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1. The author of the
communication is Mr. Kim Jong-Cheol, a Korean national. He claims to be a
victim of violations by the Republic of Korea of his rights under articles
19, paragraph 2, 25 (a) and (b), and 26 of the International Covenant on
Civil on Civil and Political Rights. He is represented by counsel.
FACTUAL BACKGROUND
2.1 On 11 December 1997, the author, a journalist, published an article in a
national weekly publication, reporting on opinion polls, between 31 July and
11 December 1997, for the Presidential election of 18 December 1997. In
February 1998, he was charged by the District Attorney for violating section
108 [FN1] of the Election for Public Office and Election Malpractice
Prevention Act (hereinafter the "Election Act"), which prohibits publication
of public opinion polls during the electoral campaign period.(1) According
to article 33 (1), the presidential campaign period is 23 days. The Election
Act imposes criminal liability for the disclosure of political opinion polls
for the 23 day period running up to and including election day. [FN2] On 16
July 1998, the author was found guilty as charged by the Seoul Criminal
District Court Collegiate Division and fined 1,000,000 won (approx. 445
USD).
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[FN1] It stipulates that " No person may publish or quote in a report the
details and result of a public opinion poll (including a mock voting or
popularity poll) making a degree of support to a political party or a
successful candidate anticipated, in connection with an election, from the
day the election period commences to the time the voting is closed on the
election day."
[FN2] According to article 256(1), as amended, "any person who discloses the
details and result of a survey of public opinion, or makes a report citing
them or makes another person do so, in contravention of the provisions of
article 108(1)………with imprisonment for not more than two years, or a fine
not exceeding four million won.
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2.2 The author appealed this decision and at the same time challenged the
constitutionality of the related provisions of the Election Act before the
Constitutional Court. On 28 January 1999, the Constitutional Court declared
the relevant provisions of the Election Act constitutional, finding that the
length of the ban suppressing the publication of polls during the electoral
campaign period was reasonable to ensure a fair and undistorted election
result. In its judgement, it referred to a study which allegedly
demonstrates that a public opinion poll may encourage voters to move toward
a candidate with a stronger chance of winning (so-called "bandwagon
effect"), or may add sympathy votes to the underdog (so-called "underdog
effect"), thereby distorting the will of voters. On 13 April 1999, the High
Court upheld the District Court's decision, and on 20 August 1999, the
Supreme Court dismissed the author's appeal.
THE COMPLAINT
3.1 The author claims that his conviction violates articles 19, paragraph 2,
and 25 (a) and (b) of the Covenant. He contends that the ban on the
publication of polling results during the campaign period has not been shown
to promote fair elections, as the Constitutional Court simply speculated
that publication of polls could swing votes both towards and away from
particular candidates. The Constitutional Court's reasoning is based
primarily on an unsubstantiated academic theory (the "bandwagon" and
"underdog" effects) and cannot be invoked to deprive the author of his right
to freedom of expression and provision of information based on such an
uncertain "theory". In fact, according to the Constitutional Court's own
reasoning, the two possible adverse effects may theoretically cancel each
other out.
3.2 The author considers that, as a journalist, article 19 guarantees him
the right to discharge his professional duty, by reporting pertinent news
information to the reader. His duty to report is a prerequisite to the
public right to access information and the particular ban is an excessive
and disproportionate restriction.
3.3 The author claims that Section 108 (1) of the Election Act violates
article 25 (a) and (b), as it denies the free and full exchange of
information, which is vital to voters in forming their will meaningfully.
Results of reliable public opinion polls provide relevant and meaningful
information of interest to voters. By being informed of the candidates'
prospective standing in an election, voters may freely form or modify their
own opinion about the candidates.
3.4 The author argues that the ban unreasonably discriminates between
persons with direct access to polls (taking polls itself not being unlawful)
and those who do not have such access, and that this leads to distortions in
the forming of voter will. He contends that as readily-accessible foreign
media are not restricted in the publication of poll data, the ban serves no
effective purpose. Finally, he argues that the State party has not
demonstrated any negative effect on the election caused by the author's
publication, and that accordingly his punishment was unjustified.
3.5 The author states that the matter has not been submitted to another
procedure of international investigation or settlement and that he has
exhausted domestic remedies.
STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND MERITS AND AUTHOR'S COMMENTS
THEREON
4.1 On 22 February 2002, the State party provided its submission on
admissibility and merits. It invokes to the Constitutional Court's decision,
which considered that restrictions on the publication of public opinion poll
information for the time necessary to guarantee a fair election does not
constitute a violation of either the Constitution or the Covenant. It refers
to article 37 (2) of the Constitution, which provides that the freedoms and
rights of citizens may be restricted by law only when this is essential for
national security, maintenance of order or public welfare, as well as
article 19, paragraph 3 of the Covenant. It argues that the guarantee of
fair elections is an integral part of public order in a democratic society.
The length of the period of restriction cannot be considered as excessive or
discriminatory.
