인터넷을 이용한 정치적 표현의 자유에 관한 헌법재판소 결정 비판 －헌재 2011. 12. 29. 2007헌마1001등－

Abstract

Our “Public Official Election Act” Article 93, under the title “Prohibition of Unlawful Distribution of Posting, etc. of Documents and Pictures”, Section (1)provides “No one shall distribute, post, scatter, play, or run an advertisement, letter of greeting, poster, photograph, document, drawing, printed matter, recording tape,video tape, or the like which contains the contents supporting, recommending or opposing a political party (including the preparatory committee for formation of a political party, and the platform and policy of a political party) or candidate (including a person who intends to be a candidate) or showing the name of the political party or candidate with the intention of influencing the election, not in accordance with the provisions of this Act, from 180 days before the election day (the time when the reason for holding the election becomes final, in case of a special election) to the election day”. And Our Constitutional Court found it(‘or the like’) unconstitutional only as it(‘or the like’) applies to the internet-using political expression or election campaign in the KCC 2011. 12. 29. 2007Hun-ma1001 Decision. It overruled the previous decision that found “Prohibition on the UCC-using political expression from 180days before the election day” is not against Constitution. The above-said 2007Hun-ma1001 Decision is estimated to be progressive, but it did not pass a judgement on whether Article 93 Section 1 of POEA is content-neutral regulations or content-based regulations. Thus, whether ‘potcast’ is applicable to that Clause(‘or the like’) is still remain unsolved. Political Expression or Election Campaign should be guaranteed regardless of its method or period.of as a freedom of political expression. While the benefits of the ban on the election campaign are marginal, the deleterious effects are substantial. The freedom of election campaign is one of the most important rights in realizing democratic ideals, and should not be subject to unnecessary regulation and restriction. It should only be allowed when a measure is a necessary in acquiring compelling public objective and there are no less restrictive alternatives. Considering role of freedom of election campaign in the democratic society, a wide scope of legislative discretion should not be recognized in establishing legislations regulating election campaign.