Welcoming the Constitutional Court’s Decision against Real Name Registration
Internet portals should immediately stop collecting personal information and providing such information to investigative agencies
Today (23 August 2012), the Constitutional Court unanimously ruled the real-name registration system of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc, Article 44-5 unconstitutional, on the grounds that real-name registration system violates internet users’ right to anonymous expression and information, and communication services providers’ freedom of the press, and informational self-determination (2010HeonMa47). Moreover, the Court dismissed the case on Article 83 Section 3 (Article 54 Section 3, before amendment) of the Telecommunications Business Act that allowed acquisition of telecommunications information obtained through real-name registration, such as internet users’ identification numbers, names, addresses, for investigative purposes without any judicial regulation, on the grounds that the article in question does not have legal binding powers.
People’s Solidarity for Participatory Democracy (PSPD)’s Public Law Center (Chaired by Kyung-shin Park, Professor at Korea University) hereby welcomes today’s two decisions of the Constitutional Court, appraising these two decisions to be protections for Constitutional rights to freedom of expression and right to privacy.
These decisions were based on the constitutional petitions filed by PSPD along with users such as Ohmynews (ohmynews.com), YTN (ytn.co.kr), Youtube (kr.youtube.com) and etc, on the grounds that real name registration system (otherwise called self-authentication system) violates the right to privacy and the freedom of expression by requiring users to make their personal information public in order to write their opinion online.
Real-name registration system was established according to the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc, Article 44-5, Section 1 (2), and the Enforcement Decree of the same Act Article 30, Section 1. It requires providers of information and communication services with more than 100,000 or more users per day and with an open message board function to go through real name verification. This system, which is found only in Korea, led Youtube to remove open message board in which Korean users could leave a message, and caused controversy since Ddanzi Ilbo also became a provider that has to implement real name registration according to this law from this year.
The problem with real-name registration system is that by requiring limited self-authentication system to providers, the state enforces internet users who wish to communicate to others through these providers to self-authenticate. Enforced restriction by the state limits internet users’ freedom to anonymously communicate with others through providers’ services.
In other words, it is excessive restriction because what freedom of expression protects are not favorable expressions, but expressions that are suppressed by authorities or the majority. If anonymity is employed to evade prejudices of the time and oppression by authorities, freedom of anonymous expression should be the most essential and valuable freedom among others. Also, the freedom of expression on the Internet is rooted in anonymity and it allows one to conceal various class indicators such as race, social status, gender, ethnicity, or age, that in an offline environment, enable an elite speaker to dominate a discourse, thus providing an opportunity in which anyone can take the lead in social discourse.
Through its decisions, the Constitutional Court, has also made it clear that freedom of expression is a freedom to express one’s thoughts or opinions to the others, and is “a fundamental right which is indispensable for the existence and advancement of modern liberal democracy”, and that “protection of this freedom to the maximum is one of the fundamental principles of the Constitution.”
Above all, below are the reasons why the Internet real-name registration is unconstitutional.
First, it violates freedom of expression, which is protected by the Article 21 of the Constitution. Internet users who are able to express their opinion after having their real name verified have no choice but to be more precautious and practice self-censorship.. In fact, self-censorship works as a 'substantial pre-censorship', which confines freedom of speech. The decision that the Constitutional Court reached lately says that real-name registration system brings chilling effects even to those who post legitimate writings
Second, the Internet real-name registration system violates right to privacy which is enshrined in the Article 17 of the Constitution as it forces people to reveal their identity. ,
As the Constitutional Court’s decision recently points out, the Article 83, Section 3 of the Telecommunications Business Act (formerly Article 54, Section 3), seriously violates the right of self-determination under the situation where personal information acquired through the real-name registration system is sent to investigation without a warrant.
As the Court further points out, personal information accumulated by the real-name registration system can be easily licked.
In 2007, the Government stated that the purpose of introducing the real-name registration system was to secure and reinforce responsibilities of socially influential groups such as information and communications service providers and public institutions. This is a sort of precautions against adverse effects that could be caused by the following features such as anonymity, due to the nature of information and communications network. On the other hand, there have not been significant statistical data since the real-name registration system had put into practice. The Court’s recent decision also said that the real-name registration system does not produce desired effect of reducing illegitimate information.
Writing anonymously have been historically protected despite of its risk, since it has served for the sake of public interest; and this is why the Constitutions of most liberal democratic countries explicitly protect the freedom of expression. However, this Government-enforced real-name registration system neglects these Constitutional values and immensely infringes freedom of expression as well — hence, unconstitutional.
Since the decision has been made, business service providers should discontinue the practice of collecting personal information from the users by means of the real-name registration system. Moreover, the National Assembly of Korea should repeal other forms of real-name registration systems that infringe the right to self-determination. Furthermore, the Constitutional Court rejected the petition on the Communication Data Offering System under the reason that it is not legally binding that would enforce businesspersons to offer the communications data to investigation agencies. Now that the Court ruled that it does not carry legal binding force, business service providers should immediately stop ongoing practice of leaking their customers’ information to investigative agencies in secret.