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.(http://www.copacommission.org) |
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.
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