Like its counterparts in most liberal democracies, the KCC developed some
criteria by which the constitutionality of any legislation limiting freedom of expres-
sion can be evaluated. Among them, the most frequently used by the KCC is the
rule of clarity (an equivalent of “void for vagueness,” according to US consti-
tutional law).^41 Two representative cases merit attention. In 2008 , the KCC
declared that Article 21 ( 3 ), Item 5 , of the Promotion of Motion Pictures and Video
Act, intended to define the “restricted” category of film that can be shown only in a
specially licensed place, was incompatible with the Constitution because the
definition is too obscure to meet the rule of clarity.^42 In 2010 , the KCC also struck
down Article 47 ( 1 ) of the Electric Telecommunication Act, which criminalizes
those who transmit false communication through electric communication facilities
with the intent to harm the public interest, on the ground that it violates the
principle ofnulla poena sine legeand the rule of clarity. This case concerns a
controversial indictment of an Internet controversialist named “Minerva” whose
economic comments on the financial crisis in 2008 drew dramatic public attention.
The KCC reasoned that the “public interest” is too ambiguous and abstract to
notify ordinary citizens of what purpose of communication, among “permitted
communications,” is prohibited.
43
The most controversial case in this area is theNewspapers Actcase in 2006.
The then president Roh Moo-hyun was a champion of media reform even
before he came into power because he believed that unfair competition in a
media market dominated by monopolized press companies has been a major
cause of a distorted political process in favor of conservative vested interests.
In fact, three major conservative presses, theChosun Ilbo(“Daily”), theJoongang
Ilboand theDonga Ilbo, occupied 60 percent of the press market. The ruling
Open Uri Party managed to pass the Newspapers Act, containing, among
others, two controversial media regulations. First, Article 15 ( 2 ) of the said Act
prohibited any daily newspaper from concurrently running any news agency or
any broadcasting business that performs general programming or professional
programming running news reports under the Broadcasting Act. Second,
Article 15 ( 3 ) of the same Act regulated multiple possession of newspapers by the
dominant stockholder of a newspaper. The KCC ruled that the former prohib-
ition can be regarded as the constitutional exercise of legislative power while the
latter regulation of multiple possession of newspapers was incompatible with the
Constitution because such regulation did not allow exceptional permission of
multiple possession of newspapers that did not hinder the diversity of newspapers
(^41) Constitutional Court Decision 99 Hun-Ma 480 , June 27 , 2002 ,Korean Constitutional Court
Reports, Vol. 14 ,No 1 , 616.
(^42) Constitutional Court Decision 2007 Hun-Ka 4 , July 31 , 2008 ,Korean Constitutional Court
Reports, Vol. 20 ,No 2 , Part 1 , 20.
(^43) Constitutional Court Decision 2008 Hun-Ba 157 • 2009 Hun-Ba 88 , December 28 , 2010 ,
Korean Constitutional Court Reports, Vol. 22 ,No 2 , Part 2 , 684.