scope of freedom of expression and bring about changes in the quality of such expression. In this light, new regulatory measures within constitutional limits should be developed to keep up with the continuously changing environment in this field.

In response to this decision, the government went through a complete overhaul of the laws regulating the Internet.  In accordance with the Court’s request for clarity and “categorization”, the Network Act amended in 2007 now enumerates 9 different categories of illegal contents, some of which the Court itself enumerated as “the illegality is apparent from the material’s content itself.”  In place of the amorphous “subversive communication”, the clearer term “illegal content” took hold.

At the same time, the government created the twin tower of communication regulators, Korean Communication Standards Commission (“KCSC”) that conducts content regulation on Internet and broadcasting, and Korean Communication Commission (“KCC”) that, succeeding to MIC, administers technical regulation and everything else about communications industry, including distribution of government subsidies and incentives.  In an apparent attempt to make the content regulation more constitutionally agreeable, KCSC was set up as an entity that makes only rating or takedown decisions on broadcasting and Internet contents, which are then enforced by KCC on the penalty of incarceration and/or fines.[16]  On the Internet side, KCSC deliberates on whether the material falls under any of the 9 categories, and if the material does, KCSC decides on whether to take it down and KCC is supposed to enforce that takedown decision by issuing administrative orders to relevant intermediaries, who must comply or face punishment.

However, the nice noncuple (I had to look it up) categorization, aimed at clearer definition of what is illegal, turned out to be completely useless because KCSC did not use it at all.  In an apparently masterful sleight of hand during the 2007 overhaul, the government granted KCSC the power to make “corrective requests” as follows:

Act Establishing Korean Communication Commission[17]

Article 21 (Duties of Korea Communications Standards Commission)

Duties of the Korea Communications Standards Commission shall be as follows:

  1. Deliberation on matters falling under Article 32 of the Broadcasting Act;
  2. Deliberation and resolution on sanctions, etc. under Article 100 of the Broadcasting Act;
  3. Deliberation on matters falling under Article 44-7 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.; (This is where the 9-category deliberation of illegal content was supposed to be done.)
  4. Deliberation on information prescribed by Presidential Decree as necessary for nurturing sound communications ethics, from among information disclosed to the public and distributed via telecommunication lines, or requests for correction thereof;

As you can see above, KCSC does not have to use the detailed provisions in Article 44-7 in issuing “corrective requests”.  Instead, it can just resort to the amorphous standard of “necessity for nurturing sound communications ethics’ in deciding whether to take down certain postings.  Just imagine how freely this law will allow KCSC to censor even lawful contents.  Indeed, KCSC since 2002 has relied exclusively on “corrective requests” and has yet to make a single official take-down decision that triggers KCC enforcement!

This is not much improvement over “public peace and order” struck down as too unclear for a standard of speech regulation in the 2002 Subversive Communications Case.  Naturally, the constitutional challenges followed.  The challenges rather fatefully arose from the two most famous Internet censorship decisions of the time: the Newspaper Advertiser Boycott Case and the Waste Cement Case that I described in detail above.  Indeed, although KCSC did debate in both cases whether, and decided that, the relevant materials fell under Article 44-7’s Item 9 (“aimed at or aiding and abetting a crime”, which is in this case obstruction of business under Criminal Code 314 in the boycotter’s case) or Item 2 (defamation in the “waste cement” case), KCSC eventually chose to issue corrective requests supposed to be aimed at “nurturing of sound communications ethics” instead of issuing formal takedown decisions supposed to be aimed at “illegal content”.

In 2012, the Constitutional Court ruled on KCSC censorship in both cases and found the law constitutional, stating that Article 21 of the KCC Establishment Act which allows the issuing of corrective requests for the purpose of “nurturing of sound telecommunication ethics” was not vague.  Given the 2002 decision finding ‘public peace and order’ and ‘public morals’ vague, how the Court could find ‘sound telecommunication ethics’ not vague is only a mystery.  The Court supposedly engaged in “systematic interpretation” of the statute and stated that the law is not vague if interpreted systemically in light of other provisions, some of which were the results of the 2002 decision.  The Court said that one can anticipate that ‘promotion of sound telecommunication ethics’ is equivalent to the contents that are regulated by other provisions such as Article 44-7 housing the noncuple categorization, and therefore it does not violate the constitutional requirement of clarity.

