방송통신심의위원회의 인터넷내용심의의 위헌성

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.