Open Net to National Assembly: The two proposed amendments to the Act on Promotion of Information and Communications Network Utilization and Information Protection(regulation on false information and video) is unconstitutional

The partial amendment bill to the 「Act on Promotion of Information and Communication Network Utilization and Information Protection」 (introduced representatively by Park Sung-jung, Bill No. 2125438) prohibits the distribution of “information with false content that publicly reveals false facts to damage others” and “information that edits, compiles, or processes photographs, videos, or audio recordings of a person’s face, body, or voice against the will of others,” and punishes violators with imprisonment for up to seven years, disqualification for up to 10 years, or a fine of up to 50 million won.

Such regulations already exist to criminalize the dissemination of false information that is defamatory to another person or the publication of false statements about a candidate that could influence an election. However, regulating and criminalizing information solely because it is a false statement about someone without any other harm is likely to violate freedom of expression in violation of the constitutional principle of excessive funding.

“Photographs, videos, or audio recordings of a person’s face, body, or voice” can include any content in which a person’s body or voice appears, so almost any video or audio content can be covered, and all video or audio content can be subject to partial editing, time and sequence editing, etc. unless the entire original is posted subtitles and image processing, so not only deep fakes but also all video and audio content posted without prior permission from the performer can be regulated as “information edited against the will of others,” which violates the constitutional principle of excessive funding and infringes on freedom of expression.

These regulations are particularly likely to be abused by public figures to suppress critical media coverage of public figures as “malicious editorializing,” or to regulate citizens’ expression, including parodies and satire, as a means of shutting down critical public opinion against them.

The amendment should be struck down as an unconstitutional bill that grossly infringes on freedom of expression and provides for excessive criminal penalties in violation of the constitutional principles of clarity and overbreadth.

The bill to amend the Act on Promotion of Information and Communication Network Utilization and Information Protection (introduced by Representative Yoon Doo-hyun, bill no: 2124795, hereinafter referred to as the “Amendment Bill”), (1) includes falsified information as illegal information that is prohibited from being distributed in the information and communication network, making it subject to a denial, suspension, or restriction order (hereinafter referred to as a “restriction order”) of the Korea Communications Commission and a request for correction by the Korea Communications Review Commission; (2) imposes an obligation on information and communication service providers to prevent the distribution of falsified information as prescribed by presidential decree; and (3) requires a person who recognizes that falsified information infringes on the rights of others, If the rights of others are infringed by false manipulated information, anyone who is aware of the infringement can request the deletion of the information and the posting of refutations; (4) If the information and communication service provider fails to take measures to prevent the above distribution, the NCC can issue an action order; and (5) The act of posting false manipulated information through macro programs is prohibited and subject to criminal punishment (Article 2, Article 44(7) and 44(11), Article 74(1), etc.).

The proposed amendment defines ‘false and manipulative information’ as ‘information that is manipulated to mislead the public into believing that it is accurate through falsehood or distortion’. However, “distortion,” “misleading,” and “manipulation” are very abstract and unclear concepts, and using them as the basis for regulation is likely to lead to overregulation that violates the constitutional principle of clarity and infringes on freedom of expression. For example, information that has been partially edited may be deemed “manipulated” or “distorted” depending on the judge, and parodies, satire, etc. may be subject to regulation because some readers may mistake them for facts.

These unclear definitions do not provide clear standards for the public as the subject of expression, for ICT service providers to fulfill their monitoring and removal obligations, or for national authorities to determine whether operators have violated their obligations and impose fines. Furthermore, these unclear and abstract standards are subject to arbitrary interpretation and are at high risk of being abused by authorities.

In other words, the regulation defining “false and manipulated information,” which is the subject of this amendment, does not have the clarity that regulations restricting freedom of expression and penalties should have and therefore violates the constitutional principle of clarity and the principle of excessive funding, which violates freedom of expression.

It can be very difficult to distinguish whether a statement is opinion or fact, and the determination of whether a statement is false or true can change over time. In addition, the existence of a fact may be difficult to prove or may be manipulated or concealed by the party with the evidence. If the claimant of a fact is unable to prove the existence of that fact at the time, it may be categorized as ‘false’ and there is a high risk that even potentially true content may be regulated improperly. Therefore, expressive behavior should not be regulated improperly based on the ‘falsity’ of the content.

In addition, the main purpose of this amendment is to include falsified information as ‘illegal information’ that is prohibited from being distributed on the information and communication network, making it subject to restriction orders by the NCC and correction requests by the NCC (Article 44(7)), and to authorize the NCC to order the information and communication service provider to fulfill its obligation to take measures if it fails to take measures by the permanent measures prescribed by presidential decree or the report of a sign (Article 44(11)).

However, when an administrative agency determines what is ‘false’ and what is ‘true’ before the judiciary, and then decides and enforces whether or not to allow or distribute expression based on that, it is no different from the ‘censorship’ of expression that the Constitution sought to prevent. State censorship of expression is taboo in democracies due to its potential to be abused as a means of blocking and suppressing dissent, and this bill is highly anti-democratic.

Currently, false information that defames others is illegal and is blocked from circulation through the CRTC’s deletion and blocking correction request system and the portal’s temporary measure (takedown) system. This too has been controversial for its unconstitutionality as it preemptively infringes on freedom of expression before the illegality of falsehood and defamation has been determined by the judiciary. However, this amendment goes further and allows ‘anyone’, not just the ‘infringed person’, to request the removal of ‘false and manipulated information’ that infringes on the rights of others and obliges the information and communication service provider to take action accordingly. There is a high risk that this could be abused by politically and economically powerful individuals with the capital to use advocacy groups and marketing companies to control public opinion critical of them.

The amendment should be repealed as an unconstitutional and anti-democratic bill that grossly violates freedom of expression and the right to know in violation of the constitutional principle of clarity and in violation of the principle of excessive funding.