Open Net opposes MP Yoon Moon-Seok’s bill to put online news curation under “fairness” review

1. Highlights of the revision

The amendment aims to prohibit internet news service providers from “deliberately manipulating article arrangements in ways that harm the fairness and objectivity of journalism. Violations may result in fines of up to 20 million KRW under Article 39(1)(2) of the Act.

2. Constitutional Concerns

The arrangement of news articles is essential to the operations of Internet news service providers, constituting an editorial right and a component of the freedom of the press and expression. Restricting this infringes on freedom of expression.

The constitutional principle of clarity demands precision in regulations, especially when restricting freedom of expression. Abstract terms like “fairness” and “objectivity” are too vague and subjective to serve as appropriate standards for regulation. This vagueness opens the door to arbitrary interpretation and application, risking undue infringement on freedom of expression. It is practically impossible to balance all perspectives equally in news coverage, yet providers could face fines for failing to meet subjective standards of “fairness.”

As the government is the body enforcing penalties for violations, such regulations could be exploited for political purposes, suppressing dissenting media and fostering state control over journalism. The regulation could lead to disputes over fairness, politicization of media oversight, unnecessary political conflicts, and increased public division.

In the U.S., the “Fairness Doctrine” for broadcast media was abolished in 1987 for its chilling effect on press freedom and its encouragement of self-censorship. Similarly, a recent U.S. Supreme Court decision (July 2024) invalidated laws restricting platforms’ editorial discretion, highlighting that such measures can amount to unconstitutional state censorship. The amendment’s parallels to these repealed laws underscore its unconstitutionality.

Article arrangement, whether algorithm-driven or manual, inherently reflects the service provider’s editorial intent. Thus, all such actions could potentially be classified as “deliberate manipulation,” leaving no meaningful limitations on the scope of the regulation.

3. Conclusion

The proposed amendment’s vague and subjective criteria of “fairness” and “objectivity” violate the constitutional principles of clarity and proportionality, infringing on freedom of expression and press. The amendment poses significant risks to democracy and must be discarded as an unconstitutional and overly restrictive measure.

Korean version text