[governance] South Korean Constitutional Court declares Internet "Real Name Policy as Unconstitutional"

Tue Aug 28 18:07:45 EDT 2012

Dear Fahd,

Caveat being that I have not seen the Judgment, however, based on the
Report in the media, this is a win for civil society in South Korea in that
privacy and freedom of expression is protected.

As for its evolution (comments from an outsider looking in), I would assume
that their constitution is supreme law and therefore in overruling
arbitrary legislative provisions where such inconsistencies clash with
human rights provisions inspire confidence within the community and also is
an excellent stimulus for the business environment especially foreign
investors etc in that the judicial system is independent from its
legislative body.

It follows therefore that even if arbitrary legislative mechanisms
pertaining to the Internet were instituted threatening things like privacy
and freedom of expression, that they can be subject to judicial review or
constitutional redress.

That being said, you are right Fahd in wondering how it will evolve because
if the Entertainment Industry and politicians become subject to the
watchful eye of the wonderful Korean people, the real test is maintaining
would be the separation of powers.

I understand that there are some who may think what "Separation of Powers"
and the "Rule of Law" have to do with an open and free internet - I would
say virtually alot. Consider the example that Fouad posted not too long ago
in relation to the a Politician in Pakistan arbitrarily exercising his
power and exerting his influence on the Regulators who had to "censor"
content.

Thoughts from the far seas,
Sala

On Wed, Aug 29, 2012 at 5:49 AM, Fahd A. Batayneh
<fahd.batayneh at gmail.com>wrote:

> Quite an interesting move by the Korean government. I wonder how it will
> evolve on the long run.
>
> Fahd
>
> On Sun, Aug 26, 2012 at 4:27 PM, Salanieta T. Tamanikaiwaimaro <
> salanieta.tamanikaiwaimaro at gmail.com> wrote:
>
>> Source:
>> http://english.khan.co.kr/khan_art_view.html?artid=201208241354087&code=790101 accessed
>> 27/8/12
>>
>>  Internet "Real Name" Law Violates the Constitution, Of Course
>> Posted on : 2012-08-24 13:54
>>
>>    - Zoom
>>    -
>>    <http://english.khan.co.kr/khan_art_view.html?artid=201208241354087&code=790101>
>>    -
>>    <http://english.khan.co.kr/khan_art_view.html?artid=201208241354087&code=790101>
>>    - l
>>    - <http://english.khan.co.kr/khan_art_view.html?artid=201208241354087&code=790101>
>>    - l
>>    -  <http://english.khan.co.kr/khan_art_list.html?code=790101>
>>    - l
>>    - <http://me2day.net/posts/new?new_post[body]=%22Internet+%26quot%3BReal+Name%26quot%3B+Law+Violates+the+Constitution%2C+Of+Course%22%3Ahttp%3A%2F%2Fenglish.khan.co.kr%2Fkhan_art_view.html%3Fartid%3D201208241354087%26code%3D790101&new_post[tags]=khan>
>>    - l
>>    - <http://twtkr.com/index.php?status=Internet+%26quot%3BReal+Name%26quot%3B+Law+Violates+the+Constitution%2C+Of+Coursehttp%3A%2F%2Fenglish.khan.co.kr%2Fkhan_art_view.html%3Fartid%3D201208241354087%26code%3D790101&link_source=khan>
>>    - l
>>    - <http://english.khan.co.kr/khan_art_view.html?artid=201208241354087&code=790101>
>>    - l
>>    - <http://www.facebook.com/sharer.php?u=http%3A%2F%2Fenglish.khan.co.kr%2Fkhan_art_view.html%3Fartid%3D201208241354087%26code%3D790101&t=Internet+%26quot%3BReal+Name%26quot%3B+Law+Violates+the+Constitution%2C+Of+Course>
>>
>> The Constitutional Court has decided that the Internet "real name" policy
>> is unconstitutional.
>>
>> The judges unanimously voted that clause 5 of article 44 in the Act on
>> Promotion of Information and Communications Network Utilization and
>> Information Protection, which requires websites with more than an average
>> of 100,000 visitors a day to verify the real name of the user when the
>> person posts on the website, violated the Constitution.
>>
>> We welcome the court's decision to protect the freedom of speech by
>> abolishing this anachronistic regulation.
>>
>> The court ruling was mainly supported by the fact that the real name
>> policy infringes the users' right to free speech and to determine personal
>> information, along with the operators' freedom of speech. The court pointed
>> out, "If we are to restrict freedom of expression, public interests we
>> would thereby acquire must be clear.
>>
>> On August 23 at the Constitutional Court, the judges are seated to
>> announce their decision that the Internet real name policy is
>> unconstitutional. From the left are the justices, Lee Jung-Mi, Song
>> Doo-Hwan, Lee Dong-Heub, Kim Jong-Dae, Lee Kang-Kuk, Min Hyeong-Ki, Mok
>> Young-Jun, Park Han-Chul. Yonhap news
>>
>>
>> We have yet to see a sharp decline in illegal postings, and with users
>> fleeing to overseas websites, the policy has caused reverse discrimination
>> between domestic and overseas businesses. Taking these factors into
>> consideration, it is difficult to say that we have contributed to public
>> interest."
>>
>> Apparently, the court has agreed with most of the arguments made by the
>> civic society in their efforts to abolish the real name system.
>>
>> The real name policy was introduced in 2007 to prevent harmful
>> consequences of vicious comments made anonymously. Originally, it was
>> targeted to websites with more than 300,000 visitors a day, but in 2009 the
>> number was lowered to 100,000 visitors, forcing most major websites to
>> follow the policy.
>>
>> However, people criticized the system, questioning its effectiveness and
>> claiming that it only obstructed free speech. As a series of large scale
>> hacking incidents occurred at sites run by Auction, SK Communications, and
>> KT, people pointed out that the policy only encouraged leaks in personal
>> information.
>>
>> Since the candlelight rallies, the Lee Myung-bak government has
>> constantly tried to put a gag on the Internet by reinforcing the real name
>> system and by arresting the Internet columnist known as Minerva. They
>> claimed that they were preventing libel, but underneath their claims is an
>> anti-democratic mind that is trying to muzzle unfavorable press coverage.
>>
>> Why else would *The New York Times* point out, "Online anonymity is
>> essential for political dissidents... and for corporate whistle-blowers,"
>> criticizing Korea's real name policy last year?
>>
>> Hiding behind online anonymity and spreading false rumors or slandering
>> someone with abusive words is clearly an act of violence. However, the
>> court's decision has confirmed that implementing a real name policy to
>> control these actions is like burning the house down to roast the pig.
>>
>> Some are concerned that this decision may have side effects, such as the
>> defamation of celebrities online. However, these wrongdoings can be
>> punished by tracing the Internet address of the user.
>>
>> The increase in freedom of speech may bring some discomfort for the time
>> being, but still it is something we should bear. As the Constitutional
>> Court pointed out, "The freedom of expression is an important
>> constitutional value, which is the basis of democracy."
>>
>> --
>> Salanieta Tamanikaiwaimaro aka Sala
>> P.O. Box 17862
>> Suva
>> Fiji
>>
>> Twitter: @SalanietaT
>> Skype:Salanieta.Tamanikaiwaimaro
>> Fiji Cell: +679 998 2851
>>
>>
>>
>>
>>
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-- 
Salanieta Tamanikaiwaimaro aka Sala
P.O. Box 17862
Suva
Fiji

Twitter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Fiji Cell: +679 998 2851
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