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Freedom of Expression

¡ă Freedom of Expression

1. What Is Freedom of Expression?

¡á Freedom of Thoughts and Freedom of Expression

It is the World Human Rights Declaration the UN adopted on December 10th, 1948 that best prescribes freedom of expression as a human right so far.

Article 18
All human beings have a right to have freedom of thoughts, conscience, and religion. This right includes freedom to change his or her own religion or faith, and freedom to express his or her own religion or faith in the form of discussion, event, worship or ceremony, alone or in a group, publicly or secretly.

Article 19
All human beings have right to enjoy freedom of opinion and expression. This right includes right to have an opinion without interference and to pursue, obtain, and convey information and thoughts regardless of a border.

Freedom of thoughts is freedom to choose their own views on the world, life, and politics. When this thought is expressed outwardly, it becomes freedom of press, publication, assembly and association; in regard to faith, it becomes freedom of religion; in regard to truth seeking, it becomes freedom of learning. As such, freedom of thoughts is 'theoretical foundation' of all the spiritual and political freedom and basic of basics.

Freedom of thoughts means freedom of expression. Freedom of thoughts does not mean that only inner thoughts nobody is aware of can be protected.

Freedom of thoughts and expression has been superior to other human rights. That is because the expression of an individual is the most fundamental activity for self-fulfillment and press is an essential condition of democracy, through which people participate in forming a political decision.

Meanwhile, freedom of speech guarantees not only the very activity of 'expression,' but also delivery of it and the process of communication for the purpose of delivery. Furthermore, it protects information collection activity for expression. Eventually, freedom of expression guarantees even free delivery in media, the tool of expression.

¡á Limitations on Freedom of Expression

Freedom of expression is the most fundamental right, but it can be limited under some conditions where the right of a self and those of other people should be guaranteed at the same time or public values need to be protected.

The third items of article 18 and 19 in the United Nation's ¡®international agreement on civil, political rights (agreement B)' stipulates that freedom of thoughts and expression 1)is protected by law and that it can be limited in case of 2) protection of other people's rights and freedom, and 3) the protection of national security, public order, public health, and morality.

In some countries, the discriminatory and violent expressions directed at certain group because of their differences in race, religion, sex, or sexual orientation are limited.

In May 22, 2000, the French court ruled that it was illegal that Yahoo!, the internet portal site, auctioned Nazi products, fined them, and ordered to cut the internet connection. The court explained Yahoo! violated the French law that prohibits selling racism products by selling such Nazi legacies as س medals, guns, and about 1000 gas carriers that were used to kill jews at the death camp.
Is a slandering speech at black people freedom of expression or racial discrimination? Is a violent expression at women freedom of expression or violence? As more and more hatred sites like 'white supremacy' sites are popping up on the net in the current resurgence of neoconservatism, the issue of discrimination is getting serious. One thing is clear: the expressions discriminating and excluding minorities fall into the category of intrusion of human rights and discrimination.

¡á No Censorship

However, any kind of censorship is banned. Censorship is a system to prevent certain thoughts or opinion that the government (the administration)  reviewed and chose to ban before they are expressed. In other words, censorship is an activity for the 'government' to ban expression 'preliminary'.
In addition, in case of limiting freedom, excessive regulation is banned. Therefore, limiting freedom of expression should follow principles of clarity and minimum regulation.

Clarity means the regulation standards should not be obscure or too broad. In other words, the reasons limiting freedom of expression should be stipulated in law. The minimum regulation means freedom of speech should be guaranteed unless there is clear and present threat that would lead to illegal behavior or real vices'. According to the UN's the Johannesburg principles on national security freedom of expression and access to information, the case of limiting freedom of expression to protect national security is limited to "the most serious situation where there is a direct political, military threat to the whole nation."

The UN Human Rights Committee pointed out that there are numerous cases of unnecessary and unfair intrusions of freedom of expression in the name of national security. Therefore, it clarifies that the only case that freedom of expression is limited is when the national security is ;truly under threat' and required the regulations to be clearly defined so that, even in such a case, "anyone should be able to know what is prohibited and what is limited."

