8/10/2017 Constitutional Court Korea > Decisions > Major Decisions The restriction on free expression should be confined to actions likely to cause specific harm to society or seriously damage an individual's feeling about his/her own reputation. Specifically, punishment should be limited only to abstract judgments and emotional expressions that will evidently inflict clear, big damages. One of the examples requiring punishment could be hateful expressions associated with sex, religion, disability, country of origin, etc. (US Code Title 18 Part 1 Section 245(b)(2) and French Press Law Article 33 Section 3, 4) and those inciting hatred and violation against certain groups (German Criminal Code Section 130). This could be extended to lewd and obscene words involving character assassination and disparagement solely intended to humiliate others that, by their very utterance, tend to incite an immediate violence (refer to the US fighting words law). Since the Provision can regulate even a simply negative, critical judgment or emotional expressions that merit constitutional protection, instead of just limiting ones that cause concrete harm to society or seriously undermine one's feelings for his/her reputation, the area subject to regulation is too extensive. B. Intimidation of Free Expression The scope and definition of insult subject to punishment under the Provision is too broad, and this intimidates acts of expression. Punishment of insult as a criminal offense restrains the possibility to raise and constructively resolve issues in social communities through free exchange of views and criticism. If some negative languages or critical statements on sensitive political, social issues used in political, academic seminars or debates constitute insults and are thus regulated, political, scientific acts of expression will be restrained and opportunities of open debate will decline, damaging the essential function of the freedom of expression. Particularly in a modern democratic society founded on ideologies of plurality and relativism of values, the state making judgment on whether to permit an expression or not based on a too broad definition of insult may distort or politically abuse the free market of press and ideas. Although the majority opinion states that the freedom of expression can be appropriately protected under Article 20 of the Criminal Act concerning "justifiable act," allowing for ex post facto exception to prohibition alone cannot prevent the intimidation of free expression. The criminal procedure against insult from criminal charge, prosecution, and then to trials intimidates not only the offender but also the ordinary citizens who watch the process in real time. In an environment where Internet websites, blogs, social media, etc. have become part of our everyday lives, criminal punishment of insult also has an enormous restraining effect on the free expression of society as a whole. C. Appropriateness of Criminal Punishment The state's authority to punish crime is the most powerful authority enjoyed by the state and, for those subject to penalty, it is a cruel enforcement. Therefore, the exercise of such authority should be limited to the minimum when it is prescribed in criminal law. Issues that can be resolved in moral or social domains should be left up to morals or members of society. A mere abstract judgment or an expression of scornful emotion could be regulated through self correcting-mechanism of civil society or imposition of civil liabilities. In recent days, the dissemination of insulting expressions in cyberspace have huge repercussions, and it is understandable that regulation is required. However, a large number of malicious acts of expression in cyberspace are mostly committed by juveniles by accident or on impulse; regulating all such acts as criminal offense may unnecessarily turn many people including juveniles into criminals. In fact, minor cases of insult in cyberspace can be prevented to a great extent through alternatives, such as deleting or removing the expression in question or blocking the offender's access to Internet bulletin boards, so there are cases where sanctions through criminal punishment is not required. According to the 2012 Annual Report of the Prosecutor's Office, in 2000 the number of cases filed involving insult amounted to 1,858 and 532 individuals were indicted, and in 2011 a total of 11,839 cases were filed and 6,260 were prosecuted. There could be many reasons for the 10 fold-increase in the number of prosecuted individuals within 11 years, but, above all, increased acts of expression on the Internet should have resulted in easier, more frequent insults without facing each other in person, which probably has led to more charges of insult. This change indicates that people overall are no longer able to or cannot afford to accept critical, negative opinions or emotional expressions used against themselves. As "insult" may also include minor insulting behaviors, abstract judgments, or derogatory expressions, penalizing all these expressions as criminal offence excessively limits the freedom of expression. D. International Human Rights Standards Criminal punishment of insult, in some respect, does not meet the international human rights standards either. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), an international human rights treaty to which Korea is a party and thus has the same effect as domestic law pursuant to Article 6(1) of the Korean Constitution, provides for the freedom of expression. General Comment No. 34 on Article 19 (freedoms of opinion and expression) adopted by the Human Rights Committee established under the ICCPR stated that the mere fact that a form of expression of opinions, not factual arguments, is considered insulting is not sufficient to justify the imposition of penalties. The General Comment also calls on the State parties to consider decriminalization of defamation and states that, in any case, the application of criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. The Special Rapporteur for Freedom of Opinion http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do 6/7