[W Forum] Indiscriminate ICT Administrative Legislation Undermining Constitutional Separation of Powers

The forms of regulations that bind our lives are diverse. Representative examples include laws enacted by the National Assembly and administrative legislation (such as enforcement rules, directives, notices, and regulations) created by the executive branch. However, restrictions on citizens' fundamental rights and imposition of duties must be established by law enacted by the National Assembly. This is because the National Assembly is the institution that receives the most direct democratic legitimacy from the people and primarily represents them.

Decision-making in the National Assembly occurs within a pluralistic consensus body composed of representatives of the people, recognizing diverse opinions and interests of the public and through open debate. In other words, unlike administrative legislation, which offers relatively limited opportunities for criticism and public discussion, the National Assembly allows criticism from the general public and opposition parties and opens the possibility of their participation.

Recently, administrative legislation, which has lower democratic legitimacy compared to laws, has excessively restricted citizens' daily lives and directly affected them. This phenomenon is especially pronounced in ICT-related laws due to their specialized and technical nature, involvement of multiple government ministries, rapid environmental changes, and frequent organizational restructuring.

A representative example is the "Interconnection Fee Calculation Criteria" stipulated in the "Interconnection Notice" under the jurisdiction of the Ministry of Science and ICT. The method of settlement is a highly contentious issue. However, the "Telecommunications Business Act" broadly delegates the authority to set the "criteria for calculating fees" to the notice without specifying detailed standards. Although the regulatory review committee was involved during the revision process of the notice, it was classified as a non-important regulation and thus did not undergo proper discussion. As a result, disputes over network usage fees between internet service providers and platform operators continue unabated.

Meanwhile, the Fair Trade Commission is a ministry that actively utilizes such administrative legislation. The "Guidelines on Review of Recommendations and Endorsements in Advertising," revised in June 2020, are administrative rules established under the authority delegated by the "Fair Labeling and Advertising Act." However, while the "Fair Labeling and Advertising Act" limits its application to "business operators," these guidelines extend their scope to include individuals classified as celebrities. Of course, the intent to regulate so-called "backdoor advertising," where influencers receive compensation from specific companies to produce content uploaded on platforms like YouTube without disclosing paid advertisements, is understandable.

However, the reason the "Fair Labeling and Advertising Act" limits the subjects to business operators is the legislator's decision to allow personal promotions or advertisements from the perspective of "freedom of expression," regulating only those acts conducted by business operators as a profession. These guidelines exceed the legislator's decision by expanding the scope to individuals classified as "celebrities," thus exceeding the delegated authority set by the "Fair Labeling and Advertising Act." Furthermore, recently, the Fair Trade Commission has undertaken administrative legislation titled "Guidelines on Review of Abuse of Market Dominance and Unfair Trade Practices by Online Platform Operators."

These guidelines include concepts and practices such as the definition of "online platform operators," which are highly contentious and not yet fully established academically or practically. The executive branch's attempt to regulate issues still under nearly two years of discussion in the National Assembly and without legal consensus through unilateral administrative legislation is an overreach beyond the limits of legal delegation. The indiscriminate creation of such administrative legislation leads to unjust restrictions on citizens' rights and imposition of duties and must be remembered as a threat to the constitutional guarantee of fundamental rights and the principle of separation of powers, which is the foundation of democracy.

Hyunkyung Kim, Professor, Graduate School of IT Policy, Seoul National University of Science and Technology