2. Freedom of Expression and the Internet

¡á The Internet and the Changes in Journalism

At the time of 17th century civil revolution, bourgeois needed the strong tool of communication to face the feudal rulers. Accordingly, they called for the protection of free journalism and emphasized freedom of expression. This is the background from which the modern sense of freedom of expression emerged.
As bourgeois started to possess production tools and power after the civil revolution, however, freedom of expression for the people who don't have them lost meaning. Freedom of expression is declared, but the press and publication that can deliver it fell to the hands of the power.

Entering 20th century, in particular, mass media controlled the press environment. As big press companies began to take up the market, concentration problem in journalism took place. In response to this phenomenon, the UNESCO warned that international information order was being seriously distorted through the mass media declaration in 1978 and Macbride committee report in 1980. By this time, there raised an argument that freedom of expression is the same as communication right of free access to media and of equal use of it.

A Declaration of the Independence of Cyberspace (part)
by John Perry Barlow (1996)

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.

You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions.

You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don't exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract . This governance will arise according to the conditions of our world, not yours. Our world is different.

Against this backdrop, the Internet was the 'media of the people.' It was hailed as a media that will enable a true communication between human beings and will eliminate problems of concentration or distortion of mass media. Thus, netizens at the initial stage contended unlimited freedom in the cyber space as shown in 'Cyberspace Declaration of Independence.'

¡á Emergence of Requests for Internet Regulations

As the Internet spreads fast, there were changes in press environment that was centered on mass media. The stark difference of the Internet from the established press is that there is no editor. In the press and publication environment, editors checked the truthfulness of facts and circulated them once the artistic values are confirmed. On the Internet, however, people themselves produce and circulate what is to say.
Such a direct way of communication on the Internet caused many social debates. Especially, for countries like Korea, of which media has long been under control, the emergence of the Internet came as a cultural shock. Accordingly, there were arguments that the government should strongly control the Internet. There are several characteristics on the Internet regulation demand.

The government should take a strong control?

Recently, there is a demand that the government be strongly involved in the internet control.
It is, however, a censorship that is prohibited by freedom of expression that the government regulates the internet prior to law. For example, enforcing use of real names on the Internet (a rule undermining anonymity) in order to make the bulletin board 'sound' is a government censorship that weakens freedom of expression.

Unhealthy, anti-social material should be regulated?

Especially parents raise this kind of request. The parent generation get frustrated because they are not accustomed to expressing ideas on the Internet and they have much lower access to the Internet than that their children have.  Based on these reasons, they call on the government to take charge of moral regulations, the traditional obligations of parents.

The Korean Information and Telecommunication Ethics Committee closed 'Inoschool,' a community site discussing the problems like adolescent abscondence and voluntary resignation of a school by the reason that the site is too critical about school. The Information and Telecommunication Ethics Committee was criticized because people thought it neglected its duty to protect adolescents by excluding the students who left home or school, who actually need more protection.

The Effects the Internet Has on the Young

There has been much debate on the effects of media on teenagers. There is a study result that TV increases violence among adolescents, while other study says family environment and school life have more effect on their violent trait.

Statistics show decreasing pattern of juvenile delinquencies. While the number of teenagers using the Internet is increasing steadily, juvenile crimes are decreasing each year from 150,821 incidents in 1999, 151,176 incidents in 2000, 138030 incidents in 2001, to 123,921 incidents in 2002.

At the time of information deluge, that media education that can give students ability to discern good information is more necessary than anything is gaining ground. 'The online children protection committee' under the US congress, which is made of experts from every field, emphasized after its 2- year  study that one of the most desirable educations is to educate parents to guide their own children to use the Internet. As in teaching children rules  to cross a road and to prepare for unexpected situations, it argues that parents should help children to use the Internet while keeping safety.(

Regulation requests prefer a 'regulation based on technology' such as blocking software or Internet Contents Grading System.