This came as a surprise to all because all the difference between 2002 and 2012 was that between “public peace and public morals” on one hand and “sound communication ethics” on the other.  How could one be clearer than the other?  It is true that the 2002 decision made the legislature replace “subversive” with “illegal” but the same law still allowed KCSC to issue ‘corrective requests’ against contents supposedly harming “sound communication ethics”, not much clearer than “harming public peace and public morals (subversive)”.  Furthermore, KCSC has used this backdoor as its only weapon in censoring Internet content.  Why did the Constitutional Court not see that?

Maybe, it is because the posting criticizing the then President Kim Dae-jung in 2002 could not possibly be considered “illegal” whereas the postings calling for boycott of newspaper advertisers or pejoratively criticizing cement manufacturers could be at least strait-jacketed into some illegalities in 2012, although technically that should not and could not have affected the Constitutional Court’s evaluation, which was supposed to be on the text of the statutes not their interpretations.  In other words, the Constitutional Court may have thought ‘Hey, thanks to our decision 10 years ago, KCSC is groping for only those contents that can be as bad as illegal.  At least, KCSC is not groping for contents that are clearly legal like the critique on the President.’  The Court then may have thought, ‘KCSC is under control probably because our 2002 decision created this clearer concept of illegality together with noncuple categorizations and KCSC is using this new clearer standard as the measure of sound communication ethics anyway.’

Now, the Constitutional Court’s reasoning will be received well if KCSC really limits its reasoning only to illegal contents.  Whether KCSC does so will be the topic of the next chapter.  This is important because, otherwise, all the grand phrases of the 2002 decision were for naught and we are back to ground zero.

 

4. “Illegal Content?”

 Despite the Constitutional Court’s limiting approval in 2012, the biggest problem with KCSC continues to be, just as 2002, that censorship is not limited to the contents directly regulated by the statutory provisions.  What illustrates this point is that KCSC is still using the same or similar Deliberation Standards as the one that the pre-2002 MIC adopted and used.  There is a plenty of examples which you can find on my blog[18], and here is one for flavor:

Censorer’s Diary #26 June 7, 2012[19]

 The American cartoonist Reza Farazman’s <Little Hippo and Little Train>, a story of a hippo chasing after a crow who kidnapped his soul-buddy a train and finally ‘shanking’ the crow atop an oak tree http://poorlydrawnlines.com/comic/tiny-hippo-and-the-tiny-train/, curiously found many Korean fans who made hilarious parodies in Korean language http://blog.naver.com/PostView.nhn?blogId=veronica125&logNo=120154527599 , probably partially thanks to the cartoonist’s CCL policy, a serendipity to the Korean netizens routinely threatened with criminal prosecution for copyright violations.  (BTW, my favorite parody was the one where the oak ‘shanks’ the hippo and the crow.) One such Korean adaptation in the form of a video clip http://tvpot.daum.net/clip/ClipView.do?clipid=40697523 was taken down today on June 7, 2012 by the Korean Communication Standards Commission, not for copyright but for violence.  Again with no notice to the artist(s), who carefully synchronized an apparently original score to the animated version of the original cartoon and a lyric adapted from the cartoon’s captions and expanded to two verses.  Yes, this adaptor added one original cut that shows more blood.  See it for yourself. (The two characters are intended to be a translation of ‘shanking.’)

This Censorer wonders whose action is more violent.  KCSC or the hippo. At least the hippo did that for a reason that many other heroes in the movies and novels kill villains mercilessly and yet are celebrated for: vengeance for the loss of his/her loved one.  KCSC does not seem to have any valid reason.  The Korean Constitutional Court warned already twice in 2002 and 2012 that administrative censorship can target only “illegal” content and KCSC has yet to cite a statutory provision that the video clip violated.  What is more, the hippo at least does it in front of the crow whereas KCSC takes down the content without even notifying the poster.  (If you like the video, please download before it is too late!)

 There are other examples where postings are taken down even when their legality is apparent.  KCSC took down certain pages of an elementary student’s blog for describing an experiment whereby he tried to obtain propulsion for a projectile, using black powder.[20]  Other entries on the student’s blog showed that he had aspirations to become an astronaut or a space scientist.  His descriptions were very non-technical like cook books describing how many teaspoons of salt you need for a cup of soup.  KCSC decided to take down the blog pages, citing the Guns Swords and Explosives Control Act provisions requiring special licenses for handling the named articles and pointing out that the student did not have the requisite license.  However, these are experiments routinely done at schools without any license by teachers and students.  What is even more, the experiment failed! – meaning that there was no explosion or propulsion.  Also, a Tweeter account titled “2MB18NOMA” was blocked by KCSC for the reason that the title sounds like an epithet against the then President Lee Myung-Bak.  There was absolutely no statutory provision claimed by KCSC to have been violated by that Tweeter account.[21]  In July 2014, KCSC blocked the supposed photographs of the dead body of whom was identified as the owner of the Sewol ferry that sank tragically taking 300 or so lives[22] when many citizens angered by the state’s incompetent rescue efforts were also skeptical of the state’s investigations into the ferry’s owners and were exchanging opinions vigorously upon the photos that raised many questions than answered.[23]  An administrative lawsuit is pending on those blockings.[24]

 

 5. Due Process

Such illegal takedown of legitimate contents will not be so problematic if there are ways to challenge the takedown decisions.  Of course, one can go to court for such challenge but what is diabolical, is that internet contents are taken down without any notice of the take-down given to the authors of the postings, so that the posters cannot take any action to contest the takedowns before or after.  Only the intermediaries receive the notice — domestic internet companies housing the material in the case of “delete” requests, and telecoms in the case of “block” requests” issued against the contents on foreign Internet companies’ servers.  But, as is the case around the world, the intermediaries usually have not much incentive in fighting the takedown orders from the government.  The reality is that no intermediary has ever challenged KCSC’s decision in court, for the probable reason that they do not have much interest in individual postings but much reason not to irk the government officials, and a very few posters (less than a handful a year) have challenged it for the very reason that the posters are not notified of the KCSC’s hearing or decision.

The number of objections filed is very small compared to the number of takedowns, less than 0.01%, for the obvious reason that most people do not know when the takedowns take place.  Only a very small number of the people monitoring their postings constantly will have that luck.  The number is so small that KCSC’s statistics available on its website does not even include it.  (Actually, this is not surprising because KCSC does have the User Rights’ Division but the Division only maintains the stats on the people who filed complaints on the contents[25] as if the posters are not considered the “users”.)  This means that administrative censorship is conducted unchecked by any other entity.  EFF calls this aspect of KCSC “secret censorship.”[26]

Also, there are taken-down contents that the posters, properly notified, would have willingly modified thereby avoiding the take-down.  For instance, an entire blog maintained by a 70 year old man was shut down for the reason that, of about 132 entries, about 30% entries included contents honoring and encouraging North Korea.[27]  About 50% of the entries were the photos of his own grandchildren and his own paintings, the music files containing his own compositions and singings, and his cooking recipes, accumulated over 3-4 years in probably what people can naturally expect to be his biological final years.  Had he been notified, it is likely that he would have taken accommodative actions such as delete all pro-North statements in order to protect the legal contents or at least back-up all the blog contents.  Also, how far KCSC roams from the “illegality” deliberation that the Constitutional Court required in 2002 and hoped for in 2012, is shown clearly by a remark made by one of the Commissioners who spearheaded the takedown decision:  “You see, even those pictures of children must have been posted for a reason that we don’t know.  There must be something we do not see.”  Such Minority-Report-like remark will be only funny if KCSC would have given the 70 year old blogger a chance to explain himself before his entire blog is wiped out without any notice to him.

I promised to explain why KCSC exclusively uses “corrective requests” and do not make official takedown decisions.  The very reason is to avoid giving due process to the posters.  KCSC is required to give the posters and intermediaries notice and a hearing before taking the official disciplinary action[28] and KCC is required to give another set of notice and a hearing before enforcement.[29]  As long as the intermediaries are compliant as they are now, KCSC can bypass all of these procedural safeguards and take down clearly legal contents without any opposition by holding deliberation meetings freely outside the eyes of the person most interested in that decision: the poster of the material.

 

6. Is Administrative Censorship Per Se Evil?

 The central pillar of KCSC censorship is the fact that intermediaries comply with “corrective requests”.  If they do not, KCSC will be forced to issue official takedown decisions, which will require giving the posters due process.  Even if 1% of the people noticed choose to appear, about 1,000 people will show up each year for hearings, slowing down the process considerably.  What is more, they will challenge, possible with their lawyers, KCSC’s extra-legal standards that the Constitutional Court warned against twice already.  So why do intermediaries comply?  Or does the fact that the entire phenomenon is “voluntary” on the part of intermediaries exonerate KCSC?  The U.S. Supreme Court did not think so in Bantam Books v. Sullivan, which is read more convincingly in its successor’s description in Alexander v. United States[30]:

It is a flat misreading of our precedents to declare as the majority does that the definition of a prior restraint includes only those measures which impose a “legal impediment,” ante, at 2771, on a speaker’s ability to engage in future expressive activity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963), best illustrates the point. There a state commission did nothing more than warn book-sellers that certain titles (already being sold on market) could be obscene, implying that criminal prosecutions could follow if their warnings were not heeded. The commission had no formal enforcement powers, and failure to heed its warnings was not a criminal offense. Although *571 the commission could impose no legal impediment on a speaker’s ability to engage in future expressive activity, we held that scheme was an impermissible “system of prior administrative restraints.” Ibid. There we said: “We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief.” Id., at 67, 83 S.Ct., at 637–638..(parenthesis and italics added by this author)

Then, is KCSC unconstitutional?  The Korean Constitution, as many other countries’ bans “censorship” yet Korean courts have defined only pre-publication review as censorship.  Such definition is too restrictive and not sufficiently protective of free speech.  In the U.S., “prior restraint”, the American term for censorship, did include not only pre-publication review but also post-publication review conducted by administrative bodies in Bantam Books although its meaning has been quite limited by Alexander.[31] Such administrative review has been constitutionally permitted only if and when it was followed by expeditious judicial review (maybe as expeditious as within two days)[32] or its scope of discretion was severely limited to specific subject areas such as commercial speech.[33] Going against this flow, Korean courts strictly limit the application of its censorship jurisprudence only to licensing schemes, and therefore have allowed KCSC.  Indeed, there are other administrative bodies in Korea responsible for post-publication review specializing in different standards and media.[34]

I believe that administrative censorship, even if exercised post-publication, should be deemed to be censorship and therefore be banned for the following reasons:

Firstly, the administration, almost by definition, does not have the final authority and its decisions always subject to the risk of reversal as the result of subsequent judicial review.[35] The fact that one can be disciplined by an administrative body without and before judicial review naturally causes a chilling effect on the supposed speaker.  One may argue that, thus defined, any administrative action such as Food and Drug Administration finding a certain drug dangerous will also have chilling effects on drug manufacturers.  However, being chilled from engaging in physical actions by administrative intervention (e.g. jaywalking stopped by a police officer) is different from being chilled from speaking, only the latter of which has been considered a constitutional evil.  The refrain “chilling effects” exists only in free speech jurisprudence for a reason.[36]

Secondly, the administrative bodies will show bias in favor of the government in disputes concerning the government itself, much more so than the judiciary.[37]  The administrative censoring body is not a disinterested party in censorship decisions on the contents, say, critical of the government.  We have seen above how KCSC uses its willy-nilly standard in favor of the government and the cement companies.

Thirdly, administrative bodies usually have the ability to retaliate through other means such as industrial subsidies, licensing schemes, or awards.[38]

Overall, actually, at least four Supreme Court Justices will agree with this author’s position on administrative censorship as they said in Alexander:

As governments try new ways to subvert essential freedoms, legal and constitutional systems respond by making more explicit the nature and the extent of the liberty in question. First in Near, and later in Bantam Books and Vance, we were faced with official action which did not fall within the traditional meaning of the term prior restraint, yet posed many of the same censorship dangers. Our response was to hold that the doctrine not only includes licensing schemes requiring speech to be submitted to a censor for review prior to dissemination, but also encompasses injunctive systems which threaten or bar future speech based on some past infraction.

Also, in France, HADOPI was one of these censorial administrative bodies for copyright protection purposes only, but after the 2009 unconstitutionality decision of the Constitutional Council[39], HADOPI’s decision attains force only after court approval.  The Council had said that “basic rights infringement can take place only through a court of law.”  In 2014, the Philippines Supreme Court also analogized administrative take-downs to search and seizure and ruled that administrative takedowns violate the warrant doctrine.[40] Also, the number of specialized internet censorship bodies is enlighteningly small, e.g. Korea’s KCSC, Turkey’s Information Communications Technology Authority (“ICTA”)[41], Australia’s ACMA.

 

7. Conclusion

Of course, as related above, administrative censorship itself is the least of worries in Korea.  Even if we accept administrative censorship, we cannot accept the two aforementioned problems poisoning the Korean system: (1) that censorship is committed many times upon contents that will be deemed clearly legal in courts of law; and (2) that censorship takes place without giving any notice before or after the censorship decision, leaving the censored person no chance to contest or participate in that decision in court or otherwise.

However, it will not take case studies of many countries to realize that administrative censorship is a constitutional evil that should be banned and that the aforesaid problems are merely the fruits of a poisonous tree.

