Constitutional Court Rules 5:4 Constitutional Validity of Real-Name System on Public Institution Internet Bulletin Boards

Unlike Regular Internet Forums, It Should Be Viewed Differently

Constitutional Court Grand Bench./Photo by Hyunmin Kim kimhyun81@

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the provision in the Information and Communications Network Act, which mandates identity verification measures for users of internet bulletin boards installed and operated by public institutions, allowing only real-name postings, does not violate the Constitution.

Previously, in 2012, the Constitutional Court declared unconstitutional the same law provision that required identity verification for users of general internet bulletin boards with more than 100,000 daily users. However, this decision emphasizes that bulletin boards operated by public institutions should be viewed differently.

According to the legal community on the 28th, the Constitutional Court dismissed a constitutional complaint filed by Mr. A, who argued that Article 44-5, Paragraph 1, Subparagraph 1 of the Information and Communications Network Act, which mandates real-name systems for internet bulletin boards installed and operated by public institutions, infringes on fundamental rights such as freedom of anonymous expression. The decision was made with a 5 (constitutional) to 4 (unconstitutional) vote by the justices.

The provision requires that when national agencies, local governments, public enterprises, quasi-governmental institutions, local public corporations, or local public enterprises install and operate internet bulletin boards, they must implement identity verification measures for users as prescribed by Presidential Decree.

In June 19, 2019, Mr. A attempted to post his opinions on the free discussion board of the National Human Rights Commission website, the free board of the Dongjak-gu District Office website in Seoul, and other internet bulletin boards of public enterprises, quasi-governmental institutions, and local public corporations. However, since the operators of these boards enforced measures requiring users to verify their identity, he was unable to immediately post his opinions and subsequently filed a constitutional complaint.

Mr. A argued that ▲ perpetrators causing harm through illegal information can be identified through tracking and verification of internet addresses, ▲ the provision applies to bulletin board users with an excessively broad scope, ▲ less restrictive alternatives exist to protect users’ fundamental rights, such as leaving the implementation of identity verification to the discretion of public institutions or allowing users to distinguish between verified and unverified posts, and ▲ even if anonymous expression in cyberspace may cause side effects, considering the constitutional value of freedom of anonymous expression, the disadvantages to users caused by identity verification measures outweigh the public interest pursued, thus violating the principle of proportionality and infringing on freedom of anonymous expression and the right to informational self-determination.

However, the Constitutional Court pointed out, "The obligation to verify identity under the challenged provision is limited to bulletin boards installed and operated by public institutions, etc. The bulletin boards regulated by the provision generally discuss matters of public interest and, compared to those operated by non-public entities, are spaces typically accessible to anyone, thus requiring stronger responsibility as community members."

Furthermore, the Court stated, "If information including verbal abuse, defamation, or illegal content is posted on bulletin boards installed and operated by public institutions, the reliability of those boards deteriorates, potentially causing harm to users and disrupting the normal operations of public institutions. Therefore, it is necessary to maintain the public nature and reliability of these boards by securing responsibility and soundness in advance through identity verification measures, and requiring identity verification as a condition of use is not excessive."

Regarding alternative measures suggested by Mr. A, the Court judged, "Post-facto remedies such as deletion requests, temporary measures, compensation for damages, or criminal penalties for already posted information cannot be considered to contribute to the legislative purpose to the same extent as the challenged provision, which requires prior identity verification when posting information."

For these reasons, five justices concluded that the challenged provision does not infringe on the petitioner’s freedom of anonymous expression.

On the other hand, four justices?Lee Seok-tae, Kim Ki-young, Moon Hyung-bae, and Lee Mi-seon?issued dissenting opinions, arguing that considering the democratic implications of freedom of anonymous expression, the public domain regulated by the provision is precisely where freedom of anonymous expression should be more strongly protected. They held that the provision violates the principle of proportionality and infringes on the petitioner’s freedom of anonymous expression.

The Constitutional Court requires the approval of six or more justices to declare a law unconstitutional.

This content was produced with the assistance of AI translation services.