This is because there are too many objects to regulate. The Internet made much more people than before express their ideas without telling a speaker from a listener, leading to a huge increase in the amount of contents. In order to regulate the increased amount of contents, there followed technical regulations including blocking technology.

It is very dangerous, however, to let machines decide freedom of expression without any clear evidence that mechanical blocking is effective in protecting adolescents.

In Korea, in particular, there were much discussions after the government started the Internet Contents Grading System. The system forces the designated sites as 'content harmful to minors' to attach electronic tags that the blocking software can catch. Especially the Korean government categorizes homosexual sites as content harmful to minors and those sites are often blocked.

For the government, Internet line, or big Internet service providers to single-handedly set the standards of blocking and to block the sites is censorship. What to block, or not should be decided only by users.

Blocking Homosexual sites is Human Rights Abuses

The Korean Women Sexual Minority Human Rights Movement Gathering, 'KiriKiri,' filed a petition to the National Human Rights Committee that blocking homosexual sites in PC rooms is an act to inflict human rights.

The revised law on records, videos and games fines the business runners less than 50 million won when they do not have blocking programs against obscene materials. And the blocking software installed in PC rooms has been blocking homosexual sites.

In April 2003, the National Human Rights Committee made a decision that homosexual sites are not content harmful to minors and blocking the sites is a human rights intrusion. And the Committee recommended homosexuality be deleted from article 7 in Minor Protection Law, 'standards of individual examination,' which is the basis of blocking homosexual sites in PC rooms and the Internet.

¡á Desirable regulations on the Internet

The Internet has comprehensive characteristics of various media such as publication, broadcast, and telecommunication. Therefore, there is heated debate over what regulation model from what media is to be applied.

Each medium has different regulation standards. For example, sexual expressions that are acceptable in newspaper, magazine, or movie are not acceptable in broadcast. Broadcasting uses electric wave, which is a limited public property, for private interest. Therefore, it should be run according to public's interest, convenience, or necessity. The broadcasting station has been under the government's regulation in case of broadcasting obscene materials, even when they were not illegal.

In 1997, when there was a debate in the U.S. about the law of decency in telecommunication that bans vulgar languages, the U.S. government emphasized the Internet should be regulated in the same way the broadcast is. However, then civil social group and the Philadelphia federal district court argued that telecommunication based on Computer is more like broadcast than publishing media.  It means that the Internet does not use electric wave, which is public property, like broadcast, and it is not a medium that only a few people can use. Therefore, their point is that it is unfair that the government treats the Internet the same as it does broadcast and regulate it the same.

Meanwhile, on June 27, 2002, the Korean Constitutional Court declared the article 53 of the electric and telecommunicational business law unconstitutional and pointed out that there should be a content regulation model proper to the Internet medium.

The Decision of the Constitutional Court. (June, 2002)
The Internet is, unlike wave broadcast, 'the most participatory market,' 'expression provocative medium.'

The Supreme court of Korea, in last July, made a ruling that even though the expressions on the Internet are somewhat harsh, if they are pure opinion or criticism, they should be respected considering the overall mood.

Many countries around the world are regulating the Internet according to general laws. Civic social groups contend that, as in published materials and books, direct regulations by the government should be limited to a minimum. They argue that it is enough for the writers themselves to take responsibilities based on the laws for the materials they posted on the Internet.

¡á The Laws Only for the Internet

Recently, the laws applied specially for the Internet, not general laws, are increasing. Regulating the Internet aside from general laws is being adopted for a fast and easy regulation. But this kind of regulation is not desirable because it can harm freedom of expression of the people rather than protecting people's interests.
For example, the law on the promotion of information and telecommunication net use and protection of information stipulates that a business player should take necessary measures like deleting, when the user files for defamation or infliction on personal interests. The law was introduced for quicker regulation by a business player than law, considering that information on the Internet spreads very fast. However, a business player is more likely to put regulations even when whether the case is really illegal is unclear, so there are more chances that people's freedom of expression will be limited more widely.

Copylefted by
Korean Progressive Network 'Jinbonet' 2003.

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