Law in the Internet Society


-- By KibongCho - 1 Feb 2013

Introduction & Thesis

Until recently, South Korea was the first and only country that legally required internet users to register their real names and national identification numbers with internet portals before commenting or contributing content online. The Constitutional Court held this controversial Real Name Verification System unconstitutional, liberating anonymous online expression, and perhaps more importantly, restraining the government’s ability to potentially abuse access to this information and snoop on internet users’ online activity.

However, in a previous decision, the Constitutional Court upheld the constitutionality of the Real Name Verification of Internet News Sites law, which requires internet users to register their real names and national identification numbers in order to post messages expressing support or opposition to political parties or candidates during the election campaign period.

This paper argues that despite its valid policy concerns, given the unconstitutionality of the Real Name Verification System, the Real Name Verification of Internet News Sites, which is intended at censoring political expression, should not survive constitutional muster either. In addition, unlike the identity verification laws, South Korea’s widely supported Cyber Defamation laws aimed at curbing the widespread malicious, false and random lashing out against innocent targets online serve a valid purpose, and on balance, the benefits are sufficient to justify tolerating some of the potential restraints that the laws might impose.

South Korea & the Internet

With a population that exceeds 10 million living in an area half the size of New York City, Seoul is one of the most densely populated cities. Furthermore, surrounded by sea and North Korea, the geographical constraints exacerbate the sense of crowdedness. The open and boundless internet allows Koreans to retreat from this confinement, possibly explaining why South Korea is one of the most wired countries in the world with many citizens spending most of their time on the cyberspace. According to research, PC Tablet users in Korea on average spend 11.75 hours online everyday, and the number would probably be even greater if they could eat and sleep on the internet.

This leaves out the other 40 million South Koreans, who do not find themselves among the sky people crowded into Seoul. Perhaps it would be even more correct to say that the Net has helped to integrate provincial South Koreans better into the culture of privileged Seoul-dwellers?

Online Defamation

The internet, thus, has clearly become an important part of Korean society. Due to the extensive, affordable, and non-discriminatory access it provides to Korean citizens, the internet arguably has created the most vibrant “marketplace for ideas” and the important forum for democratic and political participation in Korean history. However, it has also given rise to a wide array of social issues. While much of the commentary online is undoubtedly products of thoughtful reflection and rational deliberation, unfortunately, the South Korean web is also full of hostility, gossip, “disinformation, rumors, and garbage.” Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 893 (2000).

In a 2011 South Korean survey, 54.4% of the respondents stated that they have been victims of online hostility. Online insults were becoming a trend in South Korea until 2008 when Choi Jin-sil, a famous Korean actress nicknamed “the Nation’s Actress” committed suicide after a storm of careless rumors and insulting comments quickly transformed what really should have been Choi’s personal and private issues into a national phenomenon. Following this incident, public support for regulating online expression dramatically increased, facilitating government efforts to implement the Real Name Verification System aimed at combating online anonymity.

Real Name Verification System

Under the Real Name Verification System, “internet portals with more than 100,000 users per day [were required] to confirm the identities of content contributors by requiring them to disclose their Korean national identification numbers.” The government’s stated purpose of the law was to suppress online defamation and to make it easier to trace offenders. The Constitutional Court recognized this as a valid purpose, but found the law unconstitutional because it was not narrowly tailored to accomplish this goal, and had a significant chilling effect on legitimate online speech.

Indeed, it seems possible that the law is not very effective at curbing the kind of undesirable hostile comments, but does have a strong chilling effect on legitimate speech. Since most derogatory comments online are made between people who do not know each other anyways and only a minute fraction of the victims would be inclined to pursue litigation due to relatively high costs, revealing true identities of online commenters does not seem to be a very strong deterrent against online hostility. Indeed, statistics demonstrate that there was only a slight drop in the rate of malign internet posts (from 15.8% to 13.9%). In contrast, laws requiring users to reveal their identities to the government could discourage many users from critiquing government abuse, making politically controversial statements, and expressing various other legitimate ideas or concerns.

Real Name Verification of Internet News Sites

Thus, the Real Name Verification of Internet News Sites law, which requires online users to register their real name and national identification number with internet news sites in order to post messages “expressing support for or opposition to political parties or candidates . . . during the election campaign period,” seems excessively broad. While the law does serve a valid purpose of preventing small groups from “distorting public opinion . . . [with] malicious propaganda and false facts . . . during the short election campaign period,” making it difficult to rectify the distorted information in time, it also chills legitimate exchange of important political communication. In Buckley v. American Constitutional Law Foundation, Inc., Justice Ginsburg stated that constitutional protection "is at its zenith" for political speech, indicating that political expression is fundamental to democratic freedom. The Real Name Verification of Internet News Sites seems to be an excessive restraint against political speech.


South Korea can use its existing cyber defamation law, which is widely supported by the Korean public, to restrain online hostility. By repealing laws that chill anonymous speech and maintaining the defamation laws, South Korea can promote a healthier online environment where netizens can say what they mean, but without saying it mean.

It's hard to know how to apply US principles of free speech, at the comparatively detailed doctrinal level, to Korean legal phenomena, and hard to apply concepts more broadly in any reliable mapping, because the two social systems could hardly be more different. The US Supreme Court, which has not been particularly interested in or solicitous of anonymity, has decided its few anonymity cases in the area of campaign speech, where it is particularly obvious within our terms of social reference, even to Justices, that anonymity must be protected by the First Amendment.

But we are also certain since New York Times v. Sullivan, half a century ago, that limitations on defamation law (not merely limitations on disclosure of speakers' identities, but on liability for defamation altogether) are also constitutionally required in order to ensure "robust, wide-open and uninhibited" public debate. So if we were really to be applying anything like US concepts, let alone specific constitutional doctrine, your conclusion would be difficult to reach.

Instead, we are asking different questions, answerable only within their own cultural frame. It be helpful, I think, to spell out the spectrum of positions likely to be taken on the issues within the Korean discourse. What we need most is to see the span of concepts that will be employed by all the parties engaged in the argument, in order to appreciate not what you or I might do with the US law we know, but what the real values are underlying the various Korean positions: what the native-speakers of that law talk think they are saying, and why they think they are saying it.


Webs Webs

r5 - 23 Aug 2014 - 19:31:21 - EbenMoglen
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