Thursday, October 4, 2012

When It Comes to Real Name Registration, State Media Editorial Says Readers Should Ignore South Korean Court's Declaration That Such Systems Violate Right to Free Speech

Beginning in late 2011, Beijing and other large municipalities in China began issuing regulations requiring micro-blogging platforms such as Sina's Weibo to verify users' identities. For example, on December 16, 2011 the Beijing Municipal Government Information Office, Public Security Bureau, Communications Administration, and Internet Information Office jointly issued the "Certain Provisions on the Administration of Micro-Blog Development" stating:
Any organization or individual that registers a micro-blog account and produces, reproduces, publishes, or disseminates information content shall use real identity information, and shall not carry out registration by falsifying or replicating a resident's identity information, business registration information, or organization code information. 
Websites that launch micro-blog services shall ensure that the authenticity of registered user information under the preceding paragraph.
According to an article entitled "Weibo Regulations a Step on the Right Path" published in the state-sponsored Global Times the day after Beijing issued the Provisions:
The new regulations, in theory, are pertinent to solving weibo's urgent problems without harming its good effects. South Korea has already ordered real-name registration for the Internet.
On December 22, the state-sponsored China Daily also sought to reassure readers that this was "Common Practice":
China is not the only country to resort to real-name registration to monitor the Internet. The government of the Republic of Korea started to implement a real-name authentication system on its major websites in 2007 to prevent Internet violence, fraud or malicious information spreading.
In 2009, the system was expanded to cover all websites with daily visits of over 100,000.
On August 23, 2012, the Constitutional Court of South Korea issued its decision in the application of Sohn et. al. unanimously holding that Korea's Internet real name systems were unconstitutional because "they infringe upon freedom of expression and autonomous control of personal data."

On August 24, 2012, the official state news agency Xinhua and the state-sponsored China Daily  published an editorial entitled "No Need to Be Overly Concerned About Korea Abolishing Its Real Name System" (不必对韩国取消实名制过分惊诧) by Wu Dingping (吴定平). An excerpt:
Korea's Constitutional Court recently officially declared that the Internet real name law that had been in effect since 2007 was henceforth abolished. Korea was one of the first countries to promote an Internet real name system, so does abolishing it after five years of implementation indicate that problems exist with the Internet real name systems? Should China continue with its implementation?
. . . .
On the one hand, at the time Korea originally implemented its Internet real name system, it did in fact provide a positive example for China to learn from, and even acted as our reference model. On the other hand, China's implementation of an Internet real name system was not mechanical mimicry, nor was it simply "copying." Therefore, the fact that today Korea has eliminated its Internet real name system does not mean that China should do so tomorrow. These two have no definite logical relationship. 
Why did Korea's love affair with its real name system come to an end? Fundamentally, there were no actual problems with the real name system, rather the main issue was that Korea had insufficient protections for personal privacy, and this led to significant pressure on, and resistance to, the real name system, and led ultimately to a fatal attack on it. Comparatively speaking, China has done a better job in this area. 
. . . .
The editorial went on to discuss what the author says are China's extensive legislative protections for user privacy which "serve as 'escort vessels' for the smooth implementation of the real name system." (为实名制的顺利推行起到“保驾护航”的作用)

Whether or not China's real name system will avoid the security concerns that plagued Korea's implementation, the fact is the editorial's premise is false: the South Korean Constitutional Court explicitly said it was NOT going to rule on the privacy issue. The Court's decision stated:
Applicant Sohn et al. further assert that the mandatory verification of user identity restricts bulletin board user’s right to privacy as it obliges the user to disclose the personal data such as name,resident’s registration number, etc. However, we have already explained that the mandatory verification of user identity restricts user’s right to autonomous control of personal data, which is a concrete manifestation of the right to privacy. As we shall decide whether the restriction of user’s right to autonomous control of personal data amounts to infringement, there is no need for us to rule upon the alleged infringement of the right to privacy.
Instead, the Court said that "the focal issues of this case are whether the restrictions imposed by the mandatory verification of user identity are disproportionate and excessive."

Ultimately, the Court found as follows:
We find that the mandatory verification of user identity stipulated in the provisions under review operates as prior restriction of freedom of expression. It discourages expression in general and thus restrains constitutionally protected speech and it hampers free formation of public opinion which is at the heart of democracy. The provisions under review impose excessive restrictions and infringe upon freedom of expression and autonomous control of personal data of Applicant Sohn et al. and upon freedom of press, etc. of Applicant Company.
An English translation of the Korean Court's decision by Professor Keechang Kim, Korea University Law School is available here: