Open Net’s input for UN’s report on Internet Shutdown

Input for the Report on internet shutdowns and human rights from OPEN NET

Open Net, a digital rights organization based in South Korea and operating broadly in the Indo-Pacific region, would like to comment on the occurrence of mandated disruptions of communications.

<The occurrence of mandated disruptions of communications>

On December 13, 2021, the Korea Communication Standards Commission (KCSC) issued a ruling to block in-Korea access to womenonweb.kr, a website that provides information on women’s health, sexual and reproductive rights, medical abortion, and thereby helps women to obtain safe, timely and affordable abortion care, charging that the website facilitates sale of unprescribed drugs by non-pharmacists.  The ruling to block the website follows a similar ruling on womenonweb.org that was issued on March 11, 2019.

The law comprehensively banning abortion was held ‘nonconforming to the constitutional’ as late as April 2019 for infringing women’s right to self-determination and the court ordered a new law to be legislated in place by the end of 2020, after which the old law becomes immediately void.  To date, no replacement law has been enacted. During the tenure of the past restrictive abortion law, abortion by medication or equivalently “medical abortion” or the information about it was not readily available in Korea and no abortion medication had been approved for use by the authorities such as Korea’s Food and Drug Agency (KFDA). In that legal environment, Women On Web’s website had played an instrumental role in educating women on the availability of medical abortion and therefore informing women’s decisions on their health and reproductive rights, especially in dire need during the limited medical resources during the pandemic. This ruling impoverishes Korean women in need of abortion economically and physically by ensuring Korea women from accessing vital health information.

The ruling is excessive. KCSC has shut down the entire site, despite only some of the content failing its standard, simply for the reason that it is not technically feasible to block individual web pages. However, Women On Web’s sites have provided not only information about abortion, but broadly about women’s sexual rights and reproductive rights, a topic in need of attention in the Korean society due to the law making abortion a legal taboo. Even the information on abortion offers more than just resources to the pills: it also provides useful information on medical abortion that is a safe and highly effective regimen supported by major medical organizatios such as the World Health Organization. When medical abortion is a modern, widely-used procedure and the medicines are on the World Health Organization’s list of essential medicines, obtaining the necessary medication from non-phamarcists is not an universally condemned act. Prohibiting Korean women from accessing the information about medical abortion merely because other information on the same website implicates local phamarcy law infringes women’s sexual and reproductive rights.

Furthermore, the ruling may be unlawful under the positive law: the abortion pills may not be delivered to a place within Korea. In such cases, the transaction does not take place within Korea and therefore is not subject to the strictures of Korea’s law of medicine, just like making a roundtrip purchase over the border to obtain the medication. Blocking the entire website based merely on a possibility that a single page on the website may assist a possible Korea-bound delivery is clearly excessive and unlawful. Finally, Korea’s pharmacy law regulates only “sale”, but Women On Web does not accept any payment for provision of the pills. Women may make voluntary donations of the amounts of their choice which are not used to defray the cost of procuring the pills but only maintaining and supplying the information.

KCSC has maintained that they are an expert entity independent of other administrative agencies, the government, power groups, and ideologies. However, KCSC mechanically followed KFDA’s request without deliberating on the social context in which the information was sought for by women, even at the height of the intense constitutional litigation on the abortion law back in 2019. KCSC’s decision belied its claim to expertise on governance of online communication space. It is for this very reason that only a very small number of countries, like Turkey, exercise administrative censorship on the internet, and Korea is even the rarer case where the laws enforced by the online censorship span almost all the laws in the book, including the pharmacy law (compare to 9 categories of law enforced by Turkey’s ICTA).

KCSC shut down the website to shut down distribution of the abortion pills supposedly threatening women’s safety. However, its ruling is making women more vulnerable, who are now forced to resort to the black market at high costs. A policy decision on whether to allow medication abortion has been delayed for a prolonged period during which women in time-sensitive circumstances were the biggest victims.

Many digital rights and women’s rights organizations express disappointment at KCSC’s unprofessional and irresponsible ruling.  They express solidarity with women who are at the risk of being deprived of autonomy. They demand that women’s access to information be respected so as to guarantee their sexual and reproductive rights. Open Net has organized a suit to challenge KCSC’s decision in Administrative Court which the digital/women’s rights organizations have supported, prepared to be filed mid-February.

In 2018, KCSC also blocked an interactive file-sharing website 4Shared.com for contributing to copyrights infringement when it has faithfully followed the notice-and-takedown process whenever rightsholder merely for reasons that many infringing but previously unnoticed files were found on the website. Millions of users in Korea sharing lawful files were blocked access.

The fundamental problem with KCSC is that it is an administrative entity forcing its value systems on the communicative life of people without judicial approval and is therefore bound to end up becoming majoritarian censorship on people’s communicative life. It is one thing to decide by a majority vote who can sell abortion pills but quite another to decide likewise what information people can access about sale of abortion pills. Please see this article http://old.opennetkorea.org/en/wp/administrative-censorship. The U.S. Supreme Court in Bantam Books v. Sullivan (327 U.S. 58 (1963)) made clear the dangers of such administrative censorship. Furthermore, KCSC is empowered not just to take down unlawful information but take down “what is necessary for nurturing sound communication ethics” as stated in its parental law Korean Communication Commission Establishment Act Article 21 Item 4. Under that scheme, KCSC has taken down many contents and blocked many websites clearly identifying exactly which law the contents or websites have violated. When they block interactive websites like womenonweb.org or 4Shared.com, they cause all the harms of internet shutdown.

Therefore, it is important that the UN mandate on freedom of expression perceives this nexus between content moderation and internet shutdown, and how the first can replicate the harms of the latter.

Please do not hesitate to write us for any question.  Executive Director, Kyung Sin (“KS”) Park will be the point of contact at kyungsinpark@korea.ac.kr.