The NHRCK expressed its concern over Article 47, Paragraph 1 of the Electronic Communication Fundamental Law. This provision stipulates that people who disseminate wrong information via telecommunication with an intention to harm public interest shall be sentenced to no less than 5 years imprisonment.
The NHRCK concluded that Article 47 poses grave threat to the freedom of expression.
In an effort to deter the potential problem of this Article, the NHRCK sent its opinion letter to the Constitutional Court and the Seoul Central District Court and recommended that they should consider cases pertaining to Article 47, Paragraph 1 more rigorously.
The Electronic Communication Fundamental Law poses three problems with respect to the freedom of expression.
First, this law defines perpetrators on the basis of public interest, not specific harms made. Criticism has also been made in the international society that legal definition of wrong information is not well established and this would be misinterpreted in the cases related to the freedom of expression. Currently, many of other democratic countries do not regulate wrong information and some of them are processing the abolition of relevant provisions.
In view of the fact that Article 47, Paragraph 1 criminalizes one’s words, this provision should be clear and concrete. The expressions such as “with an intention to harm public interest” and “wrong information” are not clear enough to restrict someone’s freedom of expression. Simultaneously, people’s basic rights should not be undermined under the pretence of public interest. Some problems that wrong information triggers can be resolved without criminalization of people concerned.
Lastly, Article 47, Paragraph 1 has never been enforced over the past 45 years and this evidences that the law is not necessary to secure a democratic society. Also, the ambiguity of the criteria on wrong information could rather result in misinterpretations according to the government’s arbitrary judgment. For the same reason, people cannot clearly know about what acts will fall under the violation of this Law. More seriously, criminalization of wrong information will make people not voice their opinions. This clearly limits people’s freedom of expression.
Considering all these aspects, the NHRCK requested both the Constitutional Court and Seoul Central District Court to reconsider the constitutionality of Article 47, Paragraph 1 of the Electronic Communication Fundamental Law.
