[The Editors' Verdict]Resurgence of the Internet Real-Name System?

"The real-name verification system violates the principle of proportionality and infringes on the freedom of anonymous expression and the right to informational self-determination of internet bulletin board users." This statement is the conclusion reached by the Constitutional Court in August 2012 regarding the internet bulletin board 'real-name verification system' stipulated in the Information and Communications Network Act at that time, declaring it unconstitutional.

Here, the internet bulletin board real-name verification system is a system that imposes an obligation on information and communication service providers who install and operate internet bulletin boards to verify users' identities, requiring bulletin board users to go through an identity verification process before they can use the board or post information. The real-name verification system under the Information and Communications Network Act, introduced in 2007, was commonly referred to as the so-called 'Internet Real-Name System,' and until the Constitutional Court's ruling of unconstitutionality, it was criticized for functioning as a representative mechanism suppressing freedom of expression on the internet.

However, in January 2021, the Constitutional Court also ruled unconstitutional the real-name verification system for internet bulletin boards under the Public Official Election Act, which requires internet media companies to implement technical measures to verify real names when posting information supporting or opposing political parties or candidates on their homepage bulletin boards during election campaigns, applying the same logic.

The freedom of expression guaranteed by the Constitution traditionally means the freedom to freely express thoughts or opinions and to disseminate them. This 'free' expression and dissemination also include the freedom of 'anonymous expression,' which allows individuals to express and disseminate their thoughts or views anonymously or under a pseudonym. However, the real-name verification system and the identity verification system infringed on the freedom of anonymous expression by forcing bulletin board users to disclose their personal information to the board operators.

Moreover, the real-name verification system and the identity verification system imposed obligations on information and communication service providers and internet media companies to collect and store the real-name verification information of bulletin board users. Such information is personal data that can identify an individual's identity and is subject to protection under the right to informational self-determination. These systems unnecessarily forced the collection and storage of users' personal information, thereby infringing on their right to informational self-determination.

Recently, there are signs that the internet real-name system, which the Constitutional Court declared unconstitutional, is making a comeback. The amendment to the Electronic Commerce Act, proposed for legislative notice by the Fair Trade Commission last March, contains provisions that could be suspected as a revival of the internet real-name system. Under the pretext of consumer protection, it mandates online platform operators to verify the identity information of individual sellers and holds them jointly liable if they fail to provide accurate identity information to consumers in case of disputes.

Due to this provision, online platform operators will inevitably have to verify, collect, and store the identity information of all individual sellers to avoid joint liability for damages caused to consumers by the sellers' intentional or negligent acts. Consequently, individual sellers using online platforms must provide their identity information to the operators to use the platforms. This imposition of obligations and joint liability provisions are highly likely to function as the internet real-name system that the Constitutional Court ruled unconstitutional.

The consumer protection pursued by the amendment to the Electronic Commerce Act is a very important public interest. However, freedom of expression and the right to informational self-determination are equally important public interests and constitutional values. It is necessary to consider that pursuing one public interest or value unilaterally may infringe upon other equally important public interests or values. Government agencies responsible for internet-related regulatory policies must always keep this in mind and formulate regulatory policies that balance and harmonize conflicting public interests and values.

Hwang Seong-gi, Professor, Hanyang University School of Law