4.2 The State party submits that the Constitutional Court's reasoning is not
based on theory or possibility, but on the country's own experience. It
takes into account how vulnerable the election culture and climate have been
to political manipulation and irregularities in the Republic of Korea in the
past. Unfairly or partially-manipulated public opinion poll results released
prior to an election have often affected the choices of voters, thus
jeopardizing a fair election. Nevertheless, the State party submits that
over time, once the political climate has matured, the ban on the
publication of public opinion poll results could be lifted.
5. On 31 July 2003, the author commented on the State party's submission,
stating that there is no connection between his reporting of the public
opinion polls and the so called, "political manipulation and irregularities"
concerning the election, and that it was the government itself that was
responsible for creating an the "election culture and climate" that was
"vulnerable to political manipulation and irregularities". In his view, such
manipulation was made possible partly because the government had imposed
restrictions on the freedom of expression and free access to information in
relation to elections. The State party has not explained what kind of harm
the author had caused by reporting the results of the poll and how the ban
was related to the desire to ensure a fair election. It also did not make
the necessary connection between the punishment of the author and the
grounds on the restriction of the right to freedom of expression stipulated
in the Covenant.
STATE PARTY'S SUPPLEMENTARY SUBMISSION
6.1 By submission of 28 June 2004, the State party recalls that the Election
Act is designed to ensure that public elections are fairer by preventing
them from being adversely affected by biased or manipulated public opinion
polls, thereby influencing voters with incorrect information. Even if
conducted in a fair and objective manner, such polls can influence voters
through the "bandwagon" and "underdog" effects.
6.2 While acknowledging that abuse of power by some political actors has in
the past undermined the quest for fair elections, the State party denies
that the government is responsible for the current election culture. Today's
media has grown in terms of social and political power that has crucial
effects on opinion making, especially on elections. Under the Election Law,
the Government has a legal duty to improve the electoral culture by
preventing interference with the election outcomes by publication of
incorrect opinion poll results by the media. Finally, it submits that it
does not have to prove the harm done by the publication of public opinion
polls in each individual case to justify enforcement of the law.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the complaint is admissible under the Optional
Protocol to the Covenant.
7.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for the
purposes of article 5, paragraph 2 (a) of the Optional Protocol. With
respect to the exhaustion of domestic remedies, the Committee notes that the
State party has not claimed that there are any domestic remedies that have
not been exhausted or could be further pursued by the author.
7.3 As to the author's claims under articles 25 (a) and (b), and 26 of the
Covenant, the Committee considers that the author has insufficiently
substantiated these claims for the purposes of admissibility. Thus, it finds
these claims inadmissible under article 2 of the Optional Protocol. The
Committee proceeds immediately to the consideration of the merits as it
relates to the claim under article 19 of the Covenant.
CONSIDERATION OF THE MERITS
8.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided for in article 5, paragraph 1, of the Optional Protocol.
8.2 The Committee notes that the issue before it is whether the author's
conviction, under Section 108 (1) of the Election for Public Office and
Election Malpractice Prevention Act, for having published an article on the
results of opinion polls during the campaign period of the Presidential
election, violates article 19, paragraph 2, of the Covenant. Article 19,
paragraph 2, of the Covenant guarantees the right to freedom of expression
and includes "freedom to seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media". The Committee considers
that through his articles, the author was exercising his right to impart
information and ideas within the meaning of article 19, paragraph 2, of the
Covenant.
8.3 The Committee observes that any restriction of the freedom of expression
pursuant to paragraph 3 of article 19 must cumulatively meet the following
conditions: it must be provided for by law, it must address the aims
enumerated in paragraph 3 of article 19, and must be necessary to achieve
the purpose. The restrictions were provided for by law, under Section 108(1)
of the Election for Public Office and Election Malpractice Prevention Act.
As to whether the measures addressed one of the aims enumerated in paragraph
3, the Committee notes that the State party maintains that the restriction
is justified in terms of the protection of public order (paragraph 3(b). The
Committee considers that, to the extent that the restriction relates to the
rights of Presidential candidates, this restriction may also fall within the
terms of article 19, paragraph 3 (a)(necessary for the respect of the rights
of others). The Committee notes the underlying reasoning for such a
restriction is based on the wish to provide the electorate with a limited
period of reflection, during which they are insulated from considerations
extraneous to the issues under contest in the elections, and that similar
restrictions can be found in many jurisdictions. The Committee also notes
the recent historical specificities of the democratic political processes of
the State party, including those invoked by the State party. Under such
circumstances, a law restricting the publication of opinion polls for a
limited period in advance of an election does not seem ipso facto to fall
outside the aims contemplated in article 19, paragraph 3. As to the issue of
proportionality, the Committee notes that, while a cut-off date of 23 days
prior to the election is unusually long, it need not pronounce itself on the
compatibility per se of the cut-off date with article 19, paragraph 3, since
the author's initial act of publishing previously unreported opinion polls
took place within seven days of the election. The author's conviction for
such publication cannot be considered excessive in the context of the
conditions obtaining in the State party. The Committee also notes that the
sanction visited on the author, albeit one or criminal law, cannot be
categorized as excessively harsh It is not, therefore, in a position to
conclude that the law, as applied to the author, is disproportionate to its
aim. Accordingly, the Committee does not find a violation of article 19 of
the Covenant in this regard.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it do not disclose a
violation of the International Covenant on Civil and Political Rights.
