Freedom of speech and publication, unlike physical and economic freedom, is mental and political freedom. In modern society, any system usually takes freedom of speech for granted, and Korea's Constitution is not an exception.

Though freedom of speech and publication is not an absolute value, its essence should not be violated, as a natural right, whether indicated in the Constitution or not. In this respect, it is excessive to suppress the press under the cloak of Constitutional provisions of newspaper functions and forcibly infringe on journalists' autonomy in the name of press arbitration and redemption laws.

Though every society requires laws, their role is not to subjugate people. In modern society, the press' freedom of speech is as important as that of individuals. Regulating the press' freedom of speech in order to protect that of individuals runs against the principle of equality. The government's intention to suppress the newspapers, unlike the case with broadcasting which has limited freedom for the reason of lacking radio resources, is an outdated idea.

Oppression of the press has occurred in cases such as when Lenin confiscated newspaper and publishing companies owned by capitalists and landowners in order to propagate workers' freedom of speech during the 1917 Revolution, or when the French government punished pro-German journalists in 1944 who betrayed their own nation during World War II.

The newspaper law enacted in 2005, especially with several provisions on freedom of speech, appears too harsh. This law has many unconstitutional factors, including several listed below.

First, the newspaper law intends to artificially restrict freedom of expression, a natural basic right of men. It restricts editorial rights, which should be shared by CEOs and journalists of newspapers in accordance with modern divisions of labor, in the name of law. Demanding that all newspapers provide balanced reporting may interfere with unique and diverse perspectives. Though news should be precise and reliable, comments should be able to reflect the unique opinions of each group. In addition, maintaining equity and having regard for the public's interest is a matter of journalistic ethics, not a legal obligation of newspapers which are characterized as public and commercial. In this sense, this law may end up imposing uniform legal restrictions on newspapers.

Second, this law can give the Korea Commission for the Press power to control the press, leading to the degradation of all newspapers in the long run. Limiting the right to select news reports and comments with the excuse that it nobly allows equal access for smaller newspapers is nothing more than displaying jealousy towards the major papers. It is better to let minor newspapers compete with each other based on their quality. In fact, there is no justified reason for applying the limited market share rule to only newspapers. To protect the readers' right to read only what they want to read, it is recommended to revise the Fair Trade Law by setting the upper limit of the market share for an individual newspaper company at 40%, and that for 3 papers at 80%, so as to maintain the superior quality of newspapers. The unnecessary creation of many laws can only arouse public concern and benefit a small number of lawyers.

Third, the law may push people to read a certain paper and lose their ability to reject some of the things they read, which ultimately infringes on the readers' rights of information selection. A newspaper's circulation system, of course, should be improved as well, which, however, cannot be carried out by the government. One way is to establish a paper circulating center through coordination by the different newspapers' sales department. The unwanted leaflets included with newspapers are also annoying to readers. In this aging society, the elderly have difficulty disposing of the tremendous amount of leaflets by themselves.

Fourth, even though the press arbitration system is flexible to some extent from the reader's perspective, in toto it limits the autonomy of the press by and large. There are more provisions that threaten protection of free speech, such as forcing newspapers to have a transformed Ombudsman, establishing deliberations on newspapers' infringement of legal benefits, and imposing liability without fault on newspapers.

It is absolutely unreasonable for lawmakers representing the Korean people to enact a law which would suppress freedom of speech, a basic right of people, for factional interests.

People should enjoy their freedom of the mass media. The only simple solution to this is that the Constitutional Court finds this law, which in its current state would bring about a number of side effects rather than benefits, unconstitutional as soon as possible.

Ryu, Il Sang (Chairman of Klep/Dean of Graduate School of Journalism & Mass Communications, Konkuk Univ.)

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