criticism out of fear of political retaliation. Even if a person, overcoming
such fear, anonymously expresses critical opinions, such expression may
be deleted for failing to have his/her real name verified in accordance
with the Provisions at Issue. This will suppress the exchange of different
opinions in the ‘free market of ideas’ shaped by the Internet, which may
ultimately create a chilling effect on the people’s expression of opinion
and hinder the free formation of public opinion upon which democracy
depends. Aside from anonymity, other elements contribute to the
negative effects of anonymous political expression during the period of
an election campaign. These include the content of the anonymous
expression, the relevant system regulating political expression, and other
political and social circumstances. Therefore, preemptive and
comprehensive regulation of all anonymous expressions will excessively
restrict the freedom of anonymous expression and the right to
informational self-determination by prioritizing administrative and
regulatory convenience over freedom of expression.
Because the restrictions on anonymous freedom of expression are
imposed during an election campaign period when free political
expression is most critical, because the restrictions are based on abstract
possibilities that the Provisions at Issue may lead to a decline in
unlawful expression rather than concrete risks, and because the
restrictions apply a broad definition of “internet news site”, these
restrictions on fundamental rights are no less important than the public
interest objectives that the Provisions at Issue seek to achieve.
The fairness of elections, an objective of the real-name verification
system, can be sufficiently achieved by other means that do not restrict
internet users’ freedom of expression or their right to informational
self-determination. The Public Official Election Act prohibits the
distribution of information in violation of the Act by regulating election
campaigns that utilize information and communications networks. Thus,
persons whose privacy was intruded upon or who were defamed may
make use of means or temporary measures stipulated in the Act on
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