 

Bibliography 참고문헌

 

Martin H. Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory, 70 Va. L. Rev. 53 (1984)

William T. Mayton, Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, andthe Costs of the Prior Restraint Doctrine, 67 Cornell L. Rev. 245 (1982)

Henry P. Monaghan, First Amendment “Due Process,”83 Harv. L. Rev. 518 (1970)

황성기, 사이버스페이스와 불온통신규제, 「사이버스페이스에서의 기본권」, 한국헌법학회 제12회 헌법학술발표회 발표집, 2000.5.27.

이인호, 표현의 자유와 검열금지의 원칙-헌법 제21조 제2항의 새로운 해석론, 법과 사회 제15호 (1997)

황승흠, 사이버 포르노그래피에 관한 법적 통제의 문제점-전기통신법 제48조의 2를 중심으로, 정보와 법 연구 창간호, 국민대학교 정보와 법 연구소, 길안사 (1999)

박경신, “사전검열 법리와 정보통신윤리위원회의 활동: 법과학적 방법으로”, 인권과 정의 2002년 8월호.

2008년11월11일 방송통신심의위원회 주최 국제컨퍼런스 “내용규제 패러다임의 변화와 향후규제” 자료집

김성천(책임), 황창근, 지성우, 최경진 공동연구, “방송통신심의규정 개선방안에 관한 연구”, 방송통신심의위원회 발주용역 2009년9월

박경신, “방송통신심의위원회의 인터넷내용심의의 위헌성”, 한양대학교 법학논총 제27집 제2호 65-99쪽 (2010년 6월)

 

Abstract

 

Korean Communication Standards Commission is one of the few administrative bodies around the world empowered to block or delete contents on Internet like ACMA of Australia, ICTA of Turkey, etc.  This paper evaluates KCSC’s structure and actions and follows judicial discourse over the agency’s validity.  It discovers the surprising features such as the fact that its standard of review are not the lawful/unlawfulness of the contents but rather the soundness/unsoundness, whose lack of clarity borders on upon unconstitutionality.  Also, KCSC’s decisions are not notified to the posters whose contents are taken down by KCSC, insulating its actions from any appeal or judicial review.  However, both of these features are triggered by the agency’s desire to take actions free from constitutional constraints through the form of “corrective requests”, a desire identified long ago by free speech scholars as the reason for frowning upon administrative censorship even if it takes effect post-publication.  In the wake of French Constitutional Court’s HADOPI decision and Philippine Supreme Court’s recent decision on administrative censorship, this paper proposes a discussion toward an international consensus on broadening the concept of censorship to include post-publication administrative censorship.

 

Key Words:  censorship, administrative censorship, prior restraint, Korean Communication Standards Commission, HADOPI, Internet

 

요약

 

방송통신심의위원회는 호주의 ACMA나 터키의 ICTA와 같이 인터넷 상의 콘텐츠를 차단 삭제할 권한이 주어진 행정기구이다. 이 논문은 KCSC의 구조, 결정 특히 이 기관의 합법성에 대한 사법적 논의를 추적한다. 그 추적을 통해 이 기관의 심의기준이 불법성이 아니라 건전성으로서 명확성의 부재로 인한 위헌성의 위험이 있으며, 이 기관의 결정들이 그 결정에 의해 자신의 게시물이 차단 삭제 당하는 당사자에게 통보되지 않아 그 결정에 대한 항소나 사법적 통제가 불가능하다. 하지만, 이 두 가지 특징은 역시 이 기관이 “시정요구”라는 도구를 통하여 헌법적 규율을 피해 자유롭게 결정을 내리고자 하는 욕망의 반영이다. 이 욕망은 이미 오래전부터 행정심의에 대해 경계심을 보여왔던 표현의 자유 학자들에 의해 밝혀졌던 것이다. 최근 프랑스헌법위원회와 필리핀대법원이 행정심의에 대해 내린 위헌결정에 즈음하여 이 논문은 검열의 범위를 넓혀 ‘출판후 행정검열’도 포함한다는 국제적 합의를 향한 논의를 제안한다.

 

색인어:  검열, 행정검열, 사전제재, 방송통신심의위원회, HADOPI, 인터넷

 

 

[1] The Internet Sub-Committee draws 5 Commissioners (three from the ruling party, and two from the opposition) and meets twice every week to deliberate upon 1,000-2,000 websites, webpages, or social media accounts.  About 40 people are dedicated to reviewing and preparing the material to be deliberated upon so that the Commissioners on the can decide on them efficiently: less than a split of a second spent on each material.

[2] Available at http://www.kocsc.or.kr/02_infoCenter/info_Communition_List.php [in Korean].

[3] Even this number is on the increase.  The current number is the result of gradual increase from from the previous Lee Myung-Bak’ tenure when KCSC issued more than 32,640 corrective requests for about 1.5 year period between May 2008 and December 2009.

[4] http://www.acma.gov.au/

[5] Interview with ACMA official Jeremy Fenton on November 2013.

[6] ACMA Annual Report 2009-2010, Chapter 2, Page 87.

[7] https://elaw.klri.re.kr/kor_service/lawPrint.do?hseq=18719

[8] A group of web pages maintained by the users of the internet portal Daum where the café participants could upload and download information for other café participants.

[9] Seoul Central District Court, February 19, 2009 Judgment, 2008Godan5024.

[10] Unfortunately, in the same decision, all 24 boycotters received a guilty judgment, which was affirmed through the highest court, for a mysterious reason that the phone calls were too numerous and verbally abusive when the operators were charged merely with operating the café, not with making those phone calls.  This judgment was affirmed through the highest court.

[11] Seoul Central District Court, February 11, 2010 Judgment, 2009 Guhap35924; Seoul High Court, May 3, 2012 Judgment, 2010Nu9428

[12] 14-1 KCCR 616, 99Hun-Ma480, June 27, 2002

[13] wholly amended by Act No. 4394 on August 10, 1991

[14] Article 71 (Penal Provisions)

[15] The phrases are quoted from Reno v. ACLU, 521 U.S. 844 (1997)

[16] KCC Establishment Act, Article 73

[17] https://elaw.klri.re.kr/kor_service/lawPrint.do?hseq=28155

[18] http://blog.naver.com/kyungsinpark/  Look under “English”.

[19] http://blog.naver.com/kyungsinpark/110140161605

[20] http://blog.naver.com/kyungsinpark/110137736421

[21]Harlan, “In S. Korea, A Shrinking Space.” See also, Louisa Lim, “In South Korea, Old Law Leads To Crackdown,” National Public Radio (NPR), December 1, 2011, http://www.npr.org/2011/12/01/142998183/in‐south‐korea‐old‐law‐leads‐to‐new‐crackdown

[22] http://transparency.or.kr/cases/977

[23] http://www.business-standard.com/article/news-ians/cause-of-south-korean-ferry-owner-s-death-not-clear-114072500343_1.html

[24] http://opennet.or.kr/7734

[25] http://www.kocsc.or.kr/02_infoCenter/info_UserTrand_List.php

[26] https://www.eff.org/deeplinks/2011/08/south-korea-only-thing-worse-online-censorship

[27] http://blog.naver.com/kyungsinpark/110117052953

[28] KCC Establishment Article 25

[29] Network Act, Article 44-7, Paragraph 4

[30] 509 U.S. 544 (1993)

[31] Bantam Books, Inc. v. Sullivan – 372 US 58 (1963)

[32] Kingsley Books v. Brown, 354 U.S. 436 (1957)

[33] Pittsburg Press v. Pittsburg Human Relations Commission, 413 U.S. 376 (1973)

[34] Korea Publication Ethics Commission (books), Youth Protection Commission (rating adult material, located within the Ministry of Women and Families).

[35] Martin H. Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory, 70 Va. L. Rev. 53 , 58 (1984)

[36] “The Chilling Effect in Constitutional Law”, 69 Columbia Law Review 808 (1969) citing Malone v. Emmett, 278 F. Supp. 193, 200-01 (M.D. Ala. 1967) which said:

The Supreme Court in Zwickler, as this Court in Davis did, places free speech and other First Amendment rights in a special category. In this connection see Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. In recognizing and emphasizing this ‘scale of constitutional values,’ on which First Amendment rights enjoy a position at the highest level, the Supreme Court in Zwickler stated:

‘These principles have particular significance when, as in this case, the attack upon the statute on its face is for repugnancy ot the First Amendment. In such case to force the plaintiff*201 who has commenced a federal action (at a time when no state court proceedings are pending) to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect.’

 

[37] William T. Mayton, Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine, 67 Cornell L. Rev. 245, 250 (1982)

[38] Henry P. Monaghan, First Amendment “Due Process,”83 Harv. L. Rev. 518, 522-23 (1970)

[39] http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc.pdf

[40] http://www.rappler.com/nation/special-coverage/cybercrime-law/51197-full-text-supreme-court-decision-cybercrime-law

[41] http://eng.btk.gov.tr/