방송통신심의위원회의 인터넷내용심의의 위헌성
Unconstitutionality of Internet Censorship by Korea Communication Standards Commission
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초록
Korea Communication Standards Commission (KCSC) is the administrative censorship body conducting review of the internet content in Korea. The Korean Constitution, as many other countries' bans censorship yet Korean courts have defined only pre-publication review as censorship. Such definition is too restrictive and not sufficiently protective of free speech. In the U.S., "prior restraint", the American term for censorship, has included not only pre-publication review but also post-publication review conducted by administrative bodies. Such administrative review has been constitutionally permitted only if and when it was followed by expeditious judicial review or its scope of discretion was severely limited to specific subject areas. Judicial repulsion against administrative censorship, even if post-post publication, may have originated from (1) speech-act dichotomy whereby suppression of speech by an administrative decision, essentially provisional until judicial review, is considered a constitutional evil while suppression of act is not; (2) administrative bodies' bias in favor of the government in disputes concerning public interest; and (3) administrative bodies' ability to retaliate through other means such as industrial subsidies or other licensing schemes. For this reason, though not explicitly banned by courts, administrative content review has disappeared in most democracies. KCSC's censorship is vigorous with more than 30,000 take-down orders issued every year and broad covering beyond obscenity and gambling and reaching defamation and "any information intended for, aiding or abetting any crime", obviously open to government abuse. This potential for abuse materialized in high-publicity cases such as the newspaper advertiser boycott case. The author argues that, in order to abate the unconstitutionality of the censorship system, first, the subject areas overbroad or open to government abuse be removed; second, censorship decisions be immediately followed by judicial review; third, the authors of the censored material be afforded participation in the administrative review proceeding, in order to bring the whole system into compliance with the constitutional requirement of the process; and finally, KCSC refrain from any censorship of any content for the purpose of protecting the interests of the government or high public officials.
Abstract
Korea Communication Standards Commission (KCSC) is the administrative censorship body conducting review of the internet content in Korea. The Korean Constitution, as many other countries' bans censorship yet Korean courts have defined only pre-publication review as censorship. Such definition is too restrictive and not sufficiently protective of free speech. In the U.S., "prior restraint", the American term for censorship, has included not only pre-publication review but also post-publication review conducted by administrative bodies. Such administrative review has been constitutionally permitted only if and when it was followed by expeditious judicial review or its scope of discretion was severely limited to specific subject areas. Judicial repulsion against administrative censorship, even if post-post publication, may have originated from (1) speech-act dichotomy whereby suppression of speech by an administrative decision, essentially provisional until judicial review, is considered a constitutional evil while suppression of act is not; (2) administrative bodies' bias in favor of the government in disputes concerning public interest; and (3) administrative bodies' ability to retaliate through other means such as industrial subsidies or other licensing schemes. For this reason, though not explicitly banned by courts, administrative content review has disappeared in most democracies. KCSC's censorship is vigorous with more than 30,000 take-down orders issued every year and broad covering beyond obscenity and gambling and reaching defamation and "any information intended for, aiding or abetting any crime", obviously open to government abuse. This potential for abuse materialized in high-publicity cases such as the newspaper advertiser boycott case. The author argues that, in order to abate the unconstitutionality of the censorship system, first, the subject areas overbroad or open to government abuse be removed; second, censorship decisions be immediately followed by judicial review; third, the authors of the censored material be afforded participation in the administrative review proceeding, in order to bring the whole system into compliance with the constitutional requirement of the process; and finally, KCSC refrain from any censorship of any content for the purpose of protecting the interests of the government or high public officials.
참고문헌 (8)
- "2008년 11월 11일 방송통신심의위원회 주최 국제컨퍼런스 “내용규제 패러다임의 변화와 향후규제” 자료집", ~ (2008)
- "2009년 11월 19일 방송통신심의위원회 토론회 김성천 발제문", ~ (2009)
- 방송의 공정성심의를 위한 연구, "김민환", 방송통신심의위원회, ~
- 방송통신심의규정 개선방안에 관한 연구, "김성천", 방송통신심의위원회, ~ (2009)
- 박경신, "미국의 사전제재(prior restraint) 법리와 2002년 불온통신규제결정의 재발견", 헌법실무연구, 9, pp.503~533 (2002), 헌법실무연구회
- 박경신, "사전검열 법리와 정보통신윤리위원회의 활동: 법과학적 방법으로", 인권과 정의, 312, pp.3~ (2002), 대한변호사협회
- 오길영, "인터넷통제규제에 대한 비판적 검토-정보통신망이용촉진및정보등에 관한 법률을 중심으로", 민주법연, (37), pp.281~
- Thomas I. Emerson, "The Doctrine of Prior Restraint", Law & Contemp. Probs., 20 (1955)