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.
An Individual opinion signed jointly by Committee members Mr. Abdelfattah
Amor, Mr. Prafullachandra Natwarlal Bhagwati, Mr. Alfredo Castillero Hoyos,
Ms. Christine Chanet, Mr. Ahmed Tawfik Khalil and a separate opinion signed
by Committee member Ms. Ruth Wedgwood are appended to the present document.
APPENDIX
INDIVIDUAL OPINION (DISSENTING) BY COMMITTEE MEMBERS, MS. CHRISTINE CHANET
AND MESSRS. ABDELFATTAH AMOR, PRAFULLACHANDRA NATWARLAL BHAGWATI, ALFREDO
CASTILLERO HOYOS, AHMED TAWFIK KHALIL AND RAJSOOMER LALLAH
We observe that any restriction of the freedom of expression pursuant to
paragraph 3 of article 19 must cumulatively meet the following conditions:
it must be provided for by law, it must address one of the aims enumerated
in paragraph 3(a) and (b) of article 19, and must be necessary to achieve a
legitimate purpose. While the State party has stated that the restrictions
in this case were justified in order to protect public order and were
provided for by law, under Section 108(1) of the Election for Public Office
and Election Malpractice Prevention Act, we do not consider that the
measures taken against the author were necessary for the purpose stated. We
note that the State party has invoked public order by reference to the
desire to ensure free and fair elections and the fear that the media may
manipulate public opinion by publishing inaccurate opinion poll results. It
has also referred to a desire to avoid feared 'bandwagon' or 'underdog'
effects on the electorate. We consider however that the State party has
failed to demonstrate the reality of the threat which it contends the
exercise of the author's freedom of expression posed; nor has it explained
why its electorate should be deprived of information that could help them
ensure an electoral outcome most consistent with their overall political
preferences. We also note that the alleged 'bandwagon' and 'underdog'
effects are mutually contradictory, and further stress the unusually long
period of 23 days required by the law. We conclude that the arguments
advanced by the State party are insufficient to make the restriction of the
author's right to freedom of expression compatible with paragraph 3 of
article 19. Accordingly, we consider that the facts before the Committee,
disclose a violation of article 19, paragraph 2, of the Covenant.
[signed] Mr. Christine Chanet
[signed] Mr. Abdelfattah Amor
[signed] Mr. Prafullachandra Natwarlal Bhagwati
[signed] Mr. Alfredo Castillero Hoyos
[signed] Mr. Ahmed Tawfik Khalil
[signed] Mr. Rajsoomer Lallah
Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.
INDIVIDUAL OPINION (DISSENTING) BY COMMITTEE MEMBER MS. RUTH WEDGWOOD
I join six of my colleagues on the Human Rights Committee in concluding that
South Korea's criminal statute banning the publication of political polling
data during an election campaign is inconsistent with Article 19 of the
Covenant on Civil and Political Rights.
South Korea's "Election Malpractice Prevention Act" forbids publishing or
quoting the "results" of public opinion polls, and any details of the polls,
during the entire interval of a political campaign. Thus, throughout the
23-day campaign period for the South Korean presidency, no writer or
political analyst may speculate which candidate is ahead or behind, or which
party's political platform is winning the approbation of the public, if this
characterization is based on any attempt to sample the views of voters.
This muzzles what citizens can say and write, as well as the free expression
of journalists. The statute restricts what a political party could say about
the scope of its public support, and applies to local campaigns as well as
national contests. The absence of any definition of a "poll" would
apparently forbid even a mock election among members of a local soccer club.
This limit on writing and speech is especially harsh, because it is
punishable by imprisonment for up to two years, though here the criminal
penalty applied was a monetary fine.
Some might welcome an interval in which elections were not discussed as a
horse race. But the complete ban for the duration of a campaign of any
polling about political candidates and political parties also hobbles the
ability to discuss issues and controversies. The prohibition means that no
journalist could discuss on national radio or mention in a newspaper column
that, based on public opinion sampling, a particular candidate appears to
have gained support in a contest and that such support was tied to the
candidate's views on an issue of the day.
The state party has argued that election polls may be "incorrect" and that
the media has "growing power," and seeks to justify the ban as a way of
protecting "public order." See paragraph 6.2 supra. But public opinion polls
may also be seen as part of the conversation between candidates and
citizens. They can provide one of the safeguards for honest elections in
both emerging and established democracies. And in any event, under Article
19 of the Covenant, citizens enjoy the right to "hold opinions without
interference," the right to "freedom of expression," and the right to "seek,
receive and impart information and ideas of all kinds, … either orally, in
writing, or in print."
The state party has not shown that its flat ban on any published sampling of
the evolving views of voters is a justifiable restriction in light of the
Covenant's broad guarantee of freedom of expression.
In a challenge to the statute before the Constitutional Court of South
Korea, a "contending" judge noted that "the freedom to exchange opinions is
an absolute precondition to the system of Democracy." That prescient
statement is reflected in the Covenant as well.
[signed] Ms. Ruth Wedgwood
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Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly. |
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