Ban on SNS campaigning overruled

A clause in the nation’s election law that prohibits preliminary election campaigning through social networking services was ruled unconstitutional yesterday.

The Constitutional Court said the ban was an infringement on the freedom of expression in cyberspace.

The Constitutional Court yesterday ruled that Clause 1 of Article 93 of the Public Officials Election Act was unconstitutional. Expressing support for or opposition to a political party or candidate through social networking services will be allowed ahead of the April 11 legislative elections.

Of the eight justices who reviewed the case, six ruled the prohibition unconstitutional, while two disagreed. The Constitutional Court has a nine-member panel, but one seat has been vacant since July due to political deadlock in the National Assembly.

Article 93 of the election law prohibits unlawful distribution or posting of documents and pictures. Clause 1 states, “No one shall distribute, post, scatter, play, or run an advertisement, letter of greeting, poster, photograph, document, drawing, printed matter, audio tape, video tape, or the like which contains content supporting, recommending or opposing 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 to the election day.”

In March 2010, Representative Chung Dong-young of the Democratic Party, which is now merged into the Democratic Unity Party, with a group of public complainants filed a petition claiming the language “the like” in the clause is too broad and ambiguous and violates the freedom of expression of voters. Whether the clause is applied to Twitter and other social networking services was the focus of the review.

“Taking into account the freedom of political expression and election campaigns, the peculiar nature of the Internet, the purpose of the legislation and the relationship with other clauses in the election law, the court ruled that the clause was in violation of the principle against excessive restriction, thus infringing upon the complainants’ freedom of election campaigning and political expression,” the Constitutional Court said in a press release.

Six of the eight justices noted that defamation and the spreading of false rumors are regulated by other laws, and it is possible for Internet users to proactively decide what information they would like to accept.

In the ruling, the court said Internet is a medium that is easily accessible and almost free to use, thus it is seen as a tool that can drastically lower campaign expenses. Restricting election campaigns’ use of the Internet will not serve the purpose of the law, which is to prevent any unfairness due to the financial capabilities of the candidates, the court said.

The court also said the 180-day period that prohibited campaigns in cyberspace was too long. “Barring expression of opinions on the Internet for such a long period will block criticisms of a political party or a government policy and eventually weaken responsible politics, the fundamentals of the representative system,” it said.

By Ser Myo-ja [myoja@joongang.co